In Chile, custody battle puts focus on sexual mores
Ruling vs. lesbian mother inspires push for gay rights
SANTIAGO, Chile -- Karen Atala Riffo had it all: a degree from the most prestigious law school in Chile, an appointment as a judge in her 30s, stellar job reviews and prospects, and three loving daughters.
But when she decided to live with the companion she loved, the Chilean Supreme Court took away Atala's daughters, deeming the home of two lesbians unfit for children. Being gay in one of the most socially conservative societies in Latin America may not be a crime anymore, but as Atala and others have learned, it still can be harshly punished.
''She's a good judge, a good professional, and a good mother. What does it matter if she's involved with a woman or a man?" said Atala's partner, Emma de Ramon Acevedo, a 44-year-old art history professor.
The highest court dismissed psychiatrists' findings that the girls wanted to stay with their mother and placed them with her former husband, an attorney who disclosed Atala's sexual orientation in tabloid interviews, and his live-in girlfriend. Atala was ordered to pay child support.
The controversial decision last year, in a country in which custody is awarded virtually automatically to the mother unless she is an addict or a prostitute, has provoked a national debate about sexual mores and tolerance. It also has lit a fire under a largely closeted gay community to fight for rights in a country in which the Catholic Church is so influential that it is illegal to get an abortion, to artificially inseminate an unmarried woman, and until recently, to divorce.
Across Latin America, the gay rights movement has gained steam in the past few years, with same-sex civil unions recognized in Buenos Aires and several Brazilian cities. Argentina granted a homosexual man custody of his two children in 2003, and both Argentina and Uruguay recognize survivor pensions for same-sex couples. Costa Rica, despite having a law against sodomy, allows gay couples to apply for shared health insurance and mortgages, and granted child custody to a transvestite who had cared for a boy since infancy. Gay pride marches across the region have grown every year.
Yet at the same time, sexual minorities throughout Latin America have endured expulsion from schools, restaurants, and parks, and discrimination at work and within their families. Laws against same-sex relations are in force in most of the English-speaking Caribbean, as well as in Nicaragua, Costa Rica, Guyana, and Suriname. Antigay movements and hate crimes are on the rise, with 78 gays, lesbians, and transgender people slain throughout the region last year, more than double the previous year, said Marcelo Ernesto Ferreyra, deputy coordinator for Latin America and the Caribbean at the International Gay and Lesbian Human Rights Commission, a nongovernmental organization based in New York.
''Latin America isn't so different from the US -- you also have both extremes," Ferreyra said from his office in Buenos Aires. For example, Brazil boasts the most cities and states with laws protecting the rights of gay couples, yet it has the region's highest reported number of hate crimes against gays and transgender people.
But the spotlight over the past year has shifted to Chile, where the Atala case divided national opinion. It was the first prominent case of an affluent and apparently competent mother losing custody of her children since a society wife-turned-actress left her husband for another man four decades ago. It was also the first time so much attention focused on a lesbian. After Atala's case became a topic of debate at watercoolers and dinner tables throughout Chile, she was passed over for numerous promotions in favor of judges with inferior rankings, and her job reviews suffered.
''This is such a macho country that any woman who doesn't stick to the model is sanctioned. As a judge, Karen felt she couldn't lie in court when asked if she was a lesbian. If she denied it, as many separated lesbian mothers in Chile have, she could have kept her children," said de Ramon, who with Atala has founded a support group for gay parents. Atala, 41, now a criminal court judge in Los Andes, 50 miles north of Santiago, asked not to be quoted for fear it could prejudice her case.
The case began in January 2003, when her former husband, Jaime Lopez, realized that she was living with de Ramon, and sued for custody, charging that their daughters would face discrimination if people knew their mother was gay. At the time, Atala and de Ramon were not public about their relationship, and neither Atala's bosses nor friends in their provincial town of Villarrica in central Chile knew until Lopez went to the media with details of his lawsuit, they said.
A judge was appointed to investigate Atala's private conduct, and her children were taken away provisionally. In October 2003, a female lower-court judge ruled that the girls should return to their mother because they had told the judge and a therapist that they preferred to live with her, and because psychologist reports indicated that they had no confusion about traditional sex roles. Lopez kept the children while he appealed, but six months later, an appeals court unanimously ruled in favor of Atala.
Lopez took the case to the Supreme Court. Sealed court documents, including psychiatrist reports, were leaked to the news media, sparking a firestorm of coverage. In a 3-to-2 ruling last May, the Supreme Court censured the appeals court for ''acting against the interests of the children," saying they were best off living with heterosexual parents. Atala was granted visitation once a month. Lopez is suing her for $1,418 a month in child support, almost three times what the court ordered her to pay.
''It's as if they were saying any woman who is different from the Virgin Mary is not a fit mother," de Ramon said. ''The Supreme Court went against the girls' wishes and confirmed social prejudices."
Yet during the month the case was before the Supreme Court, news coverage and opinion polls in mainstream newspapers reflected an evolution in attitudes.
At first, a great majority said they felt the girls should stay with their father, recalled Alejandra Aravena, director of an Internet radio station and advocacy group for lesbians, although ''nobody asked if he was fit to care for the girls. In contrast, we knew everything about Karen -- where she was born, the color of her hair, the length of her nails."
''But after all the TV programs, demonstrations, and publicity over a Spanish psychologist's study saying girls don't become lesbians just because their mother is, half were in favor of her getting her daughters back," Aravena said. ''Sadly, very few people said, 'Even if the girls become lesbians, what does it matter?' "
The only places in the world that permit gay marriage are Massachusetts, Belgium, the Netherlands, and seven provinces in Canada, according to the gay and lesbian rights commission.
With no recourse left in Chile, Atala last November took her case to the Inter-American Human Rights Commission in Washington, D.C. Her best hope is that the Inter-American Court and foreign rights groups condemn Chile for discrimination, pressuring the Supreme Court to review its ruling. In the five years that could take, her oldest daughter will be 15 and her youngest 10. Teenagers in Chile can choose to live with either parent, as long as the court approves.