The Moral Dilemma: Child Custody When One Parent is Homosexual or Lesbian - An Empirical Study

Abstract

"Judges in southern Indiana are very conservative, and are most likely to find the child is adversely affected, almost without evidence..." "In Missouri, it is unlikely she'd get custody with such a relationship." "In California, child custody awards are never based on moral grounds. What parents do or who they live with is relevant only in so far as it affects the child's physical and psychological well-being..."

How do judges who are confronted with a homosexual father seeking legal custody of his children view such a relationship? Can a lesbian mother living with a woman lover under the same roof as her children be permitted to continue such a relationship when the children's father seeks custody? Do attorneys who represent homosexual fathers or lesbian mothers counsel their clients against continuing the relationships that they have with their lovers when custody is an issue? What factors do judges consider when making custody awards? This article will explore these and other issues that concern the representation of homosexual fathers and lesbian mothers who seek custody of their children.

Eighty-one attorneys from across the United States were surveyed to seek their opinions on these and many other questions relating to child custody. The surveyed attorneys have litigated custody cases in a majority of states in this country and their responses are compared among five regions of the United States. A comparison of responses given by male and female attorneys reveals a significant statistical correlation between their answers. The data is compared and contrasted in relation to the ages of the responding attorneys.

As a result of the enormous increase in divorces, judges are hearing more child custody cases than ever before. During the 1970s, the number of divorces in the United States doubled to a number surpassing one million per year. Recent projections indicate that forty-eight percent of present marriages will end in divorce, while other scholars predict that the divorce rate may increase to an even higher level. Additionally, about one-half of the couples currently divorcing have children, and the number of children involved in divorce has more than tripled in the past two decades. Estimates show that over one in five children, approximately nine million, live in single parent homes.

Society has cherished and been highly protective of the parent-child relationship. The family unit provides psychological, spiritual, and financial support, and society has gone to great lengths in order to protect and promote the integrity of the family. The United States Supreme Court, in viewing the parents' rights in the custody, care, control, maintenance, and companionship of their children, has recognized the status of fundamental liberties that guarantee protection against all but compelling state interests.

In comparison, courts in their pursuit of family integrity and preservation have not afforded homosexual fathers and lesbian mothers the same protection. Discrimination, societal prejudice, and stigma have created enormous roadblocks in the battle of lesbian and gay parents seeking custody of their children. Part of this problem lies with the courts which hear custody cases. Judges are provided with wide discretionary authority in determining custody, with the "best interest of the child" being the necessary standard mandated by state custody statutes.

This "best interest" standard which is prevalent today in state custody statutes has its roots in the early 1900s. Justice Cardozo enunciated the theory, about which he wrote: The Chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to what is best for the interests of the child.

This article will analyze how courts presently confronted with either a homosexual father or lesbian mother are resolving the custody question. Cases are discussed by breaking them into two categories: per se unfitness cases, and cases addressing the nexus between parents' behavior and the effect on the child. Empirical data will be used for purposes of elaboration and comparison. Finally, a model statute addressing the moral fitness of parents will be presented.

In the final portion of the article, child custody cases in general will be discussed. A survey of all fifty state statutes will be reviewed to illustrate the factors that judges consider in making custody awards. A model state statute will be presented for consideration as a replacement for the array of custody statutes presently in force.

Keywords: child custody, lesbians, homosexuals, gays, parenthood, divorce, discrimination, prejudice, stigma

JEL Classification: K19, K39