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: