A new study of family court rulings and procedures shows that the system for adjudicating whether gay parents should get access to their kids is often discriminatory, despite the fact that science says they are just as capable at raising well adjusted children as heterosexual parents.
The review, carried out by researchers at Drexel University and titled “Lesbian and Gay Parents and Determination of Child Custody: The Changing Legal Landscape and Implications for Policy and Practice,” aims to explore how, with the rising acceptance of being gay, the courts are treating an increasing number of custody battles in which one parent identifies as either lesbian or gay. (The research, it should be noted, did not track bisexuals because there is little data on self-identifying bisexual parents and custody battles).
The researchers, Emily Haney-Caron and Kirk Heilbrun, found that after reviewing how the courts assess cases involving same-sex parents, there are some biases that don’t take into account what the latest research says about gay parents: a number of studies have all shown that same-sex parents are just as effective parents as heterosexual ones. We’d expect, then, that the courts and in particular the psychological assessments that can underpin many child custody battles, would have kept up with these facts. Not so.
For instance, the courts focus on the “best interests” of a child. To do this, they apply a number of tests, one of which is the so-called “Nexus test” which attempts to find whether a gay parent’s sexuality could have a negative effect on the child in question. The burden is placed on the heterosexual parent to prove that the homosexual parent’s sexuality could cause harm to the child. Yet, what constitutes “harm” is often debatable.
Many states, this new report finds, have used social stigma surrounding homosexuality as reason enough to call into question whether it is in the best interests of a child to be raised by a gay parent. That begs a very low threshold for proof. In recent years use of the “social stigma” idea has fortunately declined, but the Nexus Test can include a number of other, particularly harmful applications.
Other things considered under the Nexus Test might include whether a parent’s homosexuality is more likely to make a child homosexual, and whether the child may feel distressed as a result of their parent’s homosexuality. Again, research shows that while there may be some slight correlation with elevated numbers of teenagers coming out when they have gay parents, there’s no research that can say gay parents cause their kids to be gay. There is also no convincing research that says gay parents create undue stress for their children. The researchers also note that some of these factors are also used to block same-sex couples from adopting or fostering.
Rather than applying the often discriminatory Nexus Test, other courts might do something slightly more subtle. They will use sexual orientation as one of multiple factors to be considered. In so doing, they may not require the heterosexual parent to prove any possible harm.
This idea isn’t used frequently in the family courts, or at least not explicitly, but there have been cases (Weigand v. Houghton) where a judgment about the appropriateness of a child being around so-called homosexual conduct has featured as a means to deny a gay parent custody. In states like Mississippi (where the aforementioned case arose), the standard has never actually been challenged, so while it may not be cited frequently, it could still be cited in the future.
The review of the literature also shows that some courts have historically bought in to the errant notion that homosexuals are more likely to abuse children than heterosexuals. This can be used to prevent children from staying with a homosexual parent overnight, and has been used in cases like a 2011 Texas case, which saw a judge prohibit a father who was now in a long term homosexual relationship from having his child spend the night while his partner was in the house. States like Arkansas had, until as recently as 2011, also routinely denied overnight visitation rights for no other reason than the parent’s sexuality.
Interestingly, though, some cases appear to have been compromised by the fact that in many states, gay and lesbian parents and their same-sex relationships are not recognized by the state and so are disadvantaged in this way. A court might therefore be forced to conclude that a child is better off in the custody of a parent who is in an opposite sex relationship because there is a legal framework that can help that relationship remain stable. While we may argue with the reasoning, this is at least one way in which the court system can go against LGBT parents for reasons beyond personal biases.
“There’s been a sea-change within the past five to 10 years – several states are currently going through the process of legalizing same-sex marriage – and a by-product of that change is that there are more people in same-sex relationships that have been legitimized by society,” researcher Heilbrun is quoted as saying. “This means that there are also more children involved in custody disputes where one parent is in a same-sex relationship. This has become an increasingly relevant issue and one that needs to be addressed.”
“As our views as a society change, we want our courts to reflect that,” Haney-Caron comments. “Our legal system should reflect the values and the realities that we hold.”
The researchers, building on work they had previously done, have identified areas in which family court proceedings can therefore better evaluate custody battles involving a gay parent.
They contend it is paramount that court psychologists ensure they are aware of the most recent literature on same-sex parenting, that they are acting within professional standards and not allowing their personal biases to affect the case in hand, and that they consider how the information they provide will be read and evaluated so as to ensure that their determinations cannot be misunderstood or misrepresented.
The researchers also say that judges must also ensure they have a good working knowledge of recent social science research so that they do not rely on antiquated interpretations of “best interest” standards when making their decisions.
The researchers also call on lawmakers to consider the most recent research into gay parenting, for instance that they might take steps to prevent judges from using sexual orientation as a factor in child custody disputes. They also highlight that it would be beneficial if there were mechanisms that same-sex couples could access that would allow them to more easily establish legal bonds with adoptive or foster children. That doesn’t necessarily have to be marriage, but it is probably the most elegant way of fixing several issues brought up in this study.
The research is published in the journal Psychology of Sexual Orientation and Gender Diversity and can be found here.
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