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Test to Identify and Remedy Anti-Gay Bias in Child Custody Decisions After Obergefell

  • Author(s): Stern, Mark Joseph
  • Oehme, Karen
  • Stern, Nat
  • et al.

For the last three decades, about half of all marriages have ended in divorce, and many of these couples had children. The law concerning parental rights and access to children after divorce has shifted and changed through state law and modern trends. The chief consideration for court decisions involving contested custody and parental responsibility today is what arrangement is in the best interest of the child, or children, involved. When the Supreme Court decided Obergefell v. Hodges in 2015, expanding the rights of same-sex couples by recognizing their fundamental right to marry, the case also expanded the parental rights of gay and lesbian parents nationally. Gay couples use assisted reproduction and adoption to have children; in addition, many children with gay parents were born to these parents in earlier heterosexual marriages or relationships.  After Obergefell, courts will inevitably be faced with increased litigation concerning physical custody and parental decision-making in contested child custody cases involving lesbian, gay, and bisexual (LGB) parents. As courts grapple with case-by-case determinations of the best interest of the children involved in these cases, gay parents will need to remain vigilant to ensure that judicial anti-gay prejudice does not affect those decisions.

In this Article, we propose a new test for gay parents who believe that a court has improperly allowed anti-gay animus to affect its custody/parenting time determination. Part I of this Article describes the judicial standards that have evolved over the last century governing decisions involving child custody in divorce litigation, with particular emphasis on the modern best interest of the child standard. Part II describes emerging constitutional protections for gay people, including the right to marry recognized in Obergefell, and a recognition of the important role that gay parents have in the lives of their children. Properly read, Obergefell protects LGB parents from having their custody rights to their children restricted on account of their sexual orientation. Part III describes pockets of political and judicial resistance to Obergefell in the United States legal system, and suggests that attorneys remain alert to both overt and oblique expressions of judicial prejudice against gays. It also proposes an appellate test for use when LGB parents appeal a trial court decision alleging that their parental rights have been improperly restricted by judges who harbor antigay animus. While the new test would help gay parents who seek to assert their rights in family court, it ultimately protects those with the least amount of power in disputed custody cases: the children involved.

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