SEXUALITY IN CHILD CUSTODY DECISIONS*

Abstract

For gay and lesbian parents, child custody decisions have progressed considerably since the time it was generally accepted by courts that homosexual parents were per se unfit for custody. Most states now employ an orientation blind standard or nexus test, meaning that the court will not take a parent's orientation into account unless there is evidence of harm to the child. Although this is a step in a positive direction, there are unforeseen costs. Orientation blindness may seem neutral on the surface because nexus tests usually employ the term “sexual orientation,” but the question of harm is applied only to homosexual parents and not heterosexual parents. Gay and lesbian parents who wish to raise sexual orientation claims about the positive aspects of role‐modeling and community inclusion may be discouraged from doing so because parent‐child role‐modeling has traditionally been seen as recruitment, predation or the disruption of “normal” sexual development when the parent is gay or lesbian.Key Points for the Family Court Community: Gay and Lesbian parents have strong incentives to argue against parent‐child imitation. Heterosexual parents are not similarly constrained about positive modeling for their children. Orientation‐blind standards may not be neutral in the application because of the strong social belief in parent‐child imitation. If courts are aware of the disincentives that lesbian and gay parents have against arguing for positive modeling, they can more neutrally apply the orientation standards.