GLBT Parents’ Rights During Custody Decision Making: The Influence of Doctrine, Statute, and Societal Factors in the United States

Abstract

There are a number of legal and social factors that impact the judicial decision-making process when gay, lesbian, bisexual, and transgender (GLBT) parents in the United States are involved in a custody dispute. Not only are standard custody doctrines, such as the best interests and parental rights doctrines, at issue, but laws that deny marriage to gay men and lesbians, laws that govern parentage when couples use assisted reproductive technologies, and societal definitions of sex, gender, and family come into play as well, and they interact with one another in complicated ways. This research outlines and models the various ways these factors come together to create a complex legal context for nonbiological GLBT parents who are seeking custody rights to their children. Importantly, however, it also suggests that even in the face of this kind of complexity, patterned judicial responses do emerge. Specifically, judicial attention to children's best interests is consistently associated with the protection of nonbiological parent-child relationships.

KEYWORDS:

• child custody
• children's best interests
• gay parent
• lesbian parent
• parental rights
• judicial decision making

Acknowledgments

This research was supported by a grant from the National Science Foundation, Law and Social Science and Sociology Programs (#0849681, Mellisa Holtzman, PI) and a General Faculty Research Grant from Ball State University. The author wishes to thank Kendal Kosta, Nora Hall, Rebecca Peters, Lindsey Yoder, Matthew Wright, Owen McConnell, Jennifer Moore, Heather Nipper, Kelsey Englert, and Matthew Barrows for valuable research assistance.