In arguing for same-sex marriage and divorce, many LGBTQ advocates employed a “just like you” assimilationist strategy. With respect to parenting, this strategy drew on the research to show similar outcomes for the children of same-sex couples and relying on the tangible benefits that marriage is seen to provide to families. But “just like you” assimilation strategies present a complicated opportunity to consider the implications of deploying an assimilative version of LGBTQ identities in child custody disputes. Assimilative strategies cannot offer sustainable legal protection against bias when applied to families who are, by definition, outside the norm. For those LGBTQ families who are non-normative as relative to mainstream notions of same-sex parenting (e.g., married, monogamous, mid-to-high income), they may be in the unenviable position of explaining why they are unlike mainstream lesbian and gay married couples and still capable of being good parents. Being included within mainstream norms for parenting matters a great deal in child custody disputes because there is often an implicit, if not explicit, argument that one parent is more fit than another or that one parent’s identity characteristics are better for a child to be exposed to than the other parent’s characteristics.
Identity as a Positive Factor
Being deemed a more fit parent by a court is not just a matter of social status, but comes with legal consequences such as more time with a child or greater decision-making ability, thereby rendering the stakes for asserting a parental identity quite high. Identity characteristics can be invoked to represent a parent’s desire to pass on beneficial family traditions (e.g., religious practices, culture, or language), which in turn serves as a proxy for good parenting and preferred childhood outcomes like educational attainments and healthy development. For years, parents with LGBTQ identities were at risk of bias and unfair child custody outcomes because of judicial bias and mistrust. Now that acceptance of LGBTQ identities has increased, I argue that LGBTQ parents may wish to invoke their identities as a positive factor during child custody disputes as other parents have done.
I consider how parents of color and religious parents have fared in courts when they have invoked identity as leverage for custody outcomes in order to shed light on LGBTQ advocacy possibilities... I discuss representative cases of parents who deploy racial, religious, and LGBTQ identities to illustrate how courts consider a child’s best interest in light of a parent’s identity. This section highlights how courts tend to treat a parent’s religious identity claim with deference, unless there is evidence that a parent’s beliefs or practices harm a child. When courts take a parent’s race into account, the tendency is to protect against overt racial bias, such as treating one parent as more fit because of race or the race of an intimate partner. However, when parents ask courts to support positive racial identity development in the form of passing to children cultural/ethnic traditions connected to race, courts tend to view race as a malleable trait that can be easily developed by either parent. In contrast, LGBTQ parents have been forced to demonstrate that simply having an LGBTQ identity does not endanger their children. The outlook is better now for LGBTQ parents because of scientific evidence that their children’s outcomes are good, but there are limits to defining the value of LGBTQ parenting by how closely parenting behavior and children’s outcomes hew to idealized heterosexual parents.
Kim Hai Pearson
Kim Hai Pearson completed a Law Teaching Fellowship at the Williams Institute at UCLA School of Law, a J.D. at J. Reuben Clark Law School at Brigham Young University, and an M.A. from the University of Utah. Her research and writing areas include identity, family law, children, LGBTQ, race, and religion.
LGBTQ Divorce and Relationship Dissolution: Psychological and Legal Perspectives and Implications for Practice will be available later in 2017.