How Judges Make Custody Decisions
There are few laws about custody and visitation on the books. However, every state has cases, rules and precedents that set the parameters by which custody cases should be decided in that state, regardless of whether the parties involved are gay or lesbian. The lack of statutes in most states is because every child custody dispute is resolved on a case-by-case basis.
But the way courts treat custody and visitation conflicts involving a lesbian or gay parent may vary even more than most because our parenting remains a controversial issue. For example, in some places, judges view a parent's sexual orientation as irrelevant. In other areas, they see gay or lesbian people as inherently unfit to be parents, even though there are no genuine grounds for this and any such discriminatory treatment should be resisted.
Moreover, the law varies with regard to custody disputes over the children of two biological parents, as in a heterosexual break-up, and disputes over the children of a same-sex relationship. In the latter situation, for example, the nonbiological parent typically has to overcome a presumption in favor of the biological parent.
The "Best Interests" Principle
Yet if there is one common principle used to resolve custody disputes, it is that of determining what is in "the best interest interests of the child." It may be difficult to determine and define what is in the best interest of a child. Some states have rules that help judges determine this in a particular case. But commonly, judges use their own reasoning by considering questions such as these:
• How much time do the parents spend with the child, and who provides the primary care?
• What is the quality of the parent and child bond?
• Where has the child been living?
• Does one parent undercut or nurture the other parent's relationship with the child?
• Does one parent act in any way that could cause harm to the child?
• Does one parent offer a child the opportunity to build relationships with siblings in a way that the other does not?
"Best Interest" Applied to Lesbian and Gay Parents
It is especially difficult to gauge how a judge might weigh the best interests of a child when one or more parents are lesbian or gay. Indeed, these decisions often depend on where you happen to live; whether the judge who hears your case views a sexual orientation as irrelevant to parenting or inherently harmful to a child; and, as mentioned above, whether you are coming out of a heterosexual relationship or a same-sex one.
In most heterosexual parenting relationships, both parents are legal parents by biology, adoption or marriage. This gives both grounds to argue for custody or visitation privileges even though some judges will lean toward awarding custody to a heterosexual parent instead of a gay or lesbian one.
However in many same-sex relationships, only one parent is a legal parent. The legal parent in such cases is more likely to win custody, although some states are granting parenting privileges according to the principle of de facto parenthood - something that, while limited and varied from state to state, essentially bestows certain parenting privileges on one who has assumed the role of a parent on a daily basis.