Last month, we said that for a detailed answer to this, you probably need to hire ( yes, that means pay) a good local lawyer. If you want a general idea or a headstart, doing some research on your own may be your preference. Last month we looked at the rare instance of cases in the Federal system and now we are going to tackle state and local matters.

Research is complicated because you can’t look just for “BDSM”. I can’t think of a statute I have ever seen professionally that said “BDSM” in it–although some do say “sadomasochism”. If it’s a case about child custody, you’ll need to look for that, and then for reasons that a court might declare someone either a fit, or unfit parent for primary custody.

“Is BDSM really an assault?” Get ready to look up Assault, Battery, Domestic Violence, Peace Disturbance, and a few other things. This is the exact thing your lawyer has to do when you ask her the same question, and it is why she is likely to charge you serious dollars.

Is it a possible Obscenity case ? Again, read Miller v. California, then look at your state statutes about obscene materials, pornography, indecent exposure and similar terms.

The National Coalition for Sexual Freedom (NCSF) has a good list of terms to check that might apply to your situation and that can be a helpful starting point, but the bad news is that it’s a long list. Keep checking, because your answer might be on the last item on the list.

If you live in Idaho and google “Idaho statutes” and “child custody” you are likely to get a link a good starting point. Try it. Did you get http://www.legislature.idaho.gov/idstat/Title32/T32.htm ? If you did, congratulations, and you can start reading statutes.

Chapter 10 Parent and Child looks promising. Go there. You’ll see that 32-105 says something about custody after separation. Read it and you’ll find “The decision of the court must be guided by the welfare of the child.” That language is in virtually every child custody statute. Now read the rest of 32-1005 and you’ll see it’s about a disabled parent fighting for custody.

Under 2 (b) you’ll find this “Disability shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, other sexual behavior disorders, substance use disorders, compulsive gambling, kleptomania or pyromania. Sexual preference or orientation is not considered an impairment or disability. Whether an impairment substantially limits a major life activity shall be determined without consideration of the affect of corrective or mitigating measures used to reduce the effects of the impairment.” Its not looking good for our kinky client to say that BDSM is a disability in this context.

Next you may want to read some Idaho cases that interpret that statute. That gets tougher, because the cases are listed in the order they were decided, and our kinky custody case may be listed in between a case about armed robbery, and about whether a business owes more Idaho payroll tax withholding. You can probably Google up a case or two, but you won’t have any way to know if they are the newest cases, or the best for your side and to find more cases you probably need to go to the local law library unless you want to pay money to the publishing houses that have legal research online.

You find a great Idaho case that looks like it says “you win!”. Now you need to Shepardize it to see if it is still the law in Idaho or was overruled last month. That’s more money and more researching and you really should do it with every case that appears to help your side.

Now repeat this process for the local ordinances, with the warning that sometimes they are not online at all, or are indexed in very peculiar ways, or the online versions of them are only updated every few years, which means they might not be current. Add that my county is 8 miles in one direction from County 2 and 10 miles in a different direction from County 3, both of which have their own ordinances. Also my county has ninety-two incorporated municipalities, each of which probably have their own ordinances. So, can my group host a big BDSM even in Municipality 1 in County 1 ? We have to check in a lot of places, because we have 91 more municipalities to find out about. And we should also check the administrative agencies like Liquor Control that may have some regulations about this.

If this sounds a lot harder and time consuming than you hoped, yes, it is. It’s also a large part of why that lawyer wanted so much money. It’s possible for a non-lawyer to find correct answers and be sure of them, but it will almost always involve a lucky guess or a huge investment of time. It’s far more realistic to learn how to find enough law to have an intelligent discussion with your lawyer.