Saturday, October 11, 2008


Below I have answered some frequently asked questions about my custody case. Please feel free to ask others or follow-up questions. I can't promise to answer all, but I am glad to answer those I can. Thanks for your continued interest and support.

How did your ex learn about your blog and sexuality?

My ex has always known about my sexuality. I was out as bisexual before we met, and we each discussed our sexual history during our first dates. In fact, our first several dates were threesomes with a male friend who then shared a bed with me. We subsequently double-dated him and his girlfriend and frequently had sex together. Several of these dates were videotaped.

As our relationship deepened, my ex and I agreed to be monogamous. Still, I continued to identify openly as bisexual for personal and political reasons. My bisexuality was frequently discussed when were in couples therapy for a few years following our wedding. The therapy was focused on our sexualities, dealing primarily with my ex’s aversion to intimacy and its impact on our transition to marriage and efforts to have a child.

At the time, I was a volunteer at the Hetrick-Martin Institute, an organization devoted to supporting GLBT youth. I was also caring for my boyfriend from high school days, who was then hospitalized and succumbing to AIDS. My ex knew him well; she was fully aware that he and I had been lovers and continued to love one another deeply. Eighteen months after his death, we named our first child in his memory.

My sexuality has never been a secret to my ex.

The existence of this blog, however, was a revelation to her. My ex learned of my blog in March 2008, when it was included in a Time Out, New York feature on “secret lives.” She visited the site frequently between this discovery in March and her subsequent filing in late June. Her IP address shows that she clicked through to related blogs. Even though she knew of my bisexuality and interest in group sex, she may have been surprised to read about it in such detail. But if so, she made no mention of it to me. Instead, she contacted attorneys and filed for custody three months later, coincident with the beginning of a planned two-month sabbatical from her job. I was served with papers upon returning from a vacation with my children.

Why has a psychiatric evaluation been ordered, and what does that entail?

My ex requested that a psychiatric evaluation be undertaken for me and for each of our three children. The judge ordered that there be evaluations of both parents, but not the children. My evaluation is to focus on my involvement in BDSM and polyamory, as described in my blog. The judge is concerned as to whether this type of activity comes from some kind of pathology.

We are told that we may each expect between ten and twenty sessions. All of our past medical and mental health records may be opened for review. A final report will be prepared for the court’s consideration.

There have been no concerns raised about my mental health other than those based on my sexuality and involvement with BDSM and polyamory.

Is involvement with BDSM evidence of a psychiatric disorder?

The National Coalition for Sexual Freedom is currently engaged in the DSM Revision Project, with the goal of removing political emphases in the discussion of BDSM and sexuality in the Diagnostic and Statistical Manual of Mental Disorders (DSM). This manual is published by the American Psychiatric Association and used to establish diagnostic criteria for mental disorders. The current edition was published in 1994. The next edition is due in 2012, and a draft will be released for review in 2009.

The politics of sexuality and mental health have been contentious in the DSM’s history; so long as there is a presumption that sexuality is symptomatic of mental illness, whole populations are at risk of being diagnosed purely in terms of their sexuality. So it was that in the early 1970s, gay and lesbian activists, supported by the research of Alfred Kinsey and Evelyn Hooker, successfully sought to have homosexuality removed from the mental disorders listed by the DSM. Thanks to that generation of activists, a bisexual parent such as myself may not be at risk of losing custody due to his bisexuality being classified as pathology.

However, the current edition of the DSM continues to classify the vague "sexual disorder not otherwise specified.” It also targets paraphilias (sexual fetishes) and female hypoactive sexual desire disorder (low female sex drive). If you like to dress in rubber or would just as soon pass on sex tonight, the DSM supports classifying you as mentally ill on those grounds alone.

The DSM formerly defined epilepsy as a mental illness. If it continued to do so, and a parent is epileptic, a court would reasonably ask for a psychiatric evaluation of that parent in determining her suitability for custody.

I have written of my interest in BDSM and polyamory. Therefore, the court reasonably asks that my interests be examined for evidence of pathology. I am confident that pathology is not afoot in my case, and I welcome the proof that will come from the process of a psychiatric evaluation. Precedents are a tricky issue in custody cases, where the prevailing standard is “best interests of the child,” a standard that may be different for each child. But I hope that my success in this psychiatric evaluation helps other parents. I hope that it helps the community by making the case against a presumption of mental illness in BDSM and polyamory in the next edition of the DSM.

Why is the hourly rate for a psychiatric evaluation so expensive? I see a therapist in Manhattan, and she only charges $125 per session.

A psychiatrist undertaking a court-ordered evaluation is required to meet certain criteria. Past medical and mental health records must be reviewed, and a formal report made to the court. It may be necessary to appear before the judge. In this case, both parents must be evaluated by the same psychiatrist. Understandably, this extra work is reflected in the hourly rate.

Why the need for a legal defense fund?

These proceedings are expensive. My ex hopes to use that expense to her advantage.

My ex is from a wealthy family. Over the course of the past seven months, even in advance of these proceedings, she has used her family’s resources to wage a campaign of financial intimidation in hopes of gaining custody of our children.

When our marriage ended, I was sent to live in an apartment owned by my ex’s father. After she read the Time Out, New York article in March, her father brought pressure to force my family from the apartment. At the time, I was unaware of her discovery of my blog. Our divorce settlement stipulated joint custody of the children. This effort to remove us from our home was designed to make it impossible for me to maintain that agreement.

My ex and her father each recommended that I voluntarily surrender custody of the children and make arrangements to stay someplace else, perhaps on a friend’s couch. Instead, I found a comfortable three-bedroom apartment and moved. At no time did my ex or her family express any interest in where the children and I might live. The strategy of winning custody by making me homeless failed.

Knowing that the sudden move had left me financially vulnerable—obviously, it would, and I had written as much in my blog—my ex then filed for full custody. She chose to do so by filing an emergency order to show cause. Such orders are necessary when children are in immediate danger and the court’s quick action is necessary. At no time did my ex or her family express to me any concern about the children’s safety and welfare. Indeed, as my ex worked with her attorneys on preparing this motion, I was out-of-state with my children on vacation. During the three months my ex had known about my blog, no effort was made to deter this vacation in light of a perceived “emergency.”

I learned of the motion late one afternoon and was expected in court the following morning. My ex also chose not to file in family court in an added effort to make the process as expensive and protracted as possible. Had she filed in family court, it would not have been necessary for me to have an attorney, and a court-ordered psychiatric evaluation would have been provided by the court, were it deemed necessary. Again, my ex and her family assumed that by taking the most expensive route possible, they could take advantage of my financial disadvantage.

Only after that initial court date did I learn that the motion was based wholly and entirely on my blog. The motion alleged that I could not be a fit parent due to my sexuality and sexual activity. The motion, which is as thick as a phone book, is replete with incendiary sexual language. In fact, the motion mentioned my bisexuality four times, orgies nine times, pornography three times and sex twenty-eight times. The word “hypersexual” was used eleven times. By contrast, the phrase “best interests of the children” appeared only three times.

A subsequent addition to the motion alleged my practice of the fetish “blooding,” which was defined as the use of blood as a lubricant during intercourse. Not only had I never written of any such interest, I had never heard of a fetish for “blooding.” I’ve Googled the term and asked around. No one seems to know about it. Having apparently coined the term, my ex’s attorneys are free to define it as they wish. Clearly, the hope was to shock the judge by ascribing this invented fetish to me.

The motion was reviewed by the legal experts of the Sexual Freedom Legal Defense and Education Fund. Given the extraordinary emphasis on my sexuality, the absence of any other claims against my abilities as a parent, and the motion’s acknowledgment that I am in fact a good parent, the Sexual Freedom Legal Defense and Education Fund created a fund to support the case.

How are free speech issues involved?

The claims against me are based entirely on my writing. Long-time readers of my blog know that I write not only about sex, but also about parenting. This dual focus is reflected in the blog’s subtitle. They know that I have written repeatedly on the segregation of my two lives. They also know that this blog has documented my trying relationship with the mother of my children.

Having perused the blog over several months, my ex is fully aware that it documents her actual behavior and actions. She is therefore interested in curtailing my writing.

In any other instance, her hands would be tied. The right to free speech would be hard to contest, as my writing is in no way slanderous or false. However, in custody cases, free speech is considered alongside the best interests of the child. In a custody case, the court may order me to cease or curtail my writing.

As this has to do with custody, sexuality and the Internet, we are in largely uncharted waters. My lawyer is beginning to research the issue and has not yet found any on point precedent for this situation. My case facts seem to present a “case of first impression” with respect to First Amendment freedom of expression and prior restraint law. As a restriction on a parent’s writing would have constitutional implications, the defense of free speech in this case could have a very broad impact.

How are you holding up?

Ever optimistic, thanks. My greatest concern in keeping this blog has been that my ex would discover it and sue for full custody. Now that she has done so (and done so, alas, with entirely predicted venom), I look forward to putting aside that anxiety once and for all with the reassertion of the original joint custody agreement.

Thanks again for your continued support.

Make an ANONYMOUS, TAX-DEDUCTIBLE contribution to Jefferson’s legal defense by visiting the Sexual Freedom Defense and Education Fund at:

Sexual Freedom Legal Defense and Education Fund

Please remember to specify that your donation is earmarked for the Jefferson Legal Defense Fund. The Sexual Freedom Legal Defense and Education Fund affirms that these earmarked donations are tax deductible.

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