Written by attorney Shaun Hanson

Child Custody Disputes Involving Gay and Lesbian Parents

Gay and lesbian parents have suffered decades of court discrimination in child custody cases. The state of California and other states have recently adopted a nondiscriminatory approach to granting child custody rights to gay and lesbian parents, but subtle forms of prejudice still exist.

Millions of gay men and lesbian women across the nation have biological or adoptive children. With modern technology and medical advances, some of these same-sex couples are now having children together through assisted reproduction techniques. Gay men can use a surrogate to carry a child that will be born from one partner’s sperm and a donor egg, and lesbian women can bear children with a donor’s sperm. However, a majority of individuals in gay or lesbian relationships became parents in the context of a previous heterosexual relationship or marriage. Once the individual comes out as gay or lesbian, he or she usually wants child custody even in their new partnership situation. Therefore, when a lesbian or gay man is involved in a child custody dispute with the other parent, it is likely that the dispute will be heterosexual.

This type of child custody dispute has only become popular in the last decade. Back in the 1960’s when anti-gay discrimination was widespread, it was common for gay and lesbian parents to be stripped of their parental rights altogether. It wasn’t until 1967 that things began to change for the gay and lesbian community. In Nadler v. Superior Court, the California Court of Appeal reprimanded a trial court for ruling that a lesbian mother was presumptively unfit. With this ruling, the state of California set the precedent for the next couple decades, in which courts in most states adopted a similar evidence-based, child-centered approach for child custody cases.

Today, only a few states remain in which courts are permitted to automatically presume that a lesbian or gay parent is unfit to be a child’s primary custodian. States that have adopted a nondiscriminatory approach include Georgia, Mississippi, Oklahoma, Tennessee, Arkansas, South Carolina, West Virginia, and more. However, discrimination against gay and lesbian parents still exists in subtle forms. For example, some state courts may prohibit divorced parents from living with an unmarried partner as a condition of custody or visitation rights. Courts may also rule that parents cannot bring their children to religious services that affirm lesbian or gay people.

Even though the court prejudice has dramatically improved over the last forty years, gay and lesbian parents are still the victims of discrimination in custody and visitation cases in some states. When determining custody rights, it is the responsibility of the court to take into consideration the parent-child relationship and certain factors that are involved, such as the length of the relationship between the adults, and whether they and the child lived together. The court must also consider the intentions of both partners to parent together and if there were any parenting agreements signed. Despite several court victories and overall improvements in California and other states, gay and lesbian parents seeking custody of their children may face court discrimination in some states. If you are a gay or lesbian parent seeking to win child custody ( rights of your children after a divorce, a skilled divorce lawyer can provide the dedicated legal counsel you need to fight for your rights in court.

Additional resources provided by the author

The attorneys at Hanson, Gorian & Bradford are skilled in handling all types of family law and divorce cases. We are committed to helping clients during the difficult times surrounding divorce, custody and visitation disputes. Our firm is passionate about providing clients with personalized attention outside of the courtroom, and we are always available to answer your questions and concerns. A Riverside divorce attorney at our firm will provide compassionate support and legal guidance during your case, and will fight for your rights in court. Regardless of whether you are fighting for child support, child custody or dealing with spousal support issues, we have the resources you need to succeed in any type of family law case. Our firm helps individuals and families throughout the Riverside area with dedicated and experienced legal counsel, and we can help you achieve your legal objectives as well. Contact a Riverside divorce attorney or visit our website at to learn more about what we can do for you.

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