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Bottoms Up:

A Critical Review of Termination of Parental Rights

Focusing on the Lesbian Mother


Michael Wade Jackson1

SMU Dedman School of Law

Graduating 3L

May 3, 2006

Michael Wade Jackson is a candidate for Juris Doctor (JD) at SMU Dedman School of Law. He has a
Bachelor of Science (BS) in Biochemistry & Cell Biology from the University of California, San Diego and
has attended the University of Bristol (Bristol, England) with a focus on British Criminal and Public Law.
Mr. Jackson is a member of AIPLA, ABA, TCDLA, NCDLA, NOW, NAACP, & Human Rights
Campaign. Mr. Jackson desires to pursue the intersection of Law and Society with a focus on fringe groups
and under-represented individuals as well as the dynamics of race and sexuality.
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Introduction: Mary’s Story

The impetus for this article is the story of Mary 2 . Mary is a twenty six year old mother of

one who lives currently with her parents in Arlington, Texas. Mary has been pregnant

twice in her life. The first ended by a non-consensual abortion at fourteen and the second

leading to the birth of her five year old daughter, Stephanie 3 , at the age of twenty one.

Mary desires to leave home and begin a life of her own with her daughter. This does not

seem to be an unreasonable aspiration for a twenty six year old mother. However, the

issue that preys on Mary’s mind is that her mother will seek to obtain custody of

Stephanie and terminate her parental rights and access to her daughter. Mary therefore

continues to live in a household where she is ridiculed for her sexual preference and the

days are approaching when Stephanie will begin to ask about her father and her mother’s

girlfriend Rian 4 .

What questions does the story of Mary raise and why should it be the subject of a

critical analysis of Family law as it applies to the Lesbian Mother 5 ? The Lesbian Mother

is in an awkward position within the jurisprudence of United States and as well of the

Writer’s Note: Names have been changed to protect the identity of the individual involved. It seems
inappropriate to be concerned with anonymity but it is a harsh reality, as this paper will address, that being
an out lesbian mother may and sometimes is sufficient grounds to terminate parental rights. Mary is a real
person with a real 5 year old daughter that was a part of my life during most of 2005.
Writer’s Note: Stephanie is the product of a very common story within the lesbian community that I have
been exposed to over the past 15 months in the Dallas/Fort Worth Lesbian Culture. Mary tells the story of
Stephanie’s conception as a night at which she was mad at her then girlfriend and proceeded to sleep with a
man. She does state that she used condom, however that proved to be ineffective.
Writer’s Note: The relationship with Rian as of writing of this paper has been official for approximately 5
months not including the phase in which Mary and Rian met which was an additional 2 ½ months. This
relationship is not novel within the lesbian community however it does appear that Mary and Rian are very
serious about their relationship. Rian baby-sits for Mary and as well Rian is in contact with Stephanie for
lengthy periods of time. For insight into this relationship and the author see
Writer’s Note: There is debate within me about the appropriate term for the class which I suggest should
be recognized within Queer Theory. I state “lesbian mother” however does this encapsulate non-biological
mothers, where as the use of the term “biological lesbian mother” seems to me to be overkill on a concept
that with reference to a “lesbian mother” it would be assumed that the child is biological offspring.

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sister nation of Canada 6 . This position is one in which the sexual identity of the lesbian

mother is repressed or closeted in order to prevent the termination of parental rights of

the mother by either the biological father or a third party that wishes to have sole

custody 7 . But what happens when the Lesbian Mother is OUT does not want to a live a

life in hiding and does not want to keep her life-style a secret from her child and the

world 8 ? It is this intersection between what used to remain a closeted existence and the

move to freely express one’s sexuality within society and the law with regard to the

termination of parental rights that is the focus of this paper.

The most discussed case on point in this arena is Bottoms v. Bottoms 9 which will

be reviewed within this paper. Furthermore, being as the story of Mary is based in Texas

it is imperative to review the Texas Statutes 10 surrounding the grounds for the

termination of parental rights and the manner in which the petition would be plead.

Finally it is important at the outset to state what this paper will discuss and what it will

not. This paper is focused primarily on the desire of a third party to gain custody of a

Writer’s Note: The relevant jurisprudence and anecdotal evidence of the struggle surrounding custody of
children of Lesbian Mothers is present in the United States, however Canada provides significant additional
resources because the struggle for the recognition and demarginalization of the Lesbian Mother pre-dates
the United States by 10 years.
See Sibyl Frei, Protecting Our Lesbian Family in Lesbian Parenting: Living with Pride & Prejudice 154,
156 (Katherine Arnup ed., 1997) (1995). Discussing the need to stay closeted in her previous community
to avoid the biological father from seeking custody of her child while she was living in an open lesbian
relationship in another part of Canada. See Also: Karen Andrews, Ancient Affections: Gays, Lesbians &
Family Status in Lesbian Parenting: Living with Pride & Prejudice 358, 368 (Katherine Arnup, ed., 1997)
(1995). Stating that “Generally speaking lesbians and gay men do not exist.” and “Few lesbians and gay
men live lives free of hiding.”
Writer’s Note: Mary lives a very out life-style. However, I do not agree with the term life-style to define
one’s sexual identity it is a current the most applied terminology. Examples of Mary’s desire to present
herself as a Lesbian Mother is found in her identification on as a lesbian, affiliation with
Dallas Area Lesbian Groups, and attendance at Chick Happy Hour ( once monthly event which allows for
women who like women to meet and mingle and talk about issues in the community while enjoying an
evening at a Dallas area bar). Mary is also OUT to her family and has faced ridicule from her mother as
well as her sisters for this desire to be upfront and proud of her sexual preference.
See Bottoms v. Bottoms 444 S.E. 2d 276 (Va. Ct. App. 1994) rev’d 457 S.E.2d 102 (Va. 1995).
See Phoebe Knauer Et al. Grounds for Termination of Parental Rights in State Bar Section Report
Family Law (John J. Sampson, ed. Vol 2002-2 Fall, 2002). Discussing the Statues in Texas and a more
practical approach to the analysis and pleadings involved in a termination of parental rights case.

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child from the Lesbian Mother while mentioning the difference between the termination

of parental rights between biological parents and third parties. This paper will not

discuss the lack of recognition of individuals such a Rian, who under the current trend in

US jurisprudence and public policy 11 does not have the ability to be identified as the

parent of Stephanie, also known as the non-biological lesbian mother. This paper will

discuss the need to recognize the Lesbian Mother as an identifiable category of its own

right within Queer Theory 12 similar to the position advanced by Kimberle Crenshaw in

her work on the Black Female 13 . Finally one may ask themselves what is the importance

of the recognition or discussion of the Lesbian Mother, there can not be that many. This

however is not reality. “Widely cited figures suggest that ten percent of women are

lesbians and the between twenty and thirty percent of lesbians are mothers. 14 ” While this

information is dated I would suggest that this number is not on the decline as the

acceptability of being OUT the number of women that identify as a lesbian is on the

rise 15 . Similarly, “Some lesbians have children from a previous marriage or partner, or as

part of a lesbian relationship. Today, more and more lesbians are opting to get artificially

inseminated and raise a family. 16 ”

Writer’s Note: The majority of US states do not recognize same sex adoption. Specifically Florida and
New Hampshire prohibit the adoption of a child by same sex couples and/or homosexual individuals. See
Florida Stat. § 63.042 (3) and N.H. Rev. Stat. Ann. § 170-B:4. There is also a significant resistance within
the jurisprudence to recognize the rights of a non-biological same sex partner, especially when the child
was the product of a heterosexual sexual encounter.
Queer Theory is a subdivision of Critical Theory and Critical Studies
See Kimberle Crenshaw, Demarginalizing the Intersection of Race & Sex: A Black Feminist Critique of
Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics 1989 University of Chicago Legal
Forum 139-67 (1989). Reprinted in The Politics of Law: A Progressive Critique 195-217 (2nd ed., edited
by David Kairys, New York: Pantheon, 1990).
Katherine Arnup, Introduction in Lesbian Parenting: Living with Pride and Prejudice vii, xii (Katherine
Arnup, ed. 1997) Citing Ellen Herman, The Romance of Lesbian Motherhood in Sojourner: The Women’s
Forum 12, (March 1988). Other estimates range as high as six to ten million lesbian mothers.
See Associated Press, More Women Experimenting with Bisexuality, available at accessed on 3/21/2005.
Wendy Caster, The Lesbian Sex Book: A guide for women who love women 33 (Rev. by Rachel Kramer
Bussel 2003).

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Case Law & Legal Test: Bottoms v. Bottoms & Texas Family Law

Bottoms v. Bottoms 17

The crux of the Bottoms Case involves the desire of Tyler Bottoms maternal

grandmother to terminate the rights of his biological mother who was an admitted

lesbian. The case was appealed all the way to the Supreme Court of Virginia which

reversed the holding of the appellate court which returned custody of Tyler Bottoms to

his mother Sharon Lynne Bottoms.

Trial Court

This case involved the relationships of one Sharon Lynne Bottoms. Ms. Bottoms who

has been in relationships with both men and women finds herself faced with the loss of

custody of her son Tyler Doustou. The trial court held that there was “clear and

convincing” evidence to support neglect and/or abuse by Sharon Bottoms (Mother) and

that custody should be awarded to Pamela Bottoms (Grandmother), however the trial

court supported its award of custody on three factors. Predominately the trial court

discussed the homosexual lifestyle of Sharon Bottoms and Ms. April Wade. The trial

court went so far as to state:

I will tell you first that the mother’s conduct is illegal. It is a Class 6 felony in the
Commonwealth of Virginia. I will tell you that it is the opinion of this Court that
her conduct is immoral. And it is the opinion of this court that the conduct of
Sharon Bottoms renders her an unfit parent 18 .

The trial court was provided with the lengthy relationship history of Ms. Bottoms and the

current relationship with a Ms. April Wade the live-in lesbian lover of Ms. Bottoms. The

trial court based its determination of custody as well on the desire to prevent Tyler from

facing the “social condemnation” that was inevitable in growing up in such a relationship
See Bottoms v. Bottoms 444 S.E. 2d 276 (Va. Ct. App. 1994) rev’d 457 S.E.2d 102 (Va. 1995).
See Bottoms v. Bottoms 457 S.E.2d 102 at 109 (Va. 1995). Dissenting opinion of Virginia Supreme

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and other evidence of the child’s best interests not being favored such as Tyler standing

in a corner upon return to the grandmother’s house and his cursing at an early age 19 .


On Appeal Sharon Bottoms challenged the award of custody and asserted that her life-

style was not able by itself sufficient to lead to termination of parental rights 20 .

Furthermore the Court of Appeals spent significant time addressing the difference

between a custody fight between parents and a third party. Under the approach in the

Commonwealth of Virginia the right to custody between biological parents is based on a

determination of the child’s best interests combined with the parents’ ability/quality of

care. The parents are therefore on equal footing in the dispute 21 . However, when the

dispute is between the biological parent and a third party there is a rebuttable

presumption in place which holds that the bond between biological parent and child is not

to be upset unless there is clear and convincing evidence of neglect and/or abuse 22 . The

appeals court held that the trial court improperly terminated the rights of Sharon Bottoms

and remanded for the trial court to restore custody to Sharon Bottoms.

Virginia Supreme Court

The Virginia Supreme Court took the case on appeal by the grandmother and re-instated

the initial custody award by the trial court. The Court held that the Appeals Court did not

give appropriate deference to the fact finding of the trial court and furthermore there was

See 109.
See Doe v. Doe 284 S.E.2d 799 at 806 (Va. 1981). Holding that a lesbian mother is not per se an unfit
See Bottoms 444 S.E.2d 276 at 280 (Va. Ct. App. 1994) Citing Wilkerson v. Wilkerson 200 S.E.2d 581,
583 ( Va. 1973) Holding for the proposition that biological parents are on equal footing in a custody dispute
without a presumption in favor of the biological mother.
See Id. at 281.

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clear and convincing evidence of the unfitness of Sharon Bottoms as well as the

recommendation of the guardian ad-litem of Tyler that he should be placed in the custody

of his grandmother 23 . The opinion is however plagued with a return to references

concerning the life-style and behavior of Sharon Bottoms and her rather low level of

interaction with her son 24 .


The sterile reprisal of the outcome in the respective forums does not include the repeated

references to the sexual preference of Sharon Bottoms, nor to the condemnation that

seems to be evident in the proceedings. The Supreme Court of Virginia goes to great

lengths to justify the opinion on other grounds than the sexual preference of Sharon

Bottoms but at the same time it states at the heart of the opinion that

“Conduct inherent in lesbianism is punishable as a Class 6 felony in the

Commonwealth … thus, that conduct is another important factor in determining
custody.” ….”And we shall not overlook the mother’s relationship with Wade,
and the environment in which the child would be raised if custody is awarded to
the mother. 25 ”

Therefore, this return to the sexual preference of the Lesbian Mother only furthers the

need to address this issue within the US legal system. Pamela Bottoms (grandmother)

had live in boyfriends while Sharon was growing up and Sharon is the baby of one such

live in boyfriend. It seems that the Virginia Supreme Court may have a similar distaste

when it comes to the effects of adolescence and growth within a homosexual relationship.

See Bottoms 457 S.E.2d 102 at 108 (Va. 1995).
Writer’s Note: Sharon Bottoms is no angel – she did leave Tyler with his grandmother on many
occasions and spent relatively 30% of her time with her some with the rest of the time 70% being spent in
the care of the grandmother. Sharon also does not have a high school education and is unemployed during
the pendency of the case. April Wade, Ms. Bottoms lesbian lover, is employed sporadically and she also
does not have a high school education. April Wade is however the breadwinner of the group. The
grandmother is also no model citizen. Sharon Bottoms is the product of a live in boyfriend of Pamela
Bottoms and this boyfriend was an absent father after her birth. This family definitely appears to live at the
bottom of the socio-economic scale surviving on the kindness of others and living from paycheck to
See Bottoms 457 S.E. 2d 102 at 108 (Va. 1995).

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Texas Family Law Review: Application to Mary

Texas Family law

The Texas Family Law concerning the termination of parental rights closely mirrors the

standards applied in Bottoms however Texas the scheme is a little different 26 . In Texas,

termination of parental rights requires clear and convincing evidence (1) of a statutory

termination ground, and (2) that termination is in the best interest of the child 27 .

Furthermore the best interests of the child are determined by the Holley test which looks

at many factors to determine if termination of rights of biological parent is in the best

interest of the child 28 . However, the best interest analysis is only one half of the

determination to be made under statute. The next part concerns the presence of statutory

termination grounds. The most likely statutory termination ground when it comes to

Lesbian Mothers would be endangerment 29 . Endangerment is defined by the Texas

Family Code as where the parent either (1) knowingly placed or knowingly allows the

child to remain in conditions or surroundings which endanger the physical or emotional

well-being of the child, OR (2) engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endangered the physical or emotional well-being

Writer’s Note: The difference between Texas and Virginia is the result of the United States Supreme
Court holding that “clear and convincing evidence” is required to terminate but that States may set
standards above this minimal level. See Santosky v. Kramer 455 U.S. 745 (1982).
See Phoebe Knauer Et al. Grounds for Termination of Parental Rights in State Bar Section Report
Family Law 6 (John J. Sampson, ed. Vol 2002-2 Fall, 2002). Citing Tex. Fam. Code § 161.001
See Id. at 7 Citing Holley v. Adams 544 S.W.2d 367 (Tex. 1976) The Holley Test includes in assessing
the best interests of the child – the desires of the child – the emotional and physical needs of the child now
and in the future – the emotional and physical danger to the child now and in the future – the stability of the
home – and others.
See Id. at 11 (Discussing Endangerment – which is § 161.001(1)(D) or § 161.001(1)(E) of the Tex. Fam.

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of the child 30 . This endangerment ground seems like the most likely candidate to be used

against a Lesbian Mother 31 .

Application to Mary

Mary is not a role model when it comes to being a parent and her lifestyle outside her

sexual preference may present a problem when it comes to the issue of endangerment.

Mary is currently unemployed. Mary has been an exotic dancer, and was previously a

bartender at a strip club. Mary leaves her daughter Stephanie primarily in the care of her

mother as well as utilizes day care programs offered by the State. Mary however unlike

another acquaintance of mine, Lauren, does not allow her daughter to be around an

environment in which drugs are used. This is not an absolute rule as Stephanie has been

around individuals that do use marijuana quite frequently. However, Mary does strive to

keep Stephanie in an environment conducive to her own personal growth.

So how would Mary’s parents seek to have custody of her daughter? Most likely

Mary’s Mother would approach the courts claiming that she spends a majority of the time

with Stephanie and that it is in the best interest of the child that she remain with her

grandmother. Furthermore, Mary’s Mother could assert that Mary endangers Stephanie

by exposing her to the personal relations between Mary and Rian. Mary and Rian are

affectionate in front of Stephanie but do not bring act inappropriately in front of

Stephanie. However, what about the emotional harm that may be presented by a

See Id.
Writer’s Note: The determination that endangerment under Texas law would be the most likely ground
for termination of parental rights is based on the lifestyle of Mary and other individuals with whom the
writer is familiar. Mary is very careful to not expose her daughter Stephanie to deleterious influences
however she has no steady job history, has a high school diploma with some college completed, and has
previously worked as a bar tender and an exotic dancer. However, this can be contrasted with another
example of a mother named Lauren who exposes her daughter to an environment were the use of marijuana
is present, where the needs of the child are not always addressed such as a shortage of diapers or food, and
where the parent leaves the child unattended with friends that also engage in dangerous conduct. Lauren
may or may not expose her daughter, who is 10 months old, to lesbian sexual acts.

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homosexual relationship. This most likely will be asserted by Mary’s mother in an

attempt to gain custody. If the State of Texas follows the trend in Virginia more likely

that not the probable outcome of the custody dispute will favor the termination of the

parental rights of Mary 32 . Is this appropriate? Why should the sexual preference of the

Lesbian Mother be a factor?

Finally the question is raised why does Mary herself not seek to use the legal

system to pre-empt actions by her mother in the interest of her daughter. Well with

reference to a handout on protecting families in same-sex relationships it is mentioned

that resorting to the legal system should be a last resort 33 . Also the financial cost of

litigating this complex issue is overwhelming to a twenty six year old mother and outside

her financial means. So in most cases, especially like Mary, the Lesbian Mother is forced

to remain in the parental home in order to maintain custody of her child.

Lesbian Mother:

Is the Lesbian Mother a sufficiently identifiable class of individual that requires

recognition within critical theory to allow for the protection of identifiable rights of the

mother and child? My answer to this question is a resounding YES! Furthermore there is

extensive discourse on the subject of childhood and the effects of same sex relationships

on the development of children 34 , 35 . The most interesting critique to be found is that

Writer’s Note: There are many websites and resources dedicated to homosexual parents. One site that is
particularly helpful is (Children of Lesbians and Gays Everywhere) and this site
provides a handbook on protecting the right of the parents and the children located at . There are also other organizations such as the Family Pride
Coalition located at
See Protecting Families: Standards for child custody in same-sex relationships available at
Deborah M. Henson, Lesbian Feminist Critique of Susan Okin’s Justice, Gender, and the Family:
Lesbian Families with Children as a Non-Heterosexist model for the development of morality and Justice, 4
Hastings Women’s L.J. 249 at 251 (1993). ( This article challenges the requirement that the homosexual
couple or parents be compared with the heterosexual dynamic)

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parenting in same sex couples to date is compared and contrasted with the heterosexual

model as the ideal 36 . This is disconcerting and calls into questions the appropriateness of

applying a heterosexual dynamic to modern parenting. It was not that long ago that

single parents were considered unfit. Today this would seem absurd. What about the

legal inability of Lesbian Mother’s to marry and move out of the identified group of

single mothers. Remember, that marriage alone to a same-sex partner can still not keep a

third party or the biological father from challenging custody.

The biggest argument against the Lesbian Mother is a more generalized argument

against the supposed harm that a child may endure in a homosexual family. This has

been seen in both the Supreme Court opinion in Bottoms and as well in the mainstream

analysis of gay adoption and gay parenting. However, a recent study has shown that

there are differences in the outcomes of children in gay and lesbian families and that even

with these differences that the children in gay and lesbian families have no greater a

propensity to be homosexual than children growing up in heterosexual families 37 . So with

this new research combined with the social stigma associated with identification as a

homosexual and the historical need to keep one’s self closeted to maintain custody of

biological children it would seem appropriate that the LESBIAN MOTHER be identified

as a group within critical theory.

David L. Chambers, Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the
Twentieth Century, 33 Fam. L.Q. 523 (1999).
Ruthann Robson, Our Children: Kids of Queer Parents & Kids who are Queer: Looking at Sexual
Minority rights from a different perspective, 64 Alb. L. Rev. 915 (2001). This article considers the benefit
of queer children being raised in a home that is accepting of there choice and also looks at adoption as well
as biological children.
See Erin O’Briant, Do Kids raised by lesbians turn out different, The Family Tree: a publication by the
Family Pride Coalition, Spring 2001 available at{2A2C5E24-92CC-

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Mary’s story is one which is not easy to accept. The idea that a LESBIAN

MOTHER, a biological mother, can be stripped of her rights to her child simply for her

sexual preference seems to call into question the state of family law within the United

States. Furthermore, it appears that the Lesbian Mother is a group which should

rightfully have a place within critical theory independent of the label of Lesbian or

Homosexual. The Bottoms case presented the lingering bias towards a homosexual

lifestyle present within the court systems of Virginia. The Texas law seems to have a

similar ability to take away custody of a child from the Lesbian Mother because she is

outwardly affectionate to her lover. But does this not seem absurd when homosexuality

should be tolerated if not accepted in society. A heterosexual couple can openly kiss in

front of their children and more likely than not it is encouraged. This is an absurd result

and that law needs to catch up with the times. Mary’s voice is not heard – this is because

her voice is typically silenced by fear, monetary requirements of litigation, and the public

condemnation that her sexual preference and life-style present in this homophobic

culture. The evidence is present to support that children that grow up in homosexual

household have no greater propensity for homosexuality than a heterosexual household

leading one to ask what makes a Lesbian Mother unqualified to raise her child than the

mere fact that she is a Lesbian. The answer to this question seems obvious – that society

still attaches a stigma to homosexuality and even though it is not a per se disqualification

of fitness to be a parent under the law, but in practice is rips children from their biological

parents a most improper outcome.