Ctody Rights of Lbian and Gay Parents Rx: The Irrelevance of Constutnal Prcipl | UCLA Law Review

Contents:

• CTODY RIGHTS OF LBIAN AND GAY PARENTS RX: THE IRRELEVANCE OF CONSTUTNAL PRCIPL
• LBIAN AND GAY PARENTS CHILD CTODY AND VISATN DISPUT
• RSIAN LAWMAKER PROPOS BILL TO STRIP GAY PARENTS OF CTODY RIGHTS
• RSIA: BILL WOULD ALLOW CHILDREN TO BE TAKEN AWAY FROM GAY PARENTS
• GAY MOSW MOSW CY GUI
• GAY MOSW · CY GUI

CTODY RIGHTS OF LBIAN AND GAY PARENTS RX: THE IRRELEVANCE OF CONSTUTNAL PRCIPL

” In four of the s, the genr-affirmg mothers lost legal and/or physil ctody of their ia that supportg or enuragg a child’s genr nonnformy is the mark of an “unf” parent has roots gay and lbian parents’ ctody battl durg the 1970s and 1980s.

As LGBTQ parents stggled to mata ctody of children after g out, they employed experts whose arguments were signed to assuage hostile judg, but which unwtgly created a standard that today puts parents like Geulas at risk of losg ctody of their the midst of the gay liberatn and lbian femist movements, many married men and women me out as gay or lbian. In the procs of divorce, the parents often battled wh their ex-spo for ctody of their children, and they faced signifint discrimatn om fay urt judg who assumed that livg wh a gay or lbian parent was not the “bt terts” of the child.

Homophobic judg and lawyers argued that gay and lbian parents would sexually abe their children, expose them to social discrimatn and raise them ways that challenged nventnal genr and sexual norms.

LBIAN AND GAY PARENTS CHILD CTODY AND VISATN DISPUT

In short, they feared that the children of gay or lbian parents would fail to bee mascule boys and feme girls. Faced wh the arguments, untls gay and lbian parents lost ctody and visatn ti began to turn when gay and lbian parents lled on psychiatric experts to ttify their fense, cludg Richard Green, one of a group of psychiatrists who fought to remove homosexualy om the Amerin Psychiatric Associatn’s list of mental illns 1973.

Green later lked his efforts to pathologize homosexualy to the rights of gay and lbian 1974, Green ttified a ctody battle between Sarah Hall and her ex-hband central Oh. Instead, even as they fend the fns of LGBTQ parents, the experts ntued to ame homosexualy and genr nonnformy as negative tras that “good” parents would help their children dog so, they created a legal rerd, and psychologil study evince that today n be wield as a weapon agast parents who support their children’s transgenr or genr-nonnformg inti.

The discrimatn they are facg fay urt today for supportg their children’s genr is a product of ntemporary opposn to transgenr visibily, but is also a legacy of gay and lbian ctody s that ma children’s genr and sexual normativy a basis for ctody termatns. So wrote two very recent law school graduat, Nan Hunter2 and myself, a 1976 law review article, one of the first ever published on ctody and visatn disput between a gay and a straight parent after the end of a heterosexual marriage.

RSIAN LAWMAKER PROPOS BILL TO STRIP GAY PARENTS OF CTODY RIGHTS

Secretary of the Department of Children & Fay Servic, 4 a se challengg Florida’s ban on lbian and gay adoptn, had been argued the Eleventh Circu before Lawrence was cid.

The poetic rhetoric of liberty and eedom Lawrence was a b hard to p down doctrally, but a nversatn I had wh Nan shortly after the lg, we both agreed that whatever meant, surely gay men and lbians uld no longer be nied the abily to adopt a child on the basis of their sexual orientatn alone whout vlatg the Constutn. 5 It also beme one of the first urts to quote Lawrence’s assertn that “[t]he prent se do not volve mors”6 and to skew the meang of that sentence away om the obv—excludg sex wh children om nstutnal protectn—and toward an terpretatn excludg the claims of lbian and gay parents and prospective parents om such protectn.

In the past ten years, no lbian, gay, bisexual, or transgenr (LGBT) parent has succsfully voked Lawrence his or her qut to keep ctody of a child or block rtrictns on the exercise of visatn rights.

RSIA: BILL WOULD ALLOW CHILDREN TO BE TAKEN AWAY FROM GAY PARENTS

In both time am, when a child’s heterosexual parent has challenged the exercise of ctody or visatn by a parent who has e out as gay or lbian, the gay or lbian parent’s assertn of a nstutnal right has amounted to nothg. I then argue that urts should no longer sgle out the nonmaral aspect of a parent’s new relatnship—gay or straight—when cidg whether to lim a child’s exposure to that relatnship.

Advot for lbian and gay parents have long argued for a nex tt, banng nsiratn of a parent’s sexual orientatn or nonmaral relatnship absent evince of s adverse impact on the child. Gay and Lbian Parents Have Not Won by Invokg Constutnal Rights.

”12 The urt acknowledged that rtrictg the relatnship between the gay father and his children imped the father’s exercise of those rights. 13 Nohels, the urt said the se prented “a most sensive issue which holds the possibily of flictg severe mental anguish and triment on three nocent children”14 and then rtricted the father durg his visatn om havg his lover prent, livg wh an unmarried partner, or takg the child to a lotn where gay men gathered or participated any “homosexual related activi. 18 This was somethg that the urt explicly said protected “ sence, homosexualy.

GAY MOSW MOSW CY GUI

”19 But, the urt ntued, the s did not extend protectn to “children who may be affected physilly and emotnally by close ntact wh homosexual nduct of adults. 36 The trial judge said the lg was not based on the father’s homosexualy and ced some factors the mother never raised. On appeal, the Idaho Supreme Court quoted extensively om Lawrence and said a parent’s homosexualy uld not be a factor absent a nex between and harm to the child.

38 Nohels, upheld the trial urt, acceptg whout qutng the judge’s statement that the cisn did not turn on the father’s homosexualy. And “exprsly nfirm[ed] that moral disapproval of homosexual persons is not a legimate basis for laws that disadvantage lbians and gay men.

F, and that this se did not require the urt to “addrs the lawfulns of a statute or the moraly of homosexualy. 69 Such rtrictns allow the nversatn to be about the superry of marriage, partially flectg attentn om the same-sex aspect of a lbian or gay uple.

GAY MOSW · CY GUI

For many years, gog back to the early article I wrote wh Nan Hunter, advot for lbian and gay parents argued for a nex tt, prohibg nsiratn of a parent’s sexual orientatn unls uld be shown to have an adverse impact on the child. But neher has anythg to do wh whether the parent is gay or straight, married or not.

Appli to both heterosexual and homosexual relatnships.... Jt as the nex tt for sexual orientatn impli that a child might be uniquely harmed bee a parent is gay or lbian, the nex tt for the prence of a nonmaral partner impli that a child might be uniquely harmed bee the parent has a new romantic partner he or she has not married. Natnwi, lns of lbians and gay men have blogil or adoptive children.

Dpe an crease the number of same-sex upl who are havg children together through assisted reproductn, most of the dividuals beme parents the ntext of a prr heterosexual marriage or relatnship before g out as lbian or gay. As a rult, the other parent a child ctody dispute volvg a lbian or gay man is likely to be heterosexual, as are the vast majory of judg, ctody evaluators, and other urt personnel.