By Dawn Wolfe
Amy Smith thought she had finally found her perfect life. In April, she married the woman she loves in Windsor.
Close to finishing school at Wayne State University, she was looking forward to graduating, getting a job and settling down with her wife while enjoying frequent visits with her 7-year-old daughter.
Unfortunately, Amy's dream is illegal.
Amy can't sponsor her wife, Wendy Maurice, who is Canadian, to live in this country because Wendy isn't a man. Amy has run out of student loans and money just short of graduating, but she won't be allowed to go to school or work in Canada for at least another year. And Amy's ex-husband, Shane Smith, who lives in Evansville, Ill., with their daughter, is doing everything he can to restrict her contact with Amy and Wendy.
Despite several attempts, BTL could not reach Shane Smith for comment.
Amy and Wendy aren't alone in this dilemma. There are roughly 36,000 bi-national, same-sex couples in the U.S. – at least as of the 2000 census – according to Adam Francoeur, policy coordinator for Immigration Equality. Forty-six percent of those couples have children under 18 living at home. No one knows how many of these families are facing the same kinds of custody issues that Amy is experiencing.
However, all bi-national same-sex couples face U.S. immigration laws that treat them as legal strangers. If the law treated same-sex married couples equally, Amy would be able to bring Wendy to live in the U.S. and the two could struggle together to enforce Amy's visitation rights.
Instead, Amy may have to move nine hours and a border crossing away from her wife in order to earn the money she needs to fight to see her daughter.
Coming out, then divorce
It wasn't supposed to be this way. When Amy came out as a lesbian in 2003, after much soul-searching and a suicide attempt, her husband told her to go ahead and live her life as long as she didn't share the details with him. They agreed to raise their daughter together and try to provide her with as stable a life as possible. At this point, Amy was in school full-time, and she decided to stay with Shane until she finished school.
But then, Amy met Wendy online in a support group for lesbians married to men. She confessed her feelings for Wendy to Shane, who began snooping through her e-mails.
Three months before she was to graduate, Shane told Amy, "he was going to have to divorce me now, because if he waited until I was closer to being done with school then I was going to be able to fight him for (custody of their daughter)."
Amy didn't want to fight Shane. Amy wanted to work with him and allow her daughter to stay in the home she'd grown up in.
"I wanted (her) to have the most stability she could possibly have," said Amy, who knew that, if she wanted to be with Wendy, she would have to live in Canada to do so.
Eager to keep things amicable, Amy didn't hire her own lawyer. And at first, her strategy seemed to work. Shane and Amy drew up a joint-parenting agreement, and for the first few months after the June 2005 divorce they seemed to be working things out.
But then Amy took her child to Canada twice. Each time, Shane required Amy to sign a statement pledging to have their daughter back in Evansville by the agreed-on date.
The third proposed visit never happened.
Custody battle, Canadian border
When Amy arrived in Evansville in December expecting to bring her daughter back to her home with Wendy in Windsor, she was greeted with a summons instead of a hug from her daughter. Shane had succeeded in getting a judge to call an emergency hearing to decide whether Amy could bring Drew back with her. Further, Shane requested that Amy be barred from future unsupervised visits with their daughter.
He got everything he asked for during a hearing that Amy's lawyer at the time said was colored by homophobia.
"The husband was saying, 'Here's these lesbians (who) are going to influence my daughter," said James F. Baba, the attorney who represented Amy at the hearing. "If the case had been in Chicago I think it would have been a much different story."
The judge claimed that because he was unfamiliar with Canadian law, he wouldn't allow Amy to take Drew over the border.
If anti-gay sentiment did color the judge's decision, it did so against Illinois law, according to Pat Logue, senior counsel in Lambda Legal's Midwest office.
"The appellete courts of Illinois have formally held that custody decisions are supposed to be sexual-orientation neutral," Logue said.
Now, Amy is only able to see Drew at her mother's house up to two weekends a month. Visits she has to arrange around both her school schedule and her part-time job at a metro Detroit coffeehouse.
But even those visits aren't guaranteed. During the summer Shane called a second emergency hearing to get permission to keep Drew during the weekend he remarried.
Amy wasn't told about that hearing until after it happened, even though Baba took part by telephone.
"I thought that I was told that she was informed," of the telephone hearing, Baba said. Because her work schedule has to be arranged weeks in advance, that assumption cost Amy the ability to visit Drew for two months.
Shane smith did not return calls asking for comment.
Running out of money, time
During the weekend of Oct. 7, Amy and Wendy had another burden added to their already full plate when Amy found out that she had maxed out her student loans. Now Amy is not only frantically worried about being able to see her daughter, she has to make tough decisions about finishing her schooling as well.
Those decisions may well take her away from Wendy and the home in Windsor the two have purchased together.
Amy has to find a full-time job now in order to finish school part-time. Canadian law prohibits her from doing either there until she has lived there at least another year. And because U.S. law doesn't recognize their marriage, Wendy can't move to the States to be with her. Wendy was employed in a low-demand field, making it hard to find a U.S. employer to sponsor her, which severely limits her options for moving to this country. The couple's financial situation became worse in December when Wendy lost her job.
Michigan's weak economy, and the fact that Amy can't receive free legal help in her custody fight unless she moves back to Illinois, further complicates things for the couple.
Amy is currently applying for corrections jobs in Michigan and Illinois, where her family has connections. If she gets a job in Illinois, Amy hopes to stay with her mother and save enough money to hire a lawyer to fight for her daughter. After months of searching, she has, at least, been able to find an attorney through a referral by Jay Kaplan, staff attorney with the ACLU of Michigan's LGBT Project.
But, either way, Amy will lose her dream.
"Even me getting a good, full-time job can't even be a good experience for us," Amy said. "It can't even be exciting because it's probably going to take us apart."
Same-sex partner immigration legislation pending
The Uniting American Families Act (formerly the Permanent Partners Immigration Act) would amend the Immigration and Nationality Act to allow Americans to sponsor their same-sex foreign spouses for immigration benefits. The UAFA was introduced in June and so far only two Michigan Congresspersons – Reps. Sander Levin and John Conyers – have co-sponsored the bill in either house of Congress.
Reach OUT:
Sen. Carl Levin: 269 Russell Office Building, U.S. Senate, Washington, D.C. 20510-2202. Call (202) 224-6221. Email Sen. Levin by visiting the Contact Center on his Web site at http://www.senate.gov/~levin.
Sen. Debbie Stabenow: 133 Hart Senate Office Building, Washington, D.C.
20510. Call (202) 224-4822 or TTY: (202) 224-2066 or e-mail [email protected].
To find your U.S. Representative, visit Project Vote Smart at http://www.vote-smart.org or call the U.S. Congressional Switchboard at (202) 224-3121.
