The Gayby Predicament

When two moms split, one may never get to see her child again. It's the law.

Proof Cleveland Play House, 8500 Euclid Avenue Through February 2, 216-795-7000.
At 51, having children wasn't at the top of Katharine Dvorak's to-do list. But her partner of two years, Evangeline Jones, was three decades younger and felt the motherly urge. Dvorak didn't want to stand in her way. "It would be depriving her of the chance to do this in her life," Dvorak thought.

A professor of history and philosophy in Dayton, Dvorak does nothing halfheartedly. So in 1993, when she and Jones began seriously discussing children, they plunged in with both feet, spending hours discussing schools, discipline, even whether to circumcise a boy.

Unlike straight couples, they also faced decisions about which one of them would be the birth mother and where they would find a sperm donor.

Jones's youth made her the logical choice to carry the child, but Dvorak wanted to have a genetic connection too. The couple considered choosing one of Dvorak's two brothers as the donor, but decided it might create complications. Besides, Dvorak's sister-in-law had tried and failed to have a child herself; it seemed insensitive to ask her husband to be a father.

Ultimately, the women decided on an anonymous donor, one of Czechoslovakian and German descent, like Dvorak. To cement their mutual connection with the baby, the women decided that if it were a girl, they would name her Cheyenne Madison after their hometowns: Cheyenne, Wyoming, and Madison, Wisconsin.

The couple attended birthing classes together. "We were the only lesbian couple there," Dvorak says. By April 1995, the baby was three weeks late, and the doctor decided to induce labor. It was an arduous 14-hour delivery, but finally, at 6 a.m. on April 21, Jones gave birth to a baby girl.

Jones was the primary caregiver at first, but when her maternity leave ended, she went back to her job as a counselor for troubled adolescents. Dvorak became a stay-at-home mom. At night, when she put Cheyenne to bed, Dvorak said prayers with her. If Cheyenne couldn't sleep, Dvorak sat in a rocker under a ceiling of glow-in-the-dark stars and sang her lullabies.

"One thing that Cheyenne taught me is what love is about," Dvorak says. "The love you feel for that kid is so fierce, so wonderful."

But the domestic bliss didn't last. In 1996, Jones stayed out all night with a male friend, sparking an argument with Dvorak. "I became very upset," Dvorak says. "And we probably had our first fight. She accused me of not trusting her."

(Jones could not be reached for comment, and her attorney did not respond to repeated interview requests.)

The relationship degenerated further that winter. Jones announced she was moving out of their bedroom. She needed more space, she said. She took to sleeping on the couch, where Dvorak would find her lying awake in the middle of the night.

"What's wrong?" Dvorak asked. "Is there anything I can do?"

"I'm just thinking a lot," Jones answered.

March 30, 1997, was Dvorak's 55th birthday, but it wasn't a happy one. She quarreled with Jones over who would take care of Cheyenne. That night, Dvorak heard a knock on her door. She opened it to find Jones holding Cheyenne in her arms.

"I'm leaving," Jones said. "I can't take this anymore."

Jones walked out, taking Cheyenne with her. It was the beginning of a dispute that would cost Dvorak the chance to see her daughter grow up.

It's called the Gayby Boom. In the early 1990s, gay and lesbian couples began having children en masse, either through adoption or artificial insemination.

Quantifying the trend hasn't been easy, because the census only recently began counting same-sex couples, but an October report by a marketing group estimated there may be as many as two million gay and lesbian households with children. A lesbian couple recently appeared on the front page of The Washington Post after giving birth to the area's first baby of 2003.

Yet laws have been slow to keep pace with the trend and vary widely from state to state. The lesbian couple in The Post, for example, had recently moved to Maryland from Virginia, where gay and lesbian couples cannot share parental rights through second-parent adoption. In contrast, a Pennsylvania court recently ordered a lesbian to pay child support for her ex-partner's kids.

Ohio and about half the other states haven't yet allowed gays and lesbians to adopt partners' kids. The only Ohio appeals court to rule on the issue rejected second-parent adoption.

Ohio law allows anyone to adopt, regardless of sexual orientation, but a literal reading of the statute suggests that only a married couple can co-adopt, and a person must be married to adopt a partner's child. Since gay marriage is illegal, those families are left in legal limbo.

Take Claire Zehnith. The Cleveland Heights two-year-old is typical of girls her age. She likes Clifford the Big Red Dog, Winnie the Pooh, and Madeline. She spends her days visiting the library and the natural history museum, and is looking forward to the imminent arrival of a sibling.

"Claire, what's in Mama's belly?" asks her mother, Keli.

"A baby!" Claire answers.

"And what are you going to be?" Keli asks.

"A big sister!" Claire says.

But unlike most of her peers, Claire's parents are lesbians. Her biological father is a family friend who agreed to donate sperm. The only parents she's ever known are her two mommies: Keli Zehnder and Deb Smith. Zehnder is her biological mother, but only because Smith tried and failed for two years to get pregnant. Each woman donated half her last name to form Claire's.

Ohio, however, doesn't consider Smith a parent. She is a roommate, a baby-sitter, Claire's mother's partner -- anything but a mother. It doesn't matter that she's the family breadwinner, earning money as a massage therapist while Zehnder studies for her master's in special education. Nor does it matter that Claire and everyone who knows the couple consider them equal partners.

The issue involves more than semantics. When Smith takes Claire to the doctor, she must carry a piece of paper that gives her consent to make medical decisions. Zehnder has written into her will that if she dies, Smith should get custody, but they both know it's not a sure thing. Smith has little legal claim to the girl she considers her daughter.

"People who have been married for a minute have more rights," says Smith.

"People who have a one-night stand, if he was named on the birth certificate, he has more rights than you," Zehnder tells her.

The problem becomes more profound when couples break up. Straight couples have a whole arena of law to deal with messy custody disputes, but gays and lesbians have little more than promises made when times were good. As anyone who has seen a nasty divorce knows, those promises often go unfulfilled.

"People have used those very same laws that they would have decried, they've used those same homophobic laws to deny their partners custody or visitation of their children," says Corri Planck, a spokeswoman for the Family Pride Coalition, a national gay and lesbian parents' organization.

Even if the legally recognized parent gives up rights to the child, the law still treats the partner as a virtual stranger. A partner may have to go through months of adoption training to qualify to parent a child she already nurtured for a decade. Meanwhile, the kid languishes in the state's overcrowded foster-care system.

It's a situation Planck regards bitterly: "We're trying to take responsibility for the child, when usually people are trying to get off the hook."

Katharine Dvorak discovered just how few rights she had when Jones stormed out of her life, taking Cheyenne and moving in with a friend. Over the next several weeks, Dvorak inquired frequently about seeing her daughter.

"How about tonight? How about tomorrow?" Dvorak would ask.

"I don't know what I'm doing tonight," Jones would answer. "I don't even know what I'm doing an hour from now."

Eventually, the women worked out a compromise: Dvorak could visit Cheyenne for eight hours each week. But as time wore on, Jones cut visitation to six hours every other week, and never on holidays, Dvorak says.

By 1998, Jones had stopped the visits entirely. She said Dvorak could see Cheyenne only if she handed over a baby book they had made.

Dvorak scoured her cluttered house looking for the book and eventually found it in the garage, buried in a box of stuff Jones left when she moved out, Dvorak says. Jones allowed Dvorak biweekly visits again, but granted little else.

In 1999, Dvorak asked if she could take Cheyenne to Wisconsin to meet her relatives. Jones refused, so Dvorak took a camera and snapped photos of her family. "See, these are your cousins in Wisconsin," she told Cheyenne as she flipped through the photos.

The exchange enraged Jones. She claimed that Dvorak's family wasn't related to Cheyenne and that saying so was confusing the little girl. Jones accused Dvorak of violating her parental wishes and declared that she would no longer have visitation.

With no other recourse, Dvorak went to court. Her attorney argued that Dvorak should be treated as a de facto parent because "she functioned as one of the child's parents during her first two years of life, and was treated by the mother and child as a noncustodial parent during the past two years."

Jones in turn argued that Dvorak functioned simply as a "baby-sitter." She claimed Dvorak was unstable, went into "rages" in front of Cheyenne, and made comments that were "detrimental and confusing" to the child -- namely, claiming to be her mother and claiming that Cheyenne had cousins on her side of the family.

A court hearing revealed some of Jones's claims as suspect. A baby-sitter testified Dvorak did not "blow up" in front of the child. And the baby book, which Jones was so intent on getting back, included entries in Jones's handwriting that said Cheyenne had "two mommies." It also listed Dvorak's history and heritage on the page normally reserved for the father.

Still, the magistrate sided with Jones, likening Dvorak to "a stepfather with whom an out-of-wedlock child has been raised since birth, and is now party to a divorce with the biological mother." An appeals court upheld the decision last May.

The ruling surprised the National Center for Lesbian Rights, an advocacy group based in San Francisco that had written a brief in support of Dvorak.

"I thought we had a strong chance of winning that case," says Courtney Joslin, a staff attorney for the NCLR. "There was quite strong case law in Ohio recognizing that people who act as a parent may have some rights and responsibilities to the child."

It has now been three years since Dvorak lost contact with Cheyenne. The Christmas presents she sent in 2001 were sent back marked "refused." Asked if she expects to see her daughter again, Dvorak says, "When I'm 71 and she's 18."

That's a decade away. In the meantime, Dvorak writes in journals that she hopes will one day find their way to Cheyenne. She's filled 22 so far. "I tell her about things that happened to me during the day. I tell her about my values, my thoughts," Dvorak says. "It helps me. And I hope it will help her some day to know that I didn't abandon her."

Last summer, the state Supreme Court took a tentative step toward resolving the problem of gay parental rights. In a case involving two Cincinnati lesbians who parented six children, the court ruled that gays and lesbians could enter into custody agreements together.

But the case was far from a slam dunk for lesbian rights. The court refused to grant legal parental status to the woman who wasn't biologically related to the children. Initially, the court also declared that "second-parent adoption is not available in Ohio," but a month later agreed to delete that phrase. The court hasn't heard a case on second-parent adoption yet, so its legality remains an open question.

The problem comes in the wording of Ohio statutes. Among those who can adopt, the law lists "a husband and wife together," "an unmarried adult," or "a married adult" if his or her spouse is the child's parent and consents to the adoption. That leaves gays and lesbians, who cannot get married, out of the picture.

State lawmakers could settle the issue by revising the statute, but don't look for them to do so, says Tim Downing, a Cleveland lawyer who has handled gay and lesbian custody cases. "This is a 10- to 20-year fight that's coming down," he says. "It's not going to happen in Ohio anytime soon."

Patrick Shepherd, president of the Cleveland Stonewall Democrats, a gay political group, agrees. "It's such a hopeless cause. There isn't any realistic possibility that anything will be passed in this session. Hell, we had 11 Democrats vote for the Defense of Marriage Act."

That bill, which would have forbidden extending marital benefits to same-sex couples, passed the House but died in the Senate last year. The bill's sponsor, Representative Bill Seitz, a Cincinnati Republican, says he's looking for a like-minded senator to reintroduce it next session.

Seitz says the act would have no impact on gay and lesbian co-adoption or second-parent adoption, and was meant simply to safeguard the benefits of marriage. "If you want to change the specific statutory benefits of marriage, the answer of course is to change those specific statutes, and on that question I really express no opinion," Seitz says.

But Senator Dan Brady, a Cleveland Democrat, says Seitz's explanation is a Republican smokescreen. "They've taken a lot of these half-measures that sound harmless to most people," he says. "'Defense of Marriage' sounds somehow gallant, doesn't it? But that's not what it is. It's not defense of marriage. It's simply more homophobic legislation wrapped up with some kind of cliché that they think they can sell."

Brady says he plans to introduce a bill next session to advance civil rights for gays and lesbians, but expects the gesture will be largely symbolic. "We know that there is a bloc of cavemen in the legislature that would practically burn the place down to block gay rights," he says.

Senator Eric Fingerhut (D-Shaker Heights) also has dim hopes: "There's a reflexive opposition to anything that might in any way be implying that the relationship between people of the same sex has any kind of legal validity."

Several national organizations came forward last year to prod lawmakers to address gay parenting. The American Academy of Pediatrics advocated second-parent adoption by same-sex parents, saying children "deserve two legally recognized parents." The American Law Institute, an influential group of lawyers and judges, proposed changing divorce and child-custody laws to extend rights to gay couples and unmarried parents.

The state's adoption agencies aren't waiting for the legislature. They've quietly been reaching out to gay and lesbian couples to help deal with the state's estimated 3,600 parentless children. A Child's Waiting Adoption Program, based in Akron, presented an adoption forum for Stonewall Columbus last year. Bellefaire Jewish Children's Bureau is training staff to deal with issues unique to gay and lesbian adoptive parents.

"We have so many boys and girls who need homes," says Bellefaire's Beth Brindo. "And the point of our recruitment was there was this large, untapped pool of men and women who would make great parents."

Stephen Hudkins was old enough to be a grandparent when he decided to raise a child with his much younger partner, Steven, but he had always loved kids. He had a biological son and an adopted daughter from a previous marriage, and he was active in 4-H and other youth programs.

After five years together, Hudkins and Steven began looking into adoption. At the time, they lived in New York, where co-parent adoption is legal. They had gotten as far as a preliminary home study when outside circumstances intervened.

Hudkins, an assistant professor, was offered a better-paying job at Ohio State. The job put him closer to his family in Indiana, so in 1991, he and Steven moved to Kent.

Soon after, they realized Ohio was much less friendly to gay adoption than New York was. For one thing, co-parent adoption wasn't an option. They also found adoption agencies reluctant to deal with them. "This is a wonderful idea, and we'd like to do it, but . . .," Hudkins was told.

The couple soldiered on, and eventually found an agency willing to help. By 1992, it located a three-year-old named Chris. Hudkins and Steven adopted, becoming one of the first openly gay couples to do so in Ohio. Out magazine wrote about their case.

"When you're a parent, it doesn't matter what your orientation is," Hudkins says. "It's about your heart."

The couple knew at the time that Chris had a just-born baby sister. Fourteen months later, Hudkins and Steven adopted the little girl, Aylesha. They chose Steven as the legal parent for both children.

At the time, the decision seemed a no-brainer: Steven was 25 years younger than Hudkins, and he was black, like Chris and Aylesha. Hudkins is white.

But the choice would have unforeseen consequences. In 1998, Steven began dating another man. He and Hudkins continued living together for a year, for the sake of the children, but in 1999, Steven moved in with his new partner, taking the children with him. Hudkins tried to stay on good terms, but increasingly was denied visitation.

Steven also had a fiery temper, Hudkins says. While they lived together, Hudkins shielded the children. "If you hit those kids, I personally will turn you in," Hudkins told him. But on Christmas 1999, Steven's temper exploded when the kids came to Hudkins's house to receive presents. Steven began taking things he claimed were his, Hudkins says. When Hudkins tried to stop him, Steven punched him.

Hudkins called the police. They asked if he wanted to press charges, but he declined. Afterward, Steven refused to let him see their children again, Hudkins says. "I never even got to say goodbye to them."

Soon after, Hudkins says, he got a phone call from Chris -- one that remains burned into his memory. "Daddy, I have to tell you what he did to us," Chris said.

Hudkins asked if Steven was at the house and thought Chris said yes. He told Chris he'd better hang up the phone, because if his father caught him talking, he would be punished.

Early the next morning, Chris called back. "He hit us," he said. "He beat us."

"Don't say another word to me," Hudkins said. He told Chris he would pick him up immediately and take him to the principal's office at school, so there would be a witness.

Chris told his story to the principal, who called the police. Steven was placed in an anger-management program. In the meantime, the children were allowed to stay with Hudkins.

Ten months later, as Steven neared the end of his program, the children were returned to his home under court supervision, which meant he could not take them out of state without permission, Hudkins says. But Steven abruptly took Chris and Aylesha to South Carolina, where his mother lives.

The court tracked down the kids and demanded they be brought back to Ohio. Steven sent the children back with his new boyfriend, who dumped them at the Department of Job and Family Services, clutching trash bags filled with their clothes, Hudkins says. (Scene was unable to reach Steven for comment, and agency case files are not public records.)

Steven made almost no effort to keep in touch with the children, Hudkins says. After 16 months, he lost his parental rights.

During that time, Hudkins would have seemed the logical choice to take care of the kids. After all, the children lived with him for almost a decade without complaint. Chris and Aylesha considered Hudkins their father.

But the law did not. "Even though I had been the primary parent, I had absolutely no legal rights. None," Hudkins says. The children were placed in foster care.

Meanwhile, Hudkins began training to be an adoptive parent for children he had always considered his own. "They said, 'In order for you to adopt the kids, you have to go through the process the same as everybody else.'"

For almost a year and a half, Hudkins could visit his children only a couple of times a week. Chris and Aylesha were allowed to come to his home twice a year: on Christmas and New Year's Day.

"The children always knew, I think, that they were going to come home," Hudkins says. "And that was the thing that sustained them. I continually had to reinforce that: that I would never leave them, never walk away from them, and that I would fight to my dying day to make sure they were home."

Last spring, Hudkins finished his adoption classes. His children were finally allowed to come home in May. On January 8, the adoption was finalized, and Hudkins was recognized as the children's legal parent.

Hudkins doesn't blame the Department of Job and Family Services. "They had to do what they had to do," he says. "At times it was frustrating, maddening, but I understand." But his frustration shows when he talks about Ohio law.

"This is what happens in Ohio, and this is how you can lose your kids, because of the damn law," Hudkins says.

The dynamic between Hudkins and his children seems no different from that in any other family. "Dad, where'd you put my armbands and stuff?" Aylesha hollers from another room.

"They should be on your dresser, honey," Hudkins responds.

Outside, Chris plays basketball with a trio of neighborhood kids. At just 13 years old, he towers over his father, and he's already being scouted by college basketball coaches. "Watch this," Hudkins says with a grin, seconds before Chris swishes a jumper.

"I love my kids," Hudkins says. "The greatest reward I get out of life is being a parent, being a father. When this is all said and done, and I'm going to my grave, I don't want to be known as gay. I want to be known as a great father.

"My kids don't know me as Gay Dad. They know me as Dad."

Scroll to read more Cleveland News articles


Join Cleveland Scene Newsletters

Subscribe now to get the latest news delivered right to your inbox.