BDSM, Kink and Child Custody

By Wesley Fenza, Attorney at Law · October 8, 2019

By far, the most common question I get from people who practice consensual, risk-aware BDSM is what effect their nontraditional sexuality may have on their custody and parental rights. Unfortunately, there is no easy answer. In child custody matters, social workers, judges, and other administrative personnel often have a great deal of discretion, so individual preferences and prejudices can influence the decisions that get made.

New Jersey has agencies which are authorized to temporarily terminate the parental rights of any parent or guardian who meets certain criteria. Parental rights can be terminated permanently by court order. If your parental rights have been terminated or are in danger of being terminated, it is imperative that you speak with a qualified attorney immediately to protect your rights.

Grounds for Terminating Parental Rights

In New Jersey, the most common grounds for terminating the parental rights of a parent is that termination is in the best interests of the child. To terminate on those grounds, the New Jersey Division of Child Protection and Permanency (DCP&P) must prove six elements:

1. You have harmed or will continue to harm your child.
2. You are unwilling or unable to end the harm or danger of harm you pose to your child (the harm may be that your child is emotionally attached or bonded to his or her current caretakers and would suffer serious and lasting emotional damage if separated from them), or you are unable or unwilling to provide a safe, permanent home for your child.
3. The child is being harmed because he or she does not have a permanent home.
4. DCP&P has done what it was required to do to help you correct your problems and to arrange for you to visit with your child.
5. There are no reasonable alternatives to termination of parental rights, such as placing the child with a relative.
6. Terminating your rights will benefit the child more than it will hurt the child, usually because someone is waiting to adopt him or her.

Other grounds for termination of parental rights in New Jersey include failure to correct problems, abandonment, conviction of certain crimes against the child, or a court finding that you committed a serious act which put your child in danger of death or serious bodily injury.

The Best Interests Standard

In New Jersey, when there is a custody dispute between the two people already designated as legal parents or guardians, child custody matters have as the polestar consideration the "best interests of the child." Courts are tasked to make the custody determination that will best serve the child's interests. Courts will operate under a presumption that the best interests of the child are served by maintaining a close relationship with both parents, but that presumption can be overcome by presenting evidence to the contrary.

Attitudes Are Changing

While atypical sexual activities may affect a custody case, the good news is that attitudes are changing, and courts and agencies are much less likely than in the past to consider consensual BDSM or kink to be inherently harmful. The biggest change has been from the Diagnostic and Statistical Manual of Mental Disorders, which is the go-to book for mental health professionals involved in diagnosing mental disorders. The DSM-5 (published in May of 2013) recognizes a difference between "paraphilias," which are kinks or other unusual sexual desires, and "paraphilic disorders," which require intervention. The effect of the change is that mental health professionals across the country are now much more likely to view BDSM or kink, if practiced in a risk-aware and consensual manner, as a personal choice rather than inherently problematic. In fact, many New Jersey judges may be annoyed by any party that attempts to use a partner's kink against them if it has no effect on the children.

Practical Steps for Parents

However, old attitudes die hard, and some courts and agencies still view kink and BDSM as disordered behavior and may use it as grounds to terminate or limit parental rights. To protect themselves as much as possible, parents should take the following steps:

• Keep all bedroom activities in a locked bedroom and out of earshot of all children.
• Keep all sex toys, equipment, erotica (including tasteful art), or other sexually explicit material in a locked drawer and away from children.
• Take care that children are not exposed to a BDSM dynamic outside of the bedroom.
• Password protect your computer. If children have access to your computer, use a separate (password-protected) user account for any lifestyle-related online activities.

Even taking these steps, however, is no guarantee that your lifestyle won't be unfairly used against you. In particular, there is always the danger that parties may be dishonest about what actually occurred. The most important step in any proceeding is to speak with a qualified attorney to make sure that your interests are protected.

This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney–client relationship. Every case is different; consult an attorney about your specific situation.