SAME SEX CUSTODY DISPUTES

Families come in all sizes, colors, shapes—and sexual identities. While state legislatures and courts continue to struggle with same sex marriages, civil unions, and adoptions by gay, lesbian, bisexual, and transgendered people, the states have pretty much resolved how to handle family disputes arising in these groups.

Regardless of whether “parents” are married, there are child custody laws in every state that apply to unmarried parents. When children are involved, the state asks first about who the “legal parent” is. A legal parent is generally someone who is (a) listed on a birth certificate; (b) is acknowledged after the birth of the child in an affidavit of parentage; (c) is the male spouse of a woman who was married when the child was born, and paternity of the child was not contested by the male spouse; and/or (d) is the adoptive parent of the child. In most states, custody is only determined between the legal parents. In a minority of states, a person who has established a parent/child relationship through actual possession of the child (even if he/she is not the legal or biological parent) or who has become a legal guardian may petition for custody.

Once a person establishes the right to participate in a custody proceeding by being the legal parent, the guardian, or custodian, then the “best interest factors” are usually applied without regard to the sexual identity issues. Michigan has a very specific best interest test, which includes the following factors:

a. The love, affection, and other emotional ties existing between the parties involved and the child.

b. The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

c. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized or permitted under the laws of this state in place of medical care, and other material needs.

d. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

e. The permanence, as a family unit, of the existing or proposed custodial home or homes.

f. The moral fitness of the parties involved.

g. The mental and physical health of the parties involved.

h. The home, school, and community record of the child.

I. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

j. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

k. Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

l. Any other factor considered by the court to be relevant to a particular child custody dispute.

(known as the “Best Interests of the Child Factors”)(MCLA 722.23). Most of the appellate courts in the United States have held that sexual identity is not a “moral factor” or a “mental health” factor. Despite this, if a parent has multiple sexual relationships, or unhealthy relationships, that will be as much an issue in the custody case as it would have been if this issue had arisen between heterosexual parents.

In one case decided by the court in Ann Arbor, MI, two women co-parented children who had been born to one of the partners after she had been artificially inseminated by a sperm donor. The women’s relationship broke down after a probate court had approved a “second parent adoption” (where the biological mother agrees to terminate her parental rights, and the two women become adoptive parents together). After several hearings, the court concluded that the non-biological mother was the superior parent, and custody was awarded to that partner. This particular case makes it clear that sexual identity (and even biological ties) are not controlling when it comes to deciding custody in this context.