You are asked to be an expert witness for a lesbian mother, fighting for custody of her 11 year-old daughter. The mother is currently living with her female lover and daughter. But for her lesbianism you can assume she would be granted custody. How would you argue her case?
Child custody is usually granted or retained by establishing which parent offers the best physical and social environment for a child. Factors might include the physical qualities of the home, the community, the school as well as parental availability. Child preferences can be considered if the child is mature enough to make such a judgment. New relationships are only relevant when they are viewed as having a positive or negative impact on the child or the parent-child relationship (Pollack 2002). When no extenuating factors are in place, biological and custodial parents are usually awarded physical custody (Shapiro 2002).
While the courts have frequently ruled against lesbian mothers and gay fathers being granted custody (IASHS 1994:64), over the last couple of years several individual cases have been won. As psychological research establishes that a parent’s sexual orientation has no impact on their abilities to be good parents (Patterson 1995), courts are finding fewer reasons to restrict custody.
On June 1, 2000 the Florida appellate court reversed its previous ruling in Jacoby v. Jacoby and which had granted sole custody of a seven and a ten-year-old to the father rather than the lesbian mother. The court determined that it had "penalized the mother for her sexual orientation without evidence that it harmed the children." The appeals court directed the lower court to reconsider custody without relying on anti-gay prejudices, such as fears that the children would be made vulnerable to teasing and harassment at their private religious school (Barillas 2000).
On August 14, 2000 the Oregon Court of Appeals reversed a trial court decision that had removed Darcy Collins’ two young children from her home because of her lesbian sexual orientation (Leonard 2000). The father had claimed that the home was an unacceptable place for the children because they had witnessed their mother kissing her lover in bed. Ultimately the judge surmised, “There is no evidence that the mother was promiscuous, that either child ever witnessed anything more erotic than kissing, or that either child was traumatized by the mother's behavior.” While the father considered the mother’s lesbian lifestyle a problem, the judge asserted that “it is not and cannot be significant to this court.”
Originally gay parents were never awarded custody of their children because homosexuality was considered a psychiatric illness. Lesbians were believed to be less maternal than heterosexual women and the sexual relationships of gay and lesbian parents were considered so consuming that little time might be available for parent-child interactions (Patterson 1995). In 1975 the American Psychiatric Association removed homosexuality from its list of mental disorders, stating that "homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities." While social conditions, prejudice and discrimination often cause extreme stress, there remains no evidence that homosexuality in and of itself impairs psychological functioning (Patterson 1995).
Psychological research has addressed concerns regarding the impact of lesbian parenting on gender identity and sexual orientation. Recent studies have so far established that the children of lesbians are comfortable with their gender identity, having no desire to be a member of the opposite sex and that their toy preferences, activities and interests are not different from children raised by heterosexual mothers (Patterson 1995).
Despite that the lion’s share of today’s gays and lesbians were raised my heterosexuals within a heterosexually oriented homes, there has been concern that children raised by lesbian mothers or gay fathers would show elevated rates of homosexuality. In various psychological studies conducted between 1979 and 1995, the vast majority of children raised in gay households describe themselves as heterosexual (Patterson 1995).
As an expert witness, how might I comment on the case of a lesbian mother who resides with her 11-year-old daughter and her lover? I would discuss the value of applying the nexus test (where each case is examined on its own merits) rather than enforcing the per se rule (all members of an undesirable category are disqualified) (Shapiro 2002). In as much as it’s still rare for a court to grant lesbian mothers custody of their own children, I’d emphasize the reasons for this child to stay with her mother. I’d discuss the importance of retaining status quo (Pollack 2002), meaning that if a situation is working well, there’s no reason to change it. In this case, since the girl now lives in a satisfactory situation with her mother and her mother’s partner, there is no reason to remove her from the home. I would further emphasize the qualities of the mother’s home environment and the presumably strong relationship that the child has with her mother.
I would explain why there’s no reason to presume that the mother’s lesbian relationship would have a deleterious effect on the development of the daughter. Lesbian co-mothers have often been shown to create cooperative and loving environments (Patterson 1995). Moreover, psychological research thus far has established that children raised in a lesbian home environment maintain a strong gender identity. I’d discuss that sexual orientation is largely a matter of biological inheritance and that moreover there’s no evidence that children raised by homosexuals become homosexual themselves (Patterson 1995). Considering the many alternative lifestyles American families are now adopting, today’s courts e.g. the Jacoby and Darcy cases (Barillas 2000 and Leonard 2000) are increasingly deciding to keep children in the secure known home environments of their lesbian mothers rather than honor the homophobia raised by their fathers’ attorneys.
In consideration of heterosexual role modeling I might remind the court that if the daughter eventually chooses heterosexuality, that there are plenty of examples and models including her original home life, mainstream media and certainly the culture at large. Finally, staying with her mother might have a positive impact in causing her to become more tolerant of gay and other alternative lifestyles and sexualities (LGPA 1994). Considering the diverse world we live in, the more tolerance and understanding we can engender in our children, the better off their worlds will be.
Barillas, C. “Florida Appeals Court Upholds Lesbian Custody,” The Data Lounge, June 1, 2000.
http://www.datalounge.com/datalounge/news/record.html?record=7665
IASHS (Institute for Advanced Study of Human Sexuality), Workbook Part 1 for Associate in Sex Education and Clinical Sexology Certificate, 1994
Leonard, A.S. “Lesbian Custody Win Significant: Oregon finds that child’s exposure to mother’s kissing not a disqualifier,” Gay City News, New York, 2000
LGPA, “Both of My Mom’s Names Are Judy: Children of Lesbians and Gays Speak Out,” 1994
A video produced by The San Francisco Lesbian and Gay Parents Association
Patterson, C.J. “Lesbian and Gay Parenting,” APA Research Public Interest Directorate, 1995
http://www.apa.org/pi/parent.html
Pollock, D. “How to Prepare for a Custody Hearing,” DivorceSource.com, 2002
http://www.divorcesource.com/PA/ARTICLES/pollock4.html
Shapiro, J., “Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children”
http://www.law.indiana.edu/ilj/v71/no3/shapiro.html, 2002