A new academic review has surveyed the legal landscape for lesbian and gay parents in child custody cases, both with same-sex former partners and different-sex ones. It found that courts have not always taken into consideration the social science research that has found children raised by gay or lesbian parents are as well-adjusted as their peers raised by straight, cisgender parents.
The review was conducted by Emily Haney-Caron, a J.D./Ph.D. candidate in Drexel University’s joint program in psychology and law, and Kirk Heilbrun, Ph.D., a professor of psychology at Drexel, and published in the new journal Psychology of Sexual Orientation and Gender Diversity from the American Psychological Association.
“Although the social climate in this area has shifted substantially, and changes have also been seen in the legal arena relevant to custody decisions involving gay or lesbian parents, such custody decisions may still consider sexual orientation,” the authors write.
The role of sexual orientation in a custody decision usually revolves around the “nexus” or “adverse impact” test, they explain, which means that for sexual orientation to be considered relevant, the straight parent must show a nexus, or connection, between the gay or lesbian parent’s sexual orientation and harm to the child. As it turns out, however, the empirical evidence from social science research “does not support the nexus between parental sexual orientation and children’s adjustment,” nor does is support the conclusion that gay and lesbian parents are more likely to raise gay and lesbian children (as if that would necessarily be a bad thing). Therefore, they conclude, “courts’ custody decisions that have presumed enhanced risk to children who have been raised by lesbian and gay parents have been poorly supported in meeting the adverse impact test.”
Frighteningly, the authors also inform us that in a few jurisdictions, the nexus test doesn’t matter, and a parent’s sexual orientation may be considered relevant to a custody decision without the need to show harm from the orientation, “provided it is not the sole factor considered.” Mississippi is the only state in which this is clearly the rule, however — but their position is based on a 1999 state Supreme Court case. Time to revisit that one, methinks.
The review also looks at custody cases involving separated same-sex couples. Only legal parents can seek custody in most states, unless it can be shown that there would be “substantial harm” to the child if they did so. Given the patchwork of laws applying to same-sex parental rights, and the fact that six states still do not permit second-parent adoptions, that’s a big hurdle that doesn’t always consider the best interests of the child.
It gets even trickier: “Even when one state recognizes both parents as legal parents and provides for joint custody or visitation for the second parent, such orders may not be recognized or enforced by another state.” Why? The courts may think that the Defense of Marriage Act (DOMA) takes precedence over the law that requires states to give full faith and credit to other states’ custody and visitation determinations. Yes, even after the U.S. Supreme Court ruled against DOMA last year in U.S. v. Windsor. The Windsor decision only applied to Section 3 of DOMA, which relates to federal recognition of same-sex marriages. Section 2 of DOMA, which says states do not have to recognize same-sex unions from other jurisdictions, still stands. The review reminds us (my italics), “Because custody and parenting are entirely state issues, the Windsor ruling does not change the legal landscape regarding custody involving lesbian or gay parents.”
One has to be a bit cautious reading this review, however. Much of the social science research they cite dates from the past 10 years or so. Many of the court cases they cite directly, however, are before that date, making it silly to draw sweeping conclusions like Drexel’s press release does: “Court decisions that favor a heterosexual parent over a gay or lesbian parent in a custody dispute often do not consider important social science research on parenting by gay and lesbian individuals.” That may be true for earlier cases, and even some today — but I’d love to see more detail on whether the balance of judgments has shifted over time as the social science research has grown.
The authors nonetheless make several sensible recommendations. Policymakers, courts, and psychologists conducting custody evaluations should familiarize themselves with the current research on lesbian and gay parents. Custody evaluations should be culturally competent and take this research into account, along with relevant local, state, and federal laws, drawing conclusions based on an assessment of that particular family. Furthermore, “Custody cases involving two same-sex parents may be the only kind of custody evaluation in which it is important to routinely consider the impact of separation from or loss of a caretaking relationship with a person who may not be a legal parent of the child.” Additionally, states should pass laws that limit the consideration of sexual orientation in custody decisions, or that create legal parental relationships for both members of a same-sex couple.
Hear, hear.
