Lesbians & Child Custody

A Casebook

Dolores J. Maggiore, Dolores J. Maggiore

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781317947639
• Edition: 1
• Topic: Law
• Subtopic: Legal Education
• Index: Law

This work represents a collection of the most pertinent writing of the past fifteen years in the United States and Canada on the topic of lesbians and child custody. Articles were selected on the basis of their relevance, succinctness, and representativeness of the various aspects of child custody involving lesbians. Some of the original psychological studies comparing lesbian mothers to heterosexual mothers were sacrificed in favor of the piece by Patricia Falk, a thorough review of the psychological literature. For others, the length of the manuscript was prohibitive as was the case with the thorough, step-by-step Lesbian Mothers Litigation Manual by Donna Hitchens and Roberta Achtenberg of the National Center for Lesbian Rights.

THE PERSPECTIVE OF THE LEGAL PROFESSIONAL

Family Law Issues Involving Children

Editors of The Harvard Law Review

Approximately three million gay men and lesbians in the United States are parents, and between eight and ten million children are raised in gay or lesbian households.¹ This chapter examines the law concerning parenting by gay men and lesbians in three areas: custody and visitation, adoption and foster parenting, and issues related to becoming natural parents.

CUSTODY AND VISITATION

Custody cases often arise involving gay or lesbian parents and their children.² It is useful to distinguish among three types of custody and visitation disputes: those between a child’s natural parents, those between a parent and a nonparent, and those that result in termination of the parent’s rights with respect to the child. Courts employ different standards in each of these settings. In disputes between parents, courts are required to determine custody and visitation rights based on the “best interests of the child.”³ The law governing disputes between a parent and a nonparent varies by state, but generally some sort of presumption exists in favor of granting custody to the parent.⁴ In cases that may lead to termination of a parent’s rights with respect to the child, regardless of the parties involved, all states preserve the parent’s rights unless the parent is found unfit or continuation of the relationship would be harmful to the child.⁵

I. Current Law—(a) Disputes Between Parents—In custody disputes between parents, statutes⁶ and case law⁷ generally require courts to award custody based on the “best interests” of the child. Because appellate courts defer to trial court decisions regarding the best interests of the child, usually reversing only upon a showing of a clear abuse of discretion,⁸ a trial judge’s denial of custody based on a finding that the parent’s sexual orientation conflicts with the child’s best interests will generally be final.

Courts frequently consider the parent’s sexual orientation to be relevant to the child’s best interests,⁹ and several courts have used the best interests standard to deny custody to gay and lesbian parents.¹⁰ Statutory law in about half the states specifies the relevant factors in determining the child’s best interests,¹¹ and many of these factors can be interpreted to permit consideration of the parent’s sexual orientation.¹²

In some states, courts have created apparently irrebuttable presumptions against granting custody to gay or lesbian parents.¹³ Other states have rebuttable presumptions that require a gay or lesbian parent to prove that his or her sexual orientation will not harm the child.¹⁴ In contrast, at least ten states have explicitly rejected presumptions against awarding custody to gay and lesbian parents.¹⁵ Courts in these states have held that they will not deny custody to a parent on the grounds of sexual orientation absent proof that the parent’s orientation would adversely affect the child. In addition, some courts make in-depth assessments of the purported ill effects of granting custody to an otherwise qualified parent involved in a same-sex relationship.¹⁶ The best interests of the child standard also governs visitation by noncustodial parents,¹⁷ but courts presume that visitation is in the child’s best interest.¹⁸ Most states have a policy of assuring continued contact between the child and the noncustodial parent.¹⁹ Courts will generally deny or restrict visitation only if there is evidence that visitation would harm the child.²⁰ Although courts often place restrictions on the gay or lesbian parent’s visitation rights, courts have never completely denied such rights on the basis of sexual orientation.²¹ Courts have, for example, prohibited gay and lesbian parents from having their children visit overnight²² or from taking their children to the homes they share with their same-sex companions.²³ Such restrictions deny almost any chance for visits by parents who live far away from their children because the child cannot stay at the parent’s home and the parent may not be able to find or afford a place to stay in the child’s hometown. Some courts have also required that the child not be taken to gay or lesbian gatherings,²⁴ or not be in the presence of the parent’s same-sex companion,²⁵ other “known homosexuals,”²⁶ or even any unrelated member of the parent’s sex.²⁷

In contrast, some courts have refused to infer that unrestricted visitation would be harmful from the mere fact that a parent is gay or lesbian.²⁸ In Conkel v. Conkel²⁹ for example, the Ohio Court of Appeals affirmed a grant of overnight visitation privileges to a bisexual father living with his same-sex companion.³⁰ State appellate courts have struck down visitation restrictions that prevented parents from having then-same-sex companions or other lesbians or gay men in their children’s presence.³¹

In addition to cases determining the custody and visitation rights of parents involved in a divorce, a parent’s sexual orientation is often relevant in cases brought to modify a previous custody or visitation order. Most states require that a parent seeking to modify a custody order prove that a substantial or material change in die living circumstances of the child warrants a change of custody.³² Such a policy recognizes the importance of stability in a child’s environment,³³ and prevents parents and children from being repeatedly subjected to the ordeal of custody litigation. Noncustodial parents often seek to change the custody order on the grounds that the sexual orientation of the custodial parent has changed or, more often, that the court’s awareness of the custodial parent’s sexual orientation has changed.³⁴ Courts are divided on whether circumstances in existence but unknown to the court prior to the custody order amount to a material change,³⁵ but most courts have found that a change in a parent’s sexual orientation or in the courts’ knowledge of it is material.³⁶

In many states it is easier to modify a prior visitation order than it is to change custody.³⁷ Generally the best interests of the child standard governs, and the party challenging the prior order need not establish a substantial or material change in circumstances.³⁸

(b) Disputes Between Parents and Nonparents—In a custody dispute between a parent and a third party,³⁹ courts consider both the child’s interests and the interests of the natural parent in maintaining custody.⁴⁰ Most courts follow the traditional “parent’s rights doctrine” and will award custody to a nonparent only if the parent is shown to be unfit.⁴¹ In other jurisdictions, however, the nonparent need not prove unfitness but rather must make a strong showing that awarding custody to the natural parent will not be in the child’s best interest.⁴²

There are few cases in which courts have awarded custody to a nonparent because the parent was gay or lesbian,⁴³ and in those cases, the parent had voluntarily given up custody to the nonparent for some time prior to the custody determination.⁴⁴ Other courts have refused to grant custody to the nonparent, stressing the importance of maintaining the natural parent-child bond.⁴⁵

(c) Termination of Parental Rights—Neglect or dependency proceedings can result in permanent termination of parental rights. All states deprive a parent of custody of his or her child in such proceedings only upon a showing that the parent is unfit.⁴⁶ State neglect statutes usually define unfitness as requiring a finding of abandonment, abuse, or serious neglect of parental obligations.⁴⁷ Courts have held that “[u]nless the state can prove by clear and convincing evidence that a child is actually suffering or is likely to suffer physical and/or emotional harm, there is no reason to disturb the basic security of a family relationship.”⁴⁸

There are no reported dependency or neglect cases in which sexual orientation alone was found sufficient to terminate a natural parent’s rights.⁴⁹ However, courts do sometimes mention the parent’s sexual orientation as one of several factors leading to the termination of parental rights.⁵⁰

Parental rights can also be terminated by the adoption of the child by the other parent’s spouse.⁵¹ In Doe v. Doe,⁵² for example, the natural parents had divorced; the father, who was the custodial parent, had remarried and the stepmother sought to adopt the child and terminate the natural mother’s parental rights.⁵³ The Virginia Supreme Court held that the mother’s interest could be terminated only if her continued relationship with the child “‘would be detrimental to the child’s welfare.’”⁵⁴ It refused to affirm the lower court’s termination of the mother’s parental rights based merely on the mother’s involvement in a same-sex relationship and declined to hold that every gay or lesbian parent is per se unfit⁵⁵

2. Statutory Limitations on Decisions Predicated on a Parent’s Sexual Orientation—Custody denials and visitation restrictions premised on a parent’s homosexuality are impermissible under state laws that require such decisions to be based on the child’s best interests because these decisions are either based on factually unsupported assumptions⁵⁶ or on factors that bear no relationship to the child’s best interests.⁵⁷ The statutory and constitutional arguments that follow will focus on custody denials between natural parents. Due to the fundamental nature of the parent-child relationship, the arguments are even stronger in disputes between parents and nonparents and in cases involving complete termination of parental rights. The fundamental problem with the decisions denying custody to and restricting visitation by gay and lesbian parents is that they treat the parent’s sexual orientation as determinative despite the statutory requirement that custody decisions be based on the child’s overall best interests. In Jacobson v. Jacobson,⁵⁸ for example, the North Dakota Supreme Court reversed an award of custody to a lesbian mother on the grounds that the minor children might suffer from social disapproval and might be more likely to become gay or lesbian.⁵⁹ The court found these factors decisive, without considering the lower court’s finding that awarding custody to the mother would be less disruptive to the children’s schooling and their relationships with their parents, and that both parents were equallyfit.⁶⁰ In G.A. v. D.A.,⁶¹ a Missouri appellate court affirmed a grant of custody to the avowedly heterosexual father based solely on the mother’s lesbianism,⁶² despite evidence indicating that the mother would provide a better home environment.⁶³ In both these cases, the courts ignored the statutory requirement that they be guided only by the child’s best interests. Instead of ruling out one parent as a potential custodian simply because of fears based on one of the rationales discussed below, courts should, as the statutes require, balance the advantages and disadvantages to the child of awarding custody to each parent.

Cou...