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Custody Litigation  
 
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In approximately a dozen states the issue of sexual orientation and custody has yet to be directly addressed by an appellate court and, consequently, there is no reported case law. Some of these states include Oregon, Hawaii, Nebraska, Arizona, and Idaho. In these states, courts may be less likely to focus on sexual orientation in determining custody and may be far more concerned with facts and evidence about who was the primary caretaker, if the children are more bonded with one parent than another, and which parent is best suited to care for the children after the divorce or break-up.

Finally, and most troubling, there are a handful of states where gay, lesbian, or bisexual parents have recently lost or been denied custody based almost solely on sexual orientation. These states include Missouri, Mississippi, Alabama, Virginia, and North Carolina.

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There is, however, one common principle used to resolve custody disputes: what is in "the best interest of the child." Some states have rules that help judges determine this in a particular case, but it can be especially difficult to gauge how a judge might weigh the best interests of a child when one or more parents are lesbian or gay.

Generally, judges use their own reasoning by considering how much time the parents spend with the child and who provides the primary care. Other questions they might consider are the quality of the parent and child bond; where the child has been living; whether one parent undercuts the other parent's relationship with the child; whether a parent acts in a way that could cause harm to the child; and whether one parent offers a child the opportunity to build relationships with siblings in a way that the other does not.

Even when a glbtq parent receives custody of a child, judges may impose onerous conditions, such as not allowing a same-sex partner to live in the household.

Groundbreaking GLBTQ Custody Cases

One of the earliest same-sex custody battles took place in Washington in 1972, when Sandy Schuster and Madeleine Isaacson, two lesbians in a relationship with each other, were allowed to retain custody of the six children between them after divorcing their respective husbands. However, the judge also stipulated that the two women could not live together, a dilemma the couple resolved by renting apartments across the hall from each other and maintaining joint households. Two years later, their ex-husbands sued again for custody. This time the judge not only awarded custody to the mothers, but also lifted all restrictions, setting an important state precedent for the rights of gay and lesbian parents.

In a similar case, some thirty years later, Ulf Hedberg and his ex-wife separated when their son was four years old; the child went to live with Hedberg and his male partner. Five and a half years later, the boy's mother petitioned for custody. The court allowed Hedberg continued custody on the condition that his partner move out of the family's home. The couple sold their house and moved into separate apartments. Hedberg later asked the court to lift the restriction in light of the havoc it was causing in the boy's life. In March 2006, the Maryland Court of Special Appeals ruled that it was not in the child's best interest for his father and his father's partner to be separated, and the family was reunited.

The vulnerability of glbtq parents is nowhere more evident than when a third party, often one of the child's grandparents, challenges a glbtq parent's right to raise his or her own child. One of the most famous cases involved Sharon Bottoms, a divorced lesbian mother from Virginia, who was sued by her mother, Kay Bottoms, for custody of her son Tyler. The trial judge awarded custody of Tyler to his grandmother, ruling that Sharon Bottoms was unfit because she lived with her partner April Wade and because her sexual conduct was both illegal in Virginia at the time and, in the opinion of the judge, immoral. Although the ruling was reversed at the appellate level, it was reinstated by the Virginia Supreme Court.

In The Matter of J.D. Fairchild, a very visible case revolving around Ohio's 2004 constitutional amendment prohibiting marriage between same-sex couples, concerned Therese Fairchild, who lived in a relationship with her partner, Denise Fairchild, for many years. The two jointly planned their child's conception and in 1996 Denise gave birth to their son. To ensure that Therese had a protected legal relationship with the child, the two women entered into a court-approved joint custody agreement in 2001. Several years after signing the agreement the couple's relationship ended, and Denise attempted to keep the boy from Therese by arguing that Ohio's antigay amendment invalidated the court's shared custody order. In January 2007, a judge ruled that a custody agreement between two lesbian parents is valid and enforceable despite the state's amendment prohibiting same-sex marriage.

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