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Custody Litigation  
 
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Since the 1970s, when gay men and lesbians began gaining wider acceptance, there has been a substantial increase in the number of children being reared by glbtq parents. According to the 2000 U.S. census, 34 percent of lesbian couples and 22 percent of gay male couples are raising at least one child under the age of 18 in their home. Recent studies conducted by Lambda Legal estimate that some 250,000 children are being raised by same-sex couples in the United States.

However, the custodial rights of glbtq parents vary widely from state to state. While the courts of some states have been almost unremittingly hostile to gay men and lesbians involved in custody litigation, others, as epitomized in a 2005 ruling by the California Supreme Court, have declared that glbtq parents have the same rights and responsibilities as other parents.

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Custody and Visitation Issues

There are three main contexts in which glbtq parents face custody and visitation issues. First, a person who enters into a heterosexual marriage and has children may later divorce after discovering that he or she is gay, lesbian, bisexual, or transgender.

In most heterosexual parenting relationships, both spouses are legal parents by biology, adoption, or marriage. This gives each parent grounds to argue for custody or visitation privileges. However, one parent may attempt to argue that the court should consider the sexual orientation or gender identity of the glbtq parent as a negative factor in determining custody.

Some judges agree with such arguments and still believe unsupported myths about the unsuitability of gay and lesbian parents, and may, therefore, award sole custody to the heterosexual parent instead of the glbtq one.

Second, same-sex couples who are raising a child or children together may separate and then become involved in a dispute over custody or visitation. Because it is often the case that only one of the partners is a legal parent, whether biologically or through adoption, the dissolution of a same-sex relationship involving children frequently raises unique legal issues.

The legal parent in such cases is more likely to win custody, no matter how close and committed both adults' relationship to the child may be. However, some states are granting parenting privileges according to the principle of de facto parenthood, which, while limited and varied from state to state, essentially bestows certain parenting privileges on the person who has assumed the role of a parent on a daily basis.

Third, in cases where a lesbian couple has produced children utilizing the services of a known sperm donor or a surrogate mother or where a gay male couple has produced children with the aid of a surrogate mother, legal issues sometimes arise if the donor or surrogate sues to determine his or her parental rights.

Furthermore, there are two aspects of custody: physical custody, meaning who has the right to have the child live with him or her, and legal custody, which designates who has the right to make major life decisions for the child, such as health care and education. These elements may be awarded in different ways. For example, one parent may win both legal and physical custody and the other none; or both may win legal custody while only one may be granted physical custody.

Custody and the Courts

There are few laws about custody and visitation on the books. This is due to the fact that every child custody dispute is resolved on a case-by-case basis. However, every state has guidelines, rules, and precedents that set the parameters by which custody cases should be decided in that state, regardless of the sexual orientation or gender identity of the parties involved.

But the way courts treat custody and visitation conflicts involving a lesbian or gay parent may vary even more than most because glbtq parenting continues to be a controversial issue in many jurisdictions.

Whether a lesbian, gay, or bisexual parent will lose custody solely based on sexual orientation is to some extent a matter of geography. As of 2007, in approximately 21 states and the District of Columbia, sexual orientation is not, by itself, considered an appropriate basis for denying a parent custody. Rather, in those jurisdictions a court will look to whether the parent's conduct or actions are in fact detrimental to the child. These states include California, New York, New Jersey, Ohio, Massachusetts, Vermont, Alaska, and perhaps a dozen others. Generally, in these states a lesbian, gay, or bisexual parent will not lose custody or have visitation restrictions put in place based on sexual orientation alone.

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