| Many
lesbians and gay men have become parents in the context
of heterosexual marriages. Historically, gay parents going
through a divorce were routinely denied custody of their
children or subjected to onerous restrictions on their parenting.
For example, prohibitions against same-sex partners being
around the children and against exposing children to the
“homosexual lifestyle” were commonplace.
This
has largely changed. Courts in many states now recognize
that a parent’s sexual orientation has nothing to
do with his or her fitness as a parent, and sexual orientation
per se is not a basis to deny or restrict custody or visitation.
A number of state appellate courts have held that the sexual
orientation of a parent is not a factor in determining custody
unless it is demonstrated to actually harm the child. [See
Damron v. Damron, 670 N.W.2d 871 (N.D. 2003) (listing
cases from across the country)]. Similarly, courts in many
states are now much less likely to burden gay parents with
degrading rules about how they interact with their children.
However, a minority
of states—primarily in the South—have not followed
this trend. In these states, courts have relied on sodomy
laws or “morality” to justify discriminatory
treatment of gay parents. The ACLU believes that such treatment
violates the Constitution, and we continue to fight against
it. However, for now gay parents are treated unfairly in
these states.
Click
for a state-by-state guide to laws.
There is no guarantee
that family court judges will treat gay parents fairly—no
matter where you live or how fair the laws appear. Because
the “best interest of the child” standard that
governs custody and visitation is so flexible, homophobic
judges often can rule against a gay parent without acknowledging
that it was based on the parent’s sexual orientation.
If you have to
go to court over a dispute concerning custody or visitation,
make sure that you are represented by a lawyer. You should
try to find a lawyer who is familiar with your state’s
law on the rights of lesbian and gay parents. You should
also make sure that your lawyer is aware of the materials
included in the section, “Tools to Fight Discrimination”.
These materials can be useful if it becomes necessary to
demonstrate to a judge that living with a lesbian or gay
parent is not harmful to children.
Be aware
that some lawyers, even in jurisdictions with fair law,
advise lesbian and gay parents to agree to give up custody,
to separate from their partners, or accept other intrusive
restrictions on their visitation (e.g. supervised visitation)
in order to retain the right to visit with their children.
This advice may be based on a lack of familiarity with the
relevant law. Before entering into such an agreement, we
urge you to contact the ACLU, another LGBT legal organization,
or otherwise seek a second opinion. Once a parent enters
into a consent decree, it is very difficult to undo.
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