Talking to her children through the chain-link fence at their day care, Vicki Lee tried to explain why she wasn’t able to hold them, hug them or take them back to her house to watch movies and eat popcorn, like they used to.
“They’re just 8 and 5 years old,” Lee said. “They don’t understand custody issues or why their two mommies aren’t together anymore.”After more than 10 years of dating, Lee and her partner decided to have children. Through artificial insemination, her partner became pregnant and a young family was started.
“We found an African-American sperm donor for my ex, she’s Caucasian, so the kids would reflect our skin tones,” Lee, who is African-American, said. “We did everything to protect ourselves. I spent thousands of dollars on getting all the right paperwork that I thought would protect me and my children. The state was happy taking my money.”
But, much like many relationships, Lee and her partner separated. Her ex was soon living with another woman.
“I didn’t want to fight for the house or any of the things. I didn’t want to push for anything that would make the children feel uncomfortable or nervous,” Lee said. “That is, and always will be, my first priority.”
Lee moved out and tried to keep contact with the kids. She said she even tried to pay child support. But she said her ex was not interested.
Lee protested and the case went to court, only to be told that she was a legal stranger to the children, and because Utah doesn’t allow for unmarried couples to jointly adopt children, she had no leg to stand on. This came despite an assessment from a court evaluator that said it was in the best interest of the children to maintain contact with Lee, and that the kids saw her as a parent, Lee said.
“I am not allowed to talk to my kids on the phone. I can’t see them at Christmas, and it is slowly killing me. I couldn’t sleep for about two years. There’s no words to describe the pain of knowing where they are and not being able to see them,” Lee said. “Every time I drive past their day care my stomach falls. Just knowing they’re in there makes my heart hurt. It’s been three years now and not a day goes by that I don’t wish that I could have some sort of contact with my kids. Any contact at all.”
Lee knew visiting her kids through the chain-link fence at the day care could get her in trouble. But their birthdays were coming up, and she knew she had to get them something, even if she wouldn’t be able to deliver it personally. She would just have to leave the perfectly wrapped presents with the cards on their doorstep and leave.
“I don’t want them to think their mom has abandoned them,” Lee said. “I didn’t know what they wanted, so I broke the rules and went to their day care. I knelt down behind the fence and asked them what they wanted. They kept asking me to hold them, to take them back to my house so we could watch movies. It damn near broke my heart.”
Unfortunately, in Utah there’s not much that Lee can do to see her children, Lauren Barros, a family law attorney, said.
The Utah Supreme Court ruled on a case almost identical to Lee’s in the case Jones v. Barlow, for which Barros was a representative. In the case, Keri Jones was denied any visitation opportunities from her ex-partner, Cheryl Barlow, who was the biological mother of their daughter. The court ruled that Jones had no legal right to see the child, despite all the family planning and legal documents that the couple had drafted prior to their separation.
The ruling was a large blow to same-sex families in Utah, but it is frequently used to separate the families by a biological parent after a same-sex couple separates, Barros said. The Jones v. Barlow ruling was used against Lee.
“In order to get around this ruling, couples would have to adopt out of the state or there would have to be a change in Utah law that would allow second-parent adoptions,” Barros said.
The Jones v. Barlow case pits the community against itself and engenders a divisive community, said Heidi Shelton, a member of a support group for women like Lee who lost visitation to their children called Traitor Jane. The group meets regularly and has about 30 regular attendees.
“These people are out there fighting for gay marriage, but when they would have to follow the same rules that straight married couples have to follow, they stop the train,” Shelton said. “It’s sick how much these women are hurting their partners and then turn around and say they are advocating for equal rights.”
The Utah Legislature prohibits a second parent from adopting a child if the couple is not married, and because gays and lesbians cannot marry in Utah, this law effectively bars same-sex couples from adopting. Several attempts have been made to overturn the law and allow for second-parent adoptions, even as recently as in the 2011 session, but none have advanced.
If gay couples were allowed to adopt children jointly, they would be able to pursue the same legal outlets for visitation rights that straight couples have, Barros said.
“We have to fix that law. It is so important. There’s a lot about gay rights going on, and it’s all great, but this law needs to be fixed right now,” Shelton said.
Some days Lee does OK and is able to function, but there are others when the pain of her loss renders her almost inert.
“Some days it’s all I can do to go to work and come home,” Lee said. “But I just want everyone to know the pain I am going through and I don’t want other young girls to go through the same pain. No one ever thinks it can happen to them. But I’m here to tell you that it can.”
*Editor’s note: The original and published version said the following: “Instead, she got a restraining order against Lee, preventing her from having any interaction with the children, Lee said.” No legal record of a restraining order was found before the termination of guardianship by the court.