Child Custody Cannot Be Based on Sexual Identity or Preference

Gone are the days when a parent can be punished or marginalized because of his/her sexual identity or preference. In Michigan, the only factors to be considered are those set forth in the state's best interest test:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home, or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

(k) Any other factor considered by the court to be relevant to a particular child
custody dispute. MCL 722.23; Bowers v Bowers, 198 Mich App 320, 327-328; 497 NW2d 602 (1993).

Unless there are unusual issues in a case, sexual identity or preference cannot be framed as a moral issue or a mental health issue.

In Dumm v Brodbeck, 276 Mich App 460 (2007), a father tried to amend parenting time based on the mother's lesbian relationship. Because he failed to prevent competent evidence that the child's best interest had been compromised by the mother's sexuality, the court denied his motion.

In Healy v Bradford, an unpublished 1999 case, however, the court transferred physical custody of a child from his lesbian mother to his father. While the mother was a lesbian and the father was clearly concerned about this, the court's decision was not focused on that fact. What happened here was that the court relied on a psychologist's "conclusions that plaintiff's negative attitudes and perceptions of men and relationships had a negative effect on the child. This finding [was] supported by the evidence, given plaintiff's history of poor relationships with men and her admittedly negative attitudes about men and relationships. Moreover, the court's finding that defendant was favored under this factor is supported by the evidence, since the evidence indicated that defendant was a stable person with a healthy relationship with the child. The evidence also indicated that plaintiff was overly encompassing and controlling of the child, which would have a destructive effect on the child's development." The court in this case was also influenced by evidence that the mother had been dishonest.

In Hall v Hall, 95 Mich App 614 (1980), a much older case, the Court of Appeals awarded custody of the children to the father instead of their lesbian mother. The mother appealed, claiming the court saw her as unfit because she was a lesbian. The court, however, found that the record supported awarding custody to the father in this case: "The detailed findings of the trial court fully and fairly considered all of the evidence that was presented by the parties. With regard to the plaintiff's admitted preference for a homosexual relationship, the evidence was found to demonstrate that, given a conflict, the plaintiff would unquestionably choose the relationship over the children. Such potential conflict may be considered as bearing on the issue of which parent is the more qualified to furnish guidance in the best interests of the children. We are also persuaded that the trial court correctly regarded plaintiff's homosexuality as only one factor in its determination of moral fitness."

The "moral of the story," so to speak, is that parents are judged as parents these days. If they do not put their children first in their lives, they may lose custody. This would be same result if a father preferred time with his girlfriend over time with his children. Further, if a parent expresses disdain for the other parent--because of that parent's gender, sexual identity, religion, race, or other characteristics--this is likely to cause harm to the child who naturally loves both parents. Again, the issue is not sexual identity but, instead, how the court analyzes each factor in the "best interest test."

The bigger problem for same-sex relationships is that often a partner without a legal relationship to a child becomes a de facto "parent" of the child many times. If this partner has not adopted the child and is not the biological and/or "legal parent" of the child, that person has no right to request custody if he/she breaks up with the parent. Hopefully, in these situations, the adults will see past their own issues to recognize that the child's best interest must come first. Ideally, the child will have continuing contact with all the important people in his/her life, and the former partners will be able to subordinate their own interests to those of the child.