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

49 Pages Posted: 16 Nov 2007

See all articles by Julie Shapiro

Julie Shapiro

Seattle University School of Law


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 Classification: K10, K19

Suggested Citation

Shapiro, Julie, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children. Indiana Law Journal, Vol. 71, No. 623, 1996. Available at SSRN:

Julie Shapiro (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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