Revisiting the April Divilbiss Case: Alternative lifestyles and encounters with the state

Orig­i­nal­ly pub­lished on Live­Jour­nal on 7 April 2005.

A nice lady wrote to me recent­ly, pro­voked by my post about our DFCS expe­ri­ence. She wrote about it on her blog, too.

The Divil­biss case was a top­ic of con­stant dis­cus­sion in forums relat­ed to polyamory back in 1999. Lov­ing More mag­a­zine and oth­ers raised mon­ey to pay the fam­i­ly’s legal fees. The assump­tion was that the Divil­biss-Lit­trell home was the best place for lit­tle Alana.

Most news cov­er­age and 99.9% of the talk focused on polyamory. The judge said that the Divil­biss’ lifestyle was “depraved” and that he would not con­sid­er return­ing Alana to their home unless one of April’s hus­bands moved out of the home.

The pater­nal grand­moth­er was paint­ed as a har­ri­dan who could­n’t have a child of her own and cov­et­ed Alana.

The prob­lem I had with it was that nobody was real­ly talk­ing about the fam­i­ly. What were they like? Were they real­ly tak­ing good care of the child? I sus­pect­ed that there were oth­er issues involved.

The social work­ers who inves­ti­gat­ed the fam­i­ly sup­pos­ed­ly stat­ed that the fam­i­ly’s polyamorous lifestyle was not detri­men­tal to the child.

I nev­er heard a thing say­ing that the social work­ers stat­ed that the fam­i­ly was pro­vid­ing a good home for the child.

I don’t know how many of you have read Divil­biss’ own state­ment about end­ing the case, but you should.

Some have ques­tioned it, say­ing that it did­n’t ring true com­pared to ear­li­er mes­sages from Divil­biss. Her lawyer, as I recall, ver­i­fied that it was from her.

Per­haps wis­dom is a grace that comes with age, along with the pow­er of obser­va­tion. For three years, I stood in stub­born denial that I could pro­vide the best life for my child com­pared to the life that was being offered by oth­ers. My daughter’s pater­nal grand­moth­er made every attempt pos­si­ble to shed some light on the facts that proved me wrong. I mis­took her efforts to be mali­cious, oppres­sive, and manip­u­la­tive. Even as I sat in a dark apart­ment with no elec­tric­i­ty, in sub-zero tem­per­a­tures heat­ing stolen baby for­mu­la over a can­dle flame, I thought that I could pro­vide bet­ter for my daugh­ter than she could. After three years of this denial, my child’s grand­moth­er used the only sure thing she had to help real­i­ty crash my lit­tle tea par­ty: The fact that alter­na­tive lifestyles are still frowned upon in courtrooms.

No util­i­ties. Stolen baby for­mu­la. No health care, accord­ing to oth­er parts of the state­ment. What Divil­biss described can­not be con­sid­ered a good envi­ron­ment for a child.

Why could­n’t three adults man­age to keep the util­i­ties on? Noth­ing was ever said about there being any dis­abil­i­ties that made the adults unable to work.

My point here is that the fam­i­ly was­n’t a good can­di­date for a test case. They were not pro­vid­ing a good, sta­ble home for their child by any first world coun­try’s com­mu­ni­ty standards.

The case should not be used as a yard­stick in gen­er­al, or a rea­son for poly fam­i­lies to be closeted.

What is rea­son­able for poly fam­i­lies, or pagan/queer/kinky/anything out­side the main­stream fam­i­lies is to have stain­less steel lives. We need to do every­thing we can to make sure that we are blame­less in every respect, mod­el mem­bers of our communities.

That means sta­bil­i­ty, respectabil­i­ty, and involve­ment. A few points.

  • We must main­tain our homes so that we can open our doors with­out hes­i­ta­tion to any­one, includ­ing child pro­tec­tive ser­vices, at any moment with absolute­ly no qualms.
  • We need to live in kid-friend­ly places in decent school dis­tricts. We need to be on good terms with our neigh­bors and land­lords, and we need to estab­lish some sta­bil­i­ty. Mov­ing every year, or even more fre­quent­ly, does­n’t look good.
  • We need to abide by our state’s home­school­ing reg­u­la­tions if we homeschool.
  • We need to be involved in our chil­dren’s schools as vol­un­teers, PTA mem­bers, room mothers/fathers, etc. We need to stay in touch with our chil­dren’s teach­ers, attend­ing every par­ent con­fer­ence and the like. We need to stay abreast of what our kids are doing every school day and com­mu­ni­cate with their teach­ers imme­di­ate­ly regard­ing any concerns.
  • We need to send our kids to school in well-fit­ting, pre­sentable (clean, pressed, not torn/stained) cloth­ing, well-fed and rest­ed, every sin­gle day.
  • We need to pro­vide health care for our chil­dren, whether we have it for our­selves or not.
  • We need to arrange for good child­care, with no latchkey children.
  • Active involve­ment in a church always looks good. The Uni­tar­i­an Uni­ver­sal­ist Asso­ci­a­tion is fair­ly respectable, Uni­ty Church a lit­tle less so (in the South, at least).
  • Scout­ing, 4H, Camp­fire — any of those groups are good for you and your kids to get involved with.
  • We can­not have revolv­ing doors in our, or even more so our chil­dren’s, lives. That means not hav­ing SOs or room­mates com­ing in and out of their lives fre­quent­ly. If your kids are get­ting to know a new per­son every few months, it looks very, very bad.
  • It should go with­out say­ing that our chil­dren should­n’t be exposed to our sex lives in any explic­it way. Unfor­tu­nate­ly, it has to be said. If you’re into kink, your kids should not encounter any kind of gear or lit­er­a­ture relat­ed to that.
  • Kids should not, in fact, ever encounter any sex­u­al­ly explic­it mate­r­i­al in their homes. The only excep­tion is age-appro­pri­ate edu­ca­tion­al mate­ri­als. If you have smut around, put it away in a place that isn’t acces­si­ble to your chil­dren and isn’t seen by vis­i­tors. I am sex-pos­i­tive, but I know don’t want to debate the lit­er­ary mer­its of erot­i­ca with a judge in fam­i­ly court someday.
  • Don’t do ille­gal drugs. I don’t give a fly­in’ flip about the eth­i­cal­i­ty of the cur­rent laws. Just don’t do them. Don’t allow any­one else to do them around your kids or on your prop­er­ty. Nev­er allow any­one to have them on your prop­er­ty. It’s stu­pid. If you want to keep your kids, stay clean.
  • Don’t drink alco­hol to excess, espe­cial­ly around your kids. Don’t allow oth­ers to drink heav­i­ly in your home or around your kids. Don’t social­ize with peo­ple who con­sid­er drink­ing to be a vital part of hav­ing fun. Don’t keep a lot of alco­hol in your home.

If you are wor­ried about cus­tody prob­lems because of your lifestyle, you need to go through that list and make sure you are doing those things.

Is it fair? No. Is it unrea­son­able or undoable? No. They’re all things that are good for any fam­i­ly, but if we are liv­ing alter­na­tive lifestyles we have to be extra careful.

The last thing is what has been called “fuck you mon­ey.” One impor­tant aspect of the Divil­biss case was that the grand­par­ents had mon­ey, and Divil­biss and her hus­bands didn’t.

You must be finan­cial­ly inde­pen­dent. If you are depend­ing on fam­i­ly or friends for mon­ey need­ed for basic life neces­si­ties, you are in a very bad posi­tion. You need to have a place to live in which you have a legal right to be so that you can’t be evict­ed because your par­ents/friend­s/ex-boyfriend decid­ed they don’t want you there anymore.

If you rely on hav­ing an auto­mo­bile to get to work or oth­er­wise do what you have to do, it needs to be yours and rea­son­ably reliable.

Your job should­n’t be con­tin­gent on your par­ents’ approval or some such, which is a major argu­ment against work­ing for a fam­i­ly business.

Estab­lish some sta­bil­i­ty in your work­ing life. Stick with a job rather than jump­ing around. Be the kind of employ­ee who is kept and promoted–get to work on time, don’t miss any time if you can pos­si­bly avoid it, fol­low the rules, be pro­duc­tive, be proac­tive, etc. Don’t push your lifestyle in any­one’s face–it isn’t appro­pri­ate for any­one. I don’t care if oth­er peo­ple do it, that does­n’t jus­ti­fy it. I don’t think you should nec­es­sar­i­ly be clos­et­ed, but if you’re a queer/pagan/polyamorous per­son work­ing for a con­ser­v­a­tive Chris­t­ian orga­ni­za­tion, you’re prob­a­bly in the wrong place anyway.

Those are the barest basics. You need to have some sav­ings in case you lose your job. You need to be insured for all the nor­mal stuff (auto, homeowners/renters, life, dis­abil­i­ty if you can get the cov­er­age, lia­bil­i­ty if possible).

Am I speak­ing from a place of priv­i­lege? Yes, and I know it. How­ev­er, I’m also a dis­abled, fat, bisex­u­al woman who was a sin­gle par­ent and who knows what it is to not have access to health­care and to live on very lit­tle mon­ey. Even when I could­n’t work I made sure that my daugh­ter had every­thing she needed.

Every hor­ror sto­ry I’ve ever encoun­tered about alter­na­tive lifestyle folks los­ing their chil­dren to the state involves the par­ents not doing one or more of these things. The fam­i­lies involved have usu­al­ly been finan­cial­ly depen­dent on peo­ple who don’t approve of their lifestyles. They haven’t pro­vid­ed sta­ble, clean homes for their kids. And so on, and so on.

Those whose encoun­ters with the state were more or less pain­less, includ­ing us, were fol­low­ing these guidelines.

Don’t both­er talk­ing to me about the fair­ness of any of this. If you want to make con­struc­tive sug­ges­tions, I wel­come them.

3 Replies to “Revisiting the April Divilbiss Case: Alternative lifestyles and encounters with the state”

  1. The biggest prob­lem I have with this, is it is incred­i­bly white-centric.

    Accord­ing to this check­list, dis­abled and POC should­n’t even have kids, much less have kids and be pagan /poly/queer. Imag­ine what it’s like to be a pagan, QTWOC.….and poly.

    Our poly­cule is fre­quent­ly our only reli­able safe­ty net. Under the cur­rent admin­is­tra­tion, sav­ings have evap­o­rat­ed, food banks, food stamps, even get­ting med­ica­tions that are on the for­mu­la­ry for insur­ance is becom­ing a three ring cir­cus event. I believe we should all remem­ber Wan­da Sykes admon­ish­ment: “White peo­ple are watch­ing you”

    I don’t believe we should fall into the trap of per­pet­u­at­ing a host of isms (transan­tag­o­nism, ableism, clas­sism, racism, etc) with­in our poly com­mu­ni­ties. I’m sure that was­n’t the intent, and it is still how this reads.

  2. I hon­est­ly don’t know what you find objec­tion­able in the arti­cle — it would be help­ful if you were more spe­cif­ic (although obvi­ous­ly you aren’t oblig­at­ed to give more detail). I cer­tain­ly don’t want to be white-cen­tric or transantagonistic.

    I wrote this piece as a queer, dis­abled, pagan, poly par­ent liv­ing deep in the South. My part­ners and I were prac­tic­ing just as I wrote — and we sur­vived sev­er­al expe­ri­ences with local Depart­ments of Fam­i­ly and Chil­dren’s Ser­vices with cus­tody total­ly unchanged. Because of that, I don’t see any­thing in that list that isn’t per­fect­ly achiev­able for POC, pagan, LGBTQ+, or dis­abled peo­ple. Hard, yes. But doable.

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