When married heterosexuals who have children divorce, the parents are automatically presumed to be the legal parents of their children and absent a termination due to unfitness, they retain their rights upon divorce. With gay, lesbian, bisexual, and transgendered (GLBT) parents, the rights are less clear. Only the biological parent of the child in the gay relationship is presumed to be the legal parent, and the non biological parent typically has to overcome the presumption in favor of the biological parent. In states where gay marriage and civil unions are illegal, the rights of non-legal parents are tenuous at best and depend on the willingness of judges to find de facto parenthood.
According to the literature, state custody and visitation determinations concerning homosexual, biological parents typically fall into three categories of rules: (1) per se, in which homosexuality in and of itself is considered harmful to the child; (2) burden shifting, which places the burden on the homosexual parent to show that there is no adverse impact; and (3) nexus, which creates a presumption that custody or visitation for the homosexual parent is proper, rebuttable by evidence of harm stemming from the parent’s homosexual relationships.
One commentator stated that an increasing number of courts have recognized the custodial and visitation rights of gay and lesbian de facto parents, noting that family relationships do not always mimic biological ones, and the increasing recognition of same-sex marriage and civil unions support this trend. Another noted that when a noncustodial parent is homosexual, states are divided as to how much weight should be accorded to his factor in determining the visitation suitable to the best interest of the child and that while most states do not consider the parent’s homosexuality, a few still consider homosexuality in and of itself to be harmful to the child.
At the current time all 50 states have rejected a gender-based presumption in child custody and visitation disputes in favor of a gender-neutral, best-interest-of-the-child analysis, which leaves broad discretion with the judges. A commentator noted that historically, many courts have determined that homosexuality and parenthood are irreconcilable, which results in the gay parent losing custody.
Some of the arguments that courts have used include concern for social stigma, gender role or sexual orientation confusion, and improper socialization of the children involved. Another commentator asserts that a judicial ruling that gives custody to a heterosexual parent over a lesbian or gay parent solely on the grounds of sexual orientation ignores the purpose of the best interests of the child standard, arguing that courts applying the best interests standard should focus on the child’s general necessities and not on the parent’s identity as lesbian, gay or heterosexual. Further, judges should disregard their own personal morals, prejudices, or political beliefs. It should be noted that trends indicate that courts are focusing more on the welfare of the child and placing less emphasis on sexual orientation, but there is still concern about this issue in many states.