'[R]elegated Through No Fault of Their Own to a More Difficult' System: Applying the Obergefell Opinion to Custody Principles

Abstract

The language of the U.S. Supreme Court’s ruling in Obergefell v. Hodges will be interpreted and scrutinized for years to come due to the opinion’s wide breadth of impact across multiple areas of law. But, this paper exposes an impact in an unexpected area of law. This piece aims to acknowledge implications woven into the Court’s language, which are not recognizable at first glance, but could potentially transform child custody law and the controlling best interests analysis framework. Namely, the Court imposes a per se presumption that a marital relationship creates stability and continuity for parenting. This piece explains the majority and dissenting opinions’ reasoning and structure, then dissects statements within the opinions that could damage the balance necessary to maintain the current, delicate child custody system. The paper discusses the assumptions underlying the Court’s statements and offers counterpoints and empirical evidence to the contrary. Then, the paper proposes solutions to mitigate the effects of an unjustified presumption of stability within a marriage before custody law is overtaken by the same.

Keywords: Obergefell v. Hodges, same-sex marriage, child custody