Homosexuality and Child Custody

2015 was a big year for supporters of gay marriage and gay civil rights. The US Supreme Court, in Obergefell v. Hodges, held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Now the law throughout the United States, California has recognized gay marriage since 2008 (though only by those married during the window before Proposition 8 was passed) and then again in 2013 when the US Supreme Court issued its opinion in Perry v Hollingsworth overturning the Proposition 8 prohibition.

Despite the legal authority to marry granted to gay couples in the United States, there was (and still is) a question about whether these couples should be allowed to raise children, adopt children, or whether being gay should be a factor in deciding custody and visitation issues in a California Court.

There is a case from 1975, Chaffin v. Frye where the court stated, “In exercising a choice between homosexual and heterosexual households for purposes of child custody a trial court could conclude that permanent residence in a homosexual household would be detrimental to the children and contrary to their best interests.”

It is important to note that Chaffin v. Frye has not been specifically overturned, though the case Marriage of Birdsall is generally held to be the current judicial view on homosexuality and child custody issues. The Court of Appeal in Birdsall held, “A parent is not unfit, as a matter of law, merely because he or she is homosexual. But the court may consider a parent’s homosexuality as a factor…along with…the other evidence presented.” Birdsall was decided in 1988, and as discussed above, a lot has changed since both of these rulings.

It is difficult to believe that the court would speak today about homosexuality as it did in 1975 (Chaffin), and the criminal statutes mentioned have been repealed. Nonetheless, this case contains a strong statement on the placement of children into a homosexual household.

The American Academy of Pediatrics concluded in 2006, in an analysis published in the journal Pediatrics:

“There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with 1 or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families.”

The findings of the American Academy of Pediatrics appear to be the direction the courts are heading with regard to homosexuality and child custody. When coupled with the change in the national public opinion on gay marriage and gay equality, it is unlikely that any future decision by the upper courts will include a parent’s sexual orientation as a factor in determining what is in the best interest of a child.

If you anticipate a legal child custody battle as a result of a divorce, it is important to know that a lawyer can help you understand the process accurately.

Nancy J. Bickford, a Certified Family Law Specialist (CFLS), is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Please call 858-793-8884 to understand how she can help your child custody battle begin and end with keeping your kids where they belong: With you.


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