Nationwide, millions of lesbians and gay men have biological or adoptive children. Despite an increase in the number of same-sex couples who are having children together through assisted reproduction, most of these individuals became parents in the context of a prior heterosexual marriage or relationship before coming out as lesbian or gay. As a result, the other parent in a child custody dispute involving a lesbian or gay man is likely to be heterosexual, as are the vast majority of judges, custody evaluators, and other court personnel. Even in states that do not permit courts to discriminate on the basis of sexual orientation, overcoming judicial stereotypes about lesbian and gay parents in such a case can be a daunting challenge. In states that openly condone anti-gay discrimination, the prospects for a gay or lesbian parent to gain custody may be nil. Currently, there are at least six states in which courts automatically presume that a lesbian or gay parent is unfit to have custody and at least as many in which courts may prohibit a lesbian or gay parent from exercising visitation in the presence of a same-sex partner.
Despite the persistence of anti-gay bias in some states, judicial responses to lesbian and gay parents have improved dramatically over the past four decades. In 1960, an openly gay or lesbian parent was unlikely to be awarded custody in any state, even if he or she was the primary caretaker, the more skilled or attentive parent, or the person with whom the child was most bonded. Not infrequently, lesbian and gay parents were stripped of their parental rights altogether, simply for being lesbian or gay, or on the grounds that being in a same-sex relationship meant that one was presumptively violating state sodomy laws.
By the late 1960s, courts in some states began to adopt a more liberal approach that stressed the importance of evaluating parents as individuals, without regard to their sexual orientation. In 1967, for example, the California Court of Appeal reprimanded a trial court for ruling that a lesbian mother was presumptively unfit. "We are not saying here that the trial court abused its discretion," the court of appeal explained. "Rather, we are saying that the trial court failed in its duty to exercise the very discretion with which it is vested by holding as a matter of law that petitioner was an unfit mother on the basis that she is a homosexual." Nadler v. Superior Court, 225 Cal. App. 2d 523 (Cal. App. 1967).
Throughout the 1970s and 1980s, courts in most states adopted a similarly child-centered, evidence-based approach, rejecting categorical assumptions based on a parent's sexual orientation in favor of an individualized assessment of the child's best interests in each case. Today, there are few states in which courts are permitted to assume that a gay or lesbian parent is automatically unfit to be a child's primary custodian. Rather, in most states, a parent's private consensual adult sexual conduct, regardless of the gender of the parties involved, is generally considered pertinent to child custody only when there is some evidence that the parent's conduct is detrimental to the child.
Moreover, contrary to what some might assume, jurisdictions that have adopted this nondiscriminatory approach are geographically diverse and include Arkansas, Georgia, Mississippi, Nebraska, Oklahoma, South Carolina, Tennessee, and West Virginia, among others. In Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), for example, the Arkansas Supreme Court struck down the state's sodomy statute and disapprovingly referred to a prior case denying custody to a lesbian mother because she engaged in "illicit sexual conduct." Id. (citing Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987)). Following its decision in Jegley v. Picado, the Arkansas Supreme Court reversed a trial court decision removing custody from a mother based on accusations that she was involved in a lesbian relationship, where there was no evidence of any harm to the children. Taylor v. Taylor, 2003 Ark. LEXIS 213 (2003). Citing the majority rule in other states, the court held that allegations regarding a parent's sexual orientation do not justify a change in custody unless there is "concrete proof of likely harm." Id. at *23-24.
Disturbingly, however, while most states no longer permit courts to apply negative presumptions against lesbian and gay parents, others have failed to curb even the most extreme manifestations of judicial animus toward lesbians and gay men. In 2002, for example, the Alabama Supreme Court affirmed a trial court decision denying custody to a lesbian mother. Ex Parte H.H., 830 So. 2d 21 (2002). Chief Justice Moore authored a concurring opinion condemning homosexuality as an "inherent evil and an act so heinous that it defies one's ability to describe it" and concluded:
The Court of Appeals erred in reversing the judgment of the trial court and holding that there was no evidence indicating that the mother's homosexual relationship would have a detrimental effect on the children. From its earliest history, the law of Alabama has consistently condemned homosexuality. The common law adopted in this State and upon which our laws are premised likewise declares homosexuality to be a detestable and abominable sin. Homosexual conduct by its very nature is immoral, and its consequences are inherently destructive to the natural order of society. Any person who engages in such conduct is presumptively unfit to have custody of minor children under the established laws of this State. Id. at 37-38.
Similarly, in Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995), Sharon Bottoms was raising her son with her female partner when Sharon's mother sued for custody of her grandson. The trial judge awarded custody to the grandmother and opined:
I will tell you first that the mother's conduct is illegal. It is a Class 6 felony in the Commonwealth of Virginia. I will tell you that it is the opinion of this Court that her conduct is immoral. And it is the opinion of this Court that the conduct of Sharon Bottoms renders her an unfit parent. Id. at 109 (Keenan, J., dissenting).
The Virginia Supreme Court affirmed, reiterating that the "conduct inherent in lesbianism is punishable as a . . . felony." Id. at 108.
Lesbian and gay parents also face more subtle forms of discrimination in child custody and visitation due to their inability to marry. In some states, for example, courts may prohibit divorced parents from living with an unmarried partner as a condition of custody or visitation. While this rule may appear neutral with regard to sexual orientation, it is not. As the Indiana Court of Appeals recognized in striking down a restriction of this type in a recent case, the practical effect of such a rule is to prohibit lesbian and gay parents "from ever being involved in a long term relationship that is the equivalent of marriage." Downey v. Muffley, 767 N.E.2d 1014, 1021 (Ind. Ct. App. 2002).
Lesbian and gay parents may also face discrimination for attending religious services that are affirming of lesbian and gay people or for participating in lesbian and gay political organizations. In H. v. P., 643 S.W.2d 865 (Mo. App. 1982), the Missouri Court of Appeals prohibited a gay father from bringing his children to gay political gatherings or to a gay-affirming church. Similarly, in Marlow v. Marlow, 702 N.E.2d 733, 1998 Ind. App. LEXIS 2052 (Ind. Ct. App. 1998), the Indiana Court of Appeals denied custody to a gay father because of his involvement in gay and lesbian church groups and with the organization Parents, Families and Friends of Lesbians and Gays (PFLAG).
In sum, despite enormous progress over the past forty years, lesbian and gay parents still face discrimination in custody and visitation cases in a number of states. Although the judicial animus in these cases is directed at adult lesbians and gay men, the true brunt of the discrimination is borne by their children, who are inevitably harmed by decisions that undermine their love and respect for their parents and their pride in their families-and, by extension, themselves. As the court noted in M.P. v. S.P., 169 N.J. Super. 425, 404 A.2d 1256 (N.J. Super. 1979), removing children from lesbian or gay parents "diminishes their regard for the rule of human behavior, everywhere accepted, that we do not forsake those to whom we are indebted for love and nurture merely because they are held in low esteem by others."