|Who cares, wins|
Patricia M. Logue
Notions of ‘family’ in the United States have undergone a fundamental shift toward a more functional definition that focuses on who cares for children day after day rather than mere biological or legal ties. There is a shared understanding among many Americans, based on long experience, that children can be raised well in many different circumstances, including by married heterosexual couples, single mothers and fathers, step-parents, the extended family and gay and lesbian individuals and couples. It is accepted as well that children should not be penalised for the circumstances of their birth or upbringing. A child who has the security of one or two stable, loving parents or parental figures is considered fortunate, especially as compared to the many American children who languish in foster homes for want of families to take them in. Rather than prescribing what families should look like, there is greater emphasis on providing permanency and stability to children in their core relationships, including those with lesbian and gay parents.
As the United States enters the 21st century, no state allows gay or lesbian couples to marry; only one, Vermont, allows ‘civil unions’ that give same-sex couples state-based marital rights by a different name. Though many couples enter into religious marriages or secular commitment ceremonies of great personal importance, same-sex couples remain "unmarried" in the eyes of the law. The route to security for lesbian and gay parent-child relationships outside of marriage — the construct that underlies most family law in the US — often leads through a legal maze, and sometimes dead ends, particularly for non-biological parents. Because family law issues are decided state by state, there is wide variance in legal standards. But overall, in every major area of law affecting lesbian and gay parents and their children, there have been dramatic advancements in improving the security of parent-child ties notwithstanding a parent’s sexual orientation.
Much energy is still spent in the ‘culture wars’ on the topic of gay parenting, long after a consensus formed among reputable medical and social science experts that lesbian and gay parents are as qualified to be parents as their heterosexual counterparts, and that their children are equally healthy and well-raised. Dissident voices still stoke outdated myths, as the orchestrated outcry over the recent decision of the American Academy of Paediatrics — following the lead of the American Psychological Association and many other professional groups — to publicly support adoption by same-sex couples demonstrated. And in many courtrooms the fact that a parent is lesbian or gay is still the proverbial ‘elephant in the room’, threatening to tower over all other considerations rather than assuming its proper proportion in the traditional ‘best interests of the child’ inquiry used in adoption and custody cases. But broadly speaking, the outlook for securing lesbian and gay parent-child relationships has never been brighter.
Historically, the largest wave of encounters between lesbian and gay parents and the court system has occurred in the context of custody and visitation contests after divorce. Many lesbian and gay people realise or come to terms with their sexual orientation only after entering into opposite-sex marriages and having children. When such marriages end in divorce, the gay parent’s sexual orientation is often made an issue by the other parent or the court in deciding with whom the children should live. Such cases have arisen across the country at least since the 1950s and have provided a chance to put the reality of gay parenting up against pernicious myths that children are harmed in some way from having a lesbian mother or gay father. In the last half-century, this case law has traced a clear arc, moving away from per se rules disfavouring lesbian and gay parents to a more neutral, evidentiary and child-centred approach that has provided a foundation for the treatment of lesbian and gay families in all contexts.
The overwhelming modern trend in custody and visitation cases is not to attach negative presumptions about parenting ability or conduct to a parent’s sexual orientation, but to look at whether there is any evidence of harm to children that the court should take into account. A clear majority of states take this approach. In recent years, even states generally considered most socially conservative on issues of homosexuality and parenting have disclaimed any per se rule restricting custody for lesbian or gay parents on the basis of sexual orientation alone. However, the lack of a per se rule is not always synonymous with neutrality. In some states, there remains legal hostility towards lesbian and gay parents gaining custody, particularly where the parent is in a relationship with a partner, and concerns about "moral fitness" still work against lesbian and gay parents.
A recent example makes the point. The Alabama Supreme Court unanimously ruled in February 2002 against a lesbian mother who sought to change custody from her ex-husband. Chief Justice Roy Moore — infamous for putting up the Ten Commandments in his courtroom — issued a lengthy concurring opinion. Citing scripture and ancient legal sources rather than evidence of harm, he declared all lesbian and gay parents unfit as a group and homosexuality an inherent evil. But the rest of the Court refused to join him, issuing a brief opinion ruling against the lesbian mother on other grounds. The majority decision is hardly a ringing endorsement of gay parents, yet it is a loud rejection of Moore’s status — rather than evidence-based analysis — in perhaps our most conservative state.
Today, much litigation in the area of visitation and custody rights for lesbian and gay parents has focused on the parents’ intimate relationships with same-sex partners. Some courts routinely impose rules on divorced parents that keep them from having unmarried partners overnight when the children are present. But a gay parent can never ‘cure’ such a restriction through marriage and thus, in practical effect, may never be able to integrate her family in full. In recent years, more courts have declined to impose a particular moral framework on the family in the absence of evidence of harm. Instead, they indicate that a general level of discretion and good judgement is expected of all parents with respect to their intimate relationships, but move out of the realm of trying to regulate the coming-out process or partner introductions between parents and children. These trends parallel the evolution in the legal treatment of ‘immoral conduct’ by opposite-sex couples in custody disputes. States have generally moved from assuming harm to children from a divorced parent’s sexual or live-in relationships with non-marital partners, for example, to requiring evidence that the conduct adversely affects a child before giving it weight.
It is also frequently argued in gay custody cases — though seldom in parallel contexts — that courts should award custody to the non-gay parent so that children are not subjected to the alleged social stigma of having a gay, lesbian or bisexual parent. The stated concern is to prevent children from having to face harassment because of who their parents are, or to appease teenage children’s discomfort at being perceived as different. But the clear trend in decisions is that it is inappropriate, ineffective and even unconstitutional for courts to make judgements based on social attitudes like these. The idea, for example, that members of religious minorities or political candidates should lose custody because of negative social attitudes or public insults generally strikes people as repugnant.
Case law has eschewed making parental relationships turn on public prejudice. The US Supreme Court struck this note in a famous 1984 case, Palmore v. Sidoti, that refused to permit custody to turn on a parent’s interracial relationship and its presumed negative impact on a child: "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Several decisions involving gay parents and custody or visitation have applied the same reasoning.
While custody cases arising from opposite-sex divorces have shaped the legal treatment of gay and lesbian parent-child relationships, more and more gay and lesbian people — acting on the same impulses to parenthood that many Americans share — are intentionally planning their own families. For non-biological parents, adoption offers the most complete security for parent-child relationships. Every state except Florida, whose ban on adoptions by any gay person is under review by the federal court of appeals, allows lesbian and gay individuals to adopt children. Adoption is also increasingly available to same-sex couples through ‘joint adoption’ of a child to whom neither is a parent. And courts in about half the US, including eight jurisdictions with explicit statutes or binding appellate decisions, have allowed lesbian and gay partners to adopt each other’s children through so-called ‘second-parent adoption’, an analogue to step-parent adoptions by married spouses.
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Patricia M. Logue is Senior Counsel for the Lambda Legal Defense and Education Fund.
She lives in Chicago, Illinois