Courting Change: Queer Parents, Judges, and the Transformation of American Family Law

Appendix 3: Interview Questions for Judges

191 Appendix 3 Interview Questions for Judges I. Professional background: 1. How long have you been (or were you) on the family law bench? 2. Did you practice family law before being elected (or appointed) to the bench? II. General questions regarding custody cases involving gay/lesbian parents: 1. For divorce cases (heterosexual marriage ends when one party comes out as gay or lesbian, and there is an ensuing custody/ visitation case): Have you seen this type of case? What were the major issues? How did you rule? (or, if you have not seen this type of case, what types of issues do you think it would raise)? What types of issues are generally raised by each side and for you (or other family court judges)? 2. For lesbian co-parent cases (when a pair of lesbians splits up after one had a child through artificial insemination): Have you seen this type of case? What were the major issues? How did you rule? What types of issues are generally raised by each side and for you (or other family court judges) that are different from those raised by cases involving traditional heterosexual families? 3. For second-parent adoption cases (where the same-sex life partner of the biological or officially adoptive parent would like to formally adopt the child as well): Have you seen this type of case? What were the major issues? How did you rule? If you have never seen this type of case, would you allow such an adoption? Why or why not? If adoption is not feasible, what would you suggest to a second parent who would like to 192 | Appendix 3 formalize or protect his/her relationship with a child that is not biologically related? 4. With regard to expert witness testimony (clinical psychologists, social workers, experts in child development or in sexual orientation)—how do you evaluate its relevance and validity? When do you allow it? How do you deal with competing claims from opposing experts (for example, an expert on one side claims that sexual orientation is likely to be transmitted from parent to child, while an opposing expert refutes that claim)? 5. How do statements and research reports from expert groups, such as the recent one from the American Academy of Pediatrics (or statements from the American Psychiatric Association), affect your decision-making, if at all? Do these have an impact on your thinking about the best interest of child? 6. The “best interest of the child” standard purposefully allows discretion to the judge—how do you interpret your role, and how far do you extend that discretion? Do you rely on any particular set of standards to determine best interest? What do you think constitutes an abuse of discretion? 7. Statutory considerations: How do you weigh best interest of the child against statutory law (for example, if a lesbian co-parent wants to adopt a child and the adoption statutes does not specifically allow for two parents of the same gender)? What issues are best left for legislature? 8. How do you determine what constitutes harm to a child? How do you deal with claims of stigma affecting a child? 9. How do you interpret and weigh rights (rights of parent vs. rights of child)? What do you do when a conflict arises between the two? Or between these rights and statutes? Do you think constitutional claims based on due process or equal protection are valid in the family law arena? III. Hypothetical case situations (in each, what types of problems would this case pose for you? What are the most salient issues for you? How would you handle this case?): 1. Joan and Paula (two lesbians) were in a committed marriagelike relationship for 10 years. They decided together to have a child, and Joan was artificially inseminated and carried the child to term. After the child was born, the two shared equally Appendix 3 | 193 the responsibility of raising the child (Ann) and providing financially for her. Ann calls both Joan and Paula “mommy.” When Ann was 6 years old, Joan and Paula broke up and moved into separate homes. They are unable to resolve on their own the issue of who should have primary custody of Ann. Joan tells Paula she is not the real (or legal) mother, and therefore has no right to visitation or custody; Paula tells Joan that she is indeed Ann’s mother...