Child Custody in the Context of LGBTQ Relationship Dissolution and Divorce

Abstract

This chapter discusses how families headed by LGBTQ people can engage in transformative advocacy during child custody disputes. It presents cases that demonstrate how parental sexual orientation identity can be used to bolster parental claims of fitness and bids for more custodial time with a child. It discusses how advocacy efforts for same-sex marriage and equal treatment of LGBTQ parents have often used assimilative strategies to gain legal protection. Now that many state jurisdictions expand and align their marriage-related rules to include child custody decisions, it is likely that courts will rely on assimilative narratives when making custody decisions for children of LGBTQ parents. As a result, LGBTQ families that fall outside of the stereotypical monogamous, white, wealthy, family configuration may find themselves precluded from legal protection. Deploying a wider range of LGBTQ-positive arguments in child custody cases could help courts recognize ongoing forms of bias against LGBTQ families.