Gay Marriage Would Not be Sufficient to Protect the Custodial Rights of Homosexual Parents

Abstract:     
The subject of homosexual parents' rights is becoming an increasingly common subject of litigation. Some commentators and judges believe that gay and lesbian people are not fit to raise children and that children are harmed by being raised in such households. As a result, many gay and lesbian parents, whether biologically related to their children or not, are deprived of what would otherwise be considered a fundamental right: the right to raise their children. Non-biological parents are particularly vulnerable to the court's bias because of the lesser standard applied to non-parents in custody disputes.

Gay marriage would extend the custodial rights of the biological parent to the non-biological parent. Specifically, it would guarantee that both parents would have standing in custody battles. Moreover, it would raise a strong presumption of parental rights over the rights of third parties such as grandparents. In disputes with third parties, either parent would have the benefit of being subject to the parental unfitness standard in jurisdictions where that test is used rather than the looser child's best interests test. However, judging by some courts' willingness to deny even biological homosexual parents' rights, same-sex marriage would not be sufficient to guarantee equal treatment under the law for gay and lesbian parents.

Keywords: custody, law, children, gay, lesbian, biological parent, non-biological parent, marriage, divorce

JEL Classifications: H73, K39

Working Paper Series