Child Custody and Visitation

Child custody and visitation can be complicated issues for LGBTQ parents. While this is primarily a state issue, LGBT parents from many states face similar hurdles when working within the court system to obtain custody or visitation rights to their child. Below I’ll cover a few different situations that LGBTQ parents might face when disputing child custody and visitation:

The first situation is one in which there is one legal parent. This would be the case if a LGBTQ individual had a child from a previous heterosexual relationship/marriage. Their current LGBTQ partner would be considered a “legal stranger” in this situation meaning that they would have no legal rights to the child. In some states, if this individual has been an important character in raising the child, the court may grant legal rights to them.

Another situation would be one in which a child has two legal parents. This would be the case of a joint adoption or a second parent adoption. This would be handled the same way in courts as custody issues of non-married heterosexual couples. The court would consider what is in the “best interest of the child.”

While child custody and visitation issues for LGBT parent can be settled by courts, there are still biases that these individuals face. Certain states, such as California, have passed nondiscrimination laws so that a parent’s sexual orientation cannot be the basis of being denied custody or visitation. That said, the judges who ultimately decide these cases might be motivated by their own prejudice. This could lead to  decisions that would discriminate against LGBTQ individuals, or in the case of two LGBTQ legal parents, might mean discrimination against the individual who presents as more gender-queer.

The below link is to a 2007 article from the journal Law & Sexuality. In this article Lesbian (M)Otherhood: Creating an Alternative Model for Settling Child Custody Disputes, Nadine Gartner argues that the current court litigation relies on a model of heterosexual relationships to decide child custody cases, and thus discriminates against couples who don’t fit into the model . Judges might favor the lesbian partner who conforms more to traditional gender roles, and fits more into the normative model of the mother. Gartner proposes a model of mediation rather than litigation because it “best reflects lesbian family values and circumvents a potentially heterosexist judiciary” (66).

http://www.heinonline.org/HOL/Page?collection=journals&handle=hein.journals/lsex16&id=49