PRIDE and Family Law
Part 1: Custody Battles for LGBTQIA+ Parents
Every parent involved in a custody battle harbors at least some fear that they may lose custody of their child, no matter how unlikely it is. This fear is even greater for LGBTQIA+ parents, and understandably so. While acceptance for LGBTQIA+ individuals may be increasing, particularly since Obergefell v. Hodges, stigmas against LGBTQIA+ people can still influence custody decisions in North Carolina. If you are an LGBTQIA+ parent facing a custody hearing, it is important to engage an experienced family law attorney to help prevent those stigmas from keeping you away from your child.
Judicial Standard for Determining Child Custody
You may wonder why or how your sexuality or gender identity would matter at all in a custody case. The judicial standard for determining child custody is the “best interest of the child” and any factors that impact the child’s wellbeing are included in that decision. Different states take different approaches to determining whether sexual orientation or gender identity can be included in those factors. North Carolina case law purports to use the “nexus test” – in order to be considered a factor, a parent’s LGBTQIA+ status can only be considered if there is a proven connection between that status and some real, actual harm to the child.
Unfortunately, however, this is not actually used in practice. In Pulliam v. Smith, the primary NC case on this issue, a father was denied custody of his children just because he was in a normal same-sex relationship. There were no findings that the children were specifically harmed, but the court decided that just being exposed to homosexuality was harm enough. The Court decided that showing affection and having other gay couples in the home exposed the children to “unfit and improper influences.”
Be Prepared to Counter Arguments Based on Societal Misconceptions
When facing a custody battle, the other parent may argue that your LGBTQIA+ status does harm to your child. Most of these arguments are based on societal misconceptions and are not backed by empirical data. Being prepared to counter these arguments can mean the difference between primary custody and supervised visitation. Some argue that children of LGBTQIA+ parents will face increased stigma and bullying from their peers and their community, which will cause anxiety and emotional difficulties.
Palmore v. Sidoti, a US Supreme Court case, prohibits considering those types of private biases of the community when awarding custody, as empirical studies have shown that such biases have a much smaller impact on children that previously believed, and the situation is constantly improving as acceptance increases.
Some argue that LGBTQIA+ people are automatically worse parents, unable to provide appropriate gender role models for children or raise healthy, stable, well-adjusted adults, something longitudinal studies have not supported. Children in LGBTQIA+ households often have role models outside of the home and are as well adjusted, if not more so, as their peers. Some also believe that children raised by LGBTQIA+ parents are more likely to be LGBTQIA+ or gender non-conforming themselves. This hasn’t been shown to be true but, even it if were, to claim that this is a “harm” is questionable at best.
Rely on Experts to Fight Stigmas
The best way to fight these arguments and the stigmas that judges may carry into the courtroom is to rely on the experts. A counselor who has worked with your child can shed light on their mental and emotional health, and a child psychologist can explain the long-term impacts, or lack thereof, of growing up in an LGBTQIA+ household. Depending on the specific arguments being made, your attorney may suggest other evidence, like a parenting assessment or testimony from your counselor or therapist.
Custody battles can be incredibly stressful, especially when you are facing discrimination based on your gender identity or sexual orientation, but with preparation you and your attorney can work together to overcome those biases and present a case based solely on your abilities as a parent.