Unless you have been living under a rock for the past 6 months, you are no doubt aware that the Supreme Court decision in Obergefell v. Hodges guarantees same-sex couples the fundamental right to marry by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
This decision now gives same sex married couples the right to legally divorce, as well as all of the other benefits that heterosexual married couples have always enjoyed, including: tax relief, emergency medical decision-making power, access to domestic relations laws, spousal benefits (including workers’ compensation), inheritance rights, and spousal testimonial privilege. With respect to marital dissolution for same sex couples, how does this long-awaited change in law affect issues such as custody disputes?
Custody may prove to be a difficult situation for divorcing same-sex couples, due to traditional perceptions of caregiver roles (which usually favor the mother) and biological ties between a child and one, both or neither of the parents.
Despite the continued persistence of anti-gay bias or homophobia in some states today, 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.
By the late 1960s, 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, (1967) 225 Cal. App. 2d 523.
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 still 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.
However, even in states that do not permit courts to discriminate on the basis of sexual orientation, overcoming inherent judicial stereotypes about lesbian and gay parents can be a challenge. In states that still openly condone anti-gay discrimination, the prospects for a gay or lesbian parent to gain custody may be nil. For example, there are currently at least six states in which courts may automatically presume that a lesbian or gay parent is unfit to have custody.
“Legal Parents” and Second Parent Adoption
A legal parent is a person who is legally recognized as a child’s parent and has the right to have custody of a child and make decisions about the child’s health, education, and well-being. A legal parent is also financially obligated to support the child.
The most common means by which LGBT non-biological parents establish a legal relationship with their children is through a “second parent adoption.” A second parent adoption is the procedure by which a co-parent adopts his or her partner’s child without terminating the partner’s parental rights, regardless of marital status. As a result of the adoption, the child has two legal parents, as opposed to a parent and step-parent, and both partners have equal legal status in terms of their relationship to the child. This can be done between same-sex couples, whether they are married or not.
In California, when a legally married couple has a child together, they are both automatically presumed to be the legal parents of the child. This presumption also applies to same-sex marriages, since they too are recognized as valid marriages. This means if they get divorced, they both remain legal parents unless a court terminates one or both of their parental rights.
Typically the law regarding custody has been based on public policy perceptions of caregiver roles and biological ties to one or both of the parents. Clearly both of the those traditional perceptions would have to be modified in determining custody in many same-sex marriages when children are involved. Just as overall divorce laws took a few decades to be fully formed, laws surrounding same-sex divorces may take a while to get up to speed.
If you have a legal issue involving the rights of same-sex partners, you may want to consult an attorney at Cage & Miles, LLP and set up a free 30-minute consultation today!