Custody & Visitation

Children of gay, lesbian, bisexual and transgendered Virginians should not be denied the love and care of their GLBT parent(s), and those parents should not be denied their fundamental human right to raise, love and care for their children.

Background

According to GLBTQ, The Encyclopedia of Gay, Lesbian, Bisexual,  Transgender and Queer Culture:

“Since the 1970s, when gay men and lesbians began gaining wider acceptance, there has been a substantial increase in the number of children being reared by glbtq parents. According to the 2000 U.S. census, 34 percent of lesbian couples and 22 percent of gay male couples are raising at least one child under the age of 18 in their home. Recent studies conducted by Lambda Legal estimate that some 250,000 children are being raised by same-sex couples in the United States.”

The American Psychological Association has documented that there is substantial and compelling research to show that children are not harmed and may be better parented in GLBT homes.

Despite the significant presence of at least 163,879 households headed by lesbian or gay parents in U.S. society, three major concerns about lesbian and gay parents are commonly voiced (Falk, 1994; Patterson, Fulcher & Wainright, 2002). These include concerns that lesbians and gay men are mentally ill, that lesbians are less maternal than heterosexual women, and that lesbians’ and gay men’s relationships with their sexual partners leave little time for their relationships with their children.

In general, research has failed to provide a basis for any of these concerns (Patterson, 2000, 2004a; Perrin, 2002; Tasker, 1999; Tasker & Golombok, 1997). First, homosexuality is not a psychological disorder (Conger, 1975). Although exposure to prejudice and discrimination based on sexual orientation may cause acute distress (Mays & Cochran, 2001; Meyer, 2003), there is no reliable evidence that homosexual orientation per se impairs psychological functioning. Second, beliefs that lesbian and gay adults are not fit parents have no empirical foundation (Patterson, 2000, 2004a; Perrin, 2002). Lesbian and heterosexual women have not been found to differ markedly in their approaches to child rearing (Patterson, 2000; Tasker, 1999). Members of gay and lesbian couples with children have been found to divide the work involved in childcare evenly, and to be satisfied with their relationships with their partners (Patterson, 2000, 2004a). The results of some studies suggest that lesbian mothers’ and gay fathers’ parenting skills may be superior to those of matched heterosexual parents. There is no scientific basis for concluding that lesbian mothers or gay fathers are unfit parents on the basis of their sexual orientation (Armesto, 2002; Patterson, 2000; Tasker & Golombok, 1997). On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.

Disputes over custody and visitation can arise when a person who has been in a traditional heterosexual marriage comes out and divorce ensues, when a GLBT couple have children while partners (either biologically or through adoption) and then split or when a sperm or egg donor seeks to claim custody or visitation rights over a child born to GLBT partners.

Custody and visitation are issues decided under state law, and the rights of parents and the outcome of cases vary from state to state.  In fact, because custody and visitation is not usually an area in which there are prescriptive statutes, the law is made case by case and judge by judge.

When making decisions about custody in cases in which parents divorce or separate, the general rule, however, is that the judge must decide what custody or visitation arrangement is in the “best interests” of the child.

Again, according to GLBTQ, “[a]s of 2007, in approximately 21 states and the District of Columbia, sexual orientation is not, by itself, considered and appropriate basis for denying a parent custody.”

Virginia Law

The Supreme Court in Virginia held in 1981 that being a lesbian does not per se render one an unfit parent.  Doe v. Doe, 222 Va. 736, 748 (1981).

In the most famous case in Virginia to date dealing with the right of a GLBT parent to custody and visitation, Bottoms v. Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995), however, the Virginia Supreme Court said that the “conduct inherent in lesbianism is a class 6 felony in the Commonwealth; thus, that conduct is another important consideration in determining custody.”

Bottoms involved a custody dispute between a lesbian woman and her mother.  The trial court held that Sharon Bottoms’ status as a lesbian automatically disqualified her from having custody of her child.  The Virginia Court of Appeals overturned that decision, saying that the evidence did not support the trial judge’s decision that the natural mother of the child should be deprived of custody. The Virginia Supreme Court ultimately held, however, that the trial judge’s decision awarding custody was supported by ample evidence and should be upheld.  Among other things the Court said:

“We have previously said that living daily under conditions stemming from active lesbianism practiced in the home may impose a burden upon a child by reason of the ‘social condemnation’ attached to such an arrangement, which will inevitably afflict the child’s relationships with its ‘peers and with the community at large.’  Roe v. Roe, 228 Va. 722, 728 (1985).  We do not retreat from that statement; such as a result is likely under those facts.”

Virginia courts have used a parent’s status as gay or lesbian as justification for imposing discriminatory visitation restrictions, including: (1) permitting visitation only when the gay/lesbian parent’s domestic partner was absent; (2) prohibiting the gay/lesbian parent from residing with his or her partner as a prerequisite to having custody/visitation rights; and (3) requiring the gay/lesbian parent to conceal his or her sexual orientation from the parent’s own children.  See, for example, JRV v. AOV, in which a gay father was allowed joint custody and liberal visitation but denied the right to have his partner present with the children were visiting or to show affection to his partner in the presence of his children.

Finally, in Miller-Jenkins v. Miller-Jenkins, Virginia courts have been asked to deny visitation to the second parent of a child born during a legal civil union in Vermont after a Vermont court granted visitation as a part of the decree dissolving the civil union.  A full description of the case and the answers to frequently asked questions can be found here.Download EV’s Factsheet on this case.

Toolkit

  • Help to educate the public about the negative effects of the denial of parental rights to GLBT Virginians by seeking coverage of anti-gay court decisions and the impact they have on GLBT families and children.
  • Generate letters to the editor and other educational information on research showing that children are not “harmed” by living in GLBT families.
  • Prepare to oppose legislation that seeks to limit the rights of GLBT parents to custody and visitation.

Resources

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    JRV v. AOV, a 2007 Virginia case in which a gay father was granted joint custody and liberal visitation but prohibited from allowing his partner to spend the night in the home when the children were present or engaging in displays of affection in the children’s presence, Lambda Legal