Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children

Abstract:     
When parents dispute child custody, courts determine their rights by using a "best interests of the child" analysis. In this context, courts consider a host of factors, including parental sexuality. When considering the suitability of custody for a lesbian or gay parents, most courts employ a nexus test - one that requires a showing of a nexus between parental sexuality and the well-being of the child. A smaller number continue to use a harsher test that disqualifies lesbian and gay parents under a per se rule. This article argues that closer examination reveals that even the apparently more liberal nexus test is rife with opportunities for injection of irrational judicial bias. It therefore proposes a series of measures designed to ensure that lesbian and gay parents and their children are treated fairly by the courts.

Keywords: Chid custody, lesbian parent, nexus test, lesbian legal theory, family law, lesbian and gay family law

JEL Classifications: K10, K19

Accepted Paper Series