Many lesbians and gay men have become parents in the context of heterosexual marriages. Historically, gay parents going through a divorce were routinely denied custody of their children or subjected to onerous restrictions on their parenting. For example, prohibitions against same-sex partners being around the children and against exposing children to the “homosexual lifestyle” were commonplace.

This has largely changed. Courts in many states now recognize that a parent’s sexual orientation has nothing to do with his or her fitness as a parent, and sexual orientation per se is not a basis to deny or restrict custody or visitation. A number of state appellate courts have held that the sexual orientation of a parent is not a factor in determining custody unless it is demonstrated to actually harm the child. [See Damron v. Damron, 670 N.W.2d 871 (N.D. 2003) (listing cases from across the country)]. Similarly, courts in many states are now much less likely to burden gay parents with degrading rules about how they interact with their children.

However, a minority of states—primarily in the South—have not followed this trend. In these states, courts have relied on sodomy laws or “morality” to justify discriminatory treatment of gay parents. The ACLU believes that such treatment violates the Constitution, and we continue to fight against it. However, for now gay parents are treated unfairly in these states.

There is no guarantee that family court judges will treat gay parents fairly—no matter where you live or how fair the laws appear. Because the “best interest of the child” standard that governs custody and visitation is so flexible, homophobic judges often can rule against a gay parent without acknowledging that it was based on the parent’s sexual orientation.

If you have to go to court over a dispute concerning custody or visitation, make sure that you are represented by a lawyer. You should try to find a lawyer who is familiar with your state’s law on the rights of lesbian and gay parents. You should also make sure that your lawyer is aware of the materials included in the section, “Tools to Fight Discrimination.” These materials can be useful if it becomes necessary to demonstrate to a judge that living with a lesbian or gay parent is not harmful to children.

Be aware that some lawyers, even in jurisdictions with fair law, advise lesbian and gay parents to agree to give up custody, to separate from their partners, or accept other intrusive restrictions on their visitation (e.g. supervised visitation) in order to retain the right to visit with their children. This advice may be based on a lack of familiarity with the relevant law. Before entering into such an agreement, we urge you to contact the ACLU, another LGBT legal organization, or otherwise seek a second opinion. Once a parent enters into a consent decree, it is very difficult to undo.