CHILD CUSTODY AND THE HOMOSEXUAL PARENT
Family Law Seminar, 1983
George A. Sprecace, M.D.
TABLE OF CONTENTS
I. State Interests and the Rights of Autonomous Parents and Guardians
A. Intervention by the StateII. Psychology, the Homosexual and the Homosexual Parent/Guardian1. Parens PatriaeB. Statutory Law
2. The Father
3. Tender Years Presumption
4. The Effects of Women's Rights Movement and Child Labor Laws
5. The Best Interests of the Child Formulation1. Uniform Marriage and Divorce ActC. Common Law in Connecticut
2. Connecticut General Statutes: Public Act 73-373 GS Sections 46b-56
D. The Adversary System in This Area
A. The Nature of HomosexualityIII. The Law and Homosexuality in Child Custody
B. Homosexuality and Effects on Parent/Child Relationships
A. Homosexuals and the Legality of Attempted MarriagesIV. The Rights and Responsibilities of Personal Lifestyle; A Summary
B. Effect of Homosexuality of Adult on Child Custody Proceedings1. Uniform Marriage and Divorce ActC. The Transsexual and Child Custody Issues
2. Potential Effects of Equal Rights Amendment
3. The Developing Common Law
"Any judge or trial lawyer, any forensic
psychiatrist or other mental health specialist will affirm that child custody
is, indeed, the ugliest of all litigation."1 These words highlight
the special problems involved in marital dissolution, a phenomenon in this
country which "if not yet endemic certainly appears to have reached epidemic
proportion."2 This paper will explore the current state of the
law and of social policy as they relate to critical decision-making processes
in the realm of child custody awards. The many competing rights and
tensions encountered in such deliberations are particularly highlighted
when the issue involves an alleged homosexual parent, the central focus
of this paper.
This subject matter is best organized
by reviewing initially the matter of child custody in general, since the
state of both statutory and common law is reflective of a continuum in
evolution of social policy on this issue, through the ages and particularly
during the last few decades. Since social policy and thus judicial
determinations reflect strong age-old bias with regard to modern psychologic
and psychiatric research involving homosexual persons, the status of such
scientific opinion will be reviewed. The evolution and current status
of both statutory and common law as related to child custody and the homosexual
parent will be explored; and a related issue involving the rights of a
transsexual parent will also be reviewed to highlight the direction of
developments in this area.
Judicial interest in the matter of
child custody reflects the basic view that the child must be singled out
by law as by custom for special attention since the child is considered
in legal contemplation to be an incomplete being, not competent to safeguard
his own interests. Historically, as well as currently, this official
state interest in the child has deferred to broadly defined autonomy of
parents or guardians with rights to be free of state interference.3
These rights generally fall within the penumbra of the right to privacy
guaranteed by Amendment I of the United States Constitution. Indeed,
the importance of family integrity at a time when the social fabric of
the United States is unravelling and the American family is becoming increasingly
fragmented and isolated is reflected in the extension of these rights to
the communal as well as nuclear family, as reflected in Moore v. City
of Cleveland.4 That case upheld the right of a grandmother
and her grandchildren to live together in an area whose zoning laws precluded
cohabitation by other than nuclear family members (husband, wife, children).
Notwithstanding a basic incapacity
of the law to supervise interpersonal relationships, the state is called
upon to intervene in circumstances where the custody of a child has been
brought into question by one of the parents, or at a time of desertion
or conviction of a sexual offense against the child, or serious bodily
injury inflicted or allowed to be inflicted on a child. A special
instance includes the refusal by a parent to allow lifesaving care.
The bases for such intervention include the doctrines of parens patriae,
establishing the role of the state as sovereign and guardian of persons
under legal disability; and the doctrine of police powers, an exercise
of sovereign rights of the government to promote order, safety, health,
morals and general welfare within constitutional limits as an essential
attribute of government.5 The perspective of history in this
area leads from the time of the Roman Empire, which emphasized the rights
and prerogatives of the father vis-a-vis the child, such "rights" including
custody, slavery and even murder. That situation was essentially
unchanged through the Middle Ages and was significantly changed only in
the mid-Nineteenth Century with the advent of the "tender years" presumption.
Even this presumption in favor of the mother was applicable only for the
first three or four years of life, whereupon custody would revert to the
There followed a period of social revolution
in this country which included both the women's rights movement of the
late Nineteenth Century and particularly the child labor laws of the early
Twentieth Century, as a result of which children became less valuable to
fathers who as a consequence began to reduce their assertion of rights
in child custody cases. The seminal development occurred in the mid
1920's when Judge Cardozo in Finlay v. Finlay6 held that
the sex of the parent should no longer be considered a primary factor in
determining parental preference. Cardozo stated that in child custody
cases the judge "does not proceed upon the theory that petitioner, whether
father or mother, has a cause for action against the other or, indeed,
against anyone. He acts as parens patriae to do what is best
for the interests of the child."7 The implementation of this
doctrine during the following forty years resulted in custody proceeding
to the mother in the vast majority of cases. During the last decade
a resurgence of interest in male custody has developed as a proper application
of the "best interests of the child" doctrine. Nowhere is the application
of that doctrine stressed or tested more than in those cases involving
a homosexual parent, the focus of this paper.
Statutory law with regard to child custody matters is reflected generally in the Uniform Marriage and Divorce Act, 1970, Part 48 and in Connecticut in Public Act 73-373, "An Act Concerning The Dissolution of Marriage" and General Statutes Section 46b-56, "Superior Court orders regarding custody and care of minor children in actions for dissolution of marriage, legal separation and annulment." The Uniform Marriage and Divorce Act (1970) Part 4-Custody, Section 402, Best Interst of the Child, provides
"The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors, including: 1)the wishes of the child's parent or parents' as to his custody; 2) the wishes of the child as to his costodian; 3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests; 4) the child's adjustment to his home, school and community; and 5) the mental and physical health of all individuals involved. The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child..."The last sentence of this provision as quoted finds specific applicability to the issue of child custody determinations involving homosexual and transsexual parents. The applicable Connecticut statutes provide no specific criteria for awarding custody other than the best interest of the child, the child's preference if the child is "mature", and the cause of the marital breakdown if relevant to the issue of child custody.
Common law in Connecticut has been
quite reflective of the evident legislative intent of the statutes.
Implementing the best interests of the child criterion, custody has been
modified replacing the mother with the father.9 A court order
need not conform to the request of either petitioner or cross petitioner.10
Parental interest in a child is not a property right and can be terminated
without Parental consent. Parents' legal and natural rights may be
subordinated to the rights and interests of the minor child.11
The noncustodial parent's privilege of visitation is not an absolute right,
but is also dependent upon the best interests of the child criterion.
Visitation rights could be 1
restricted or terminated.12 A minor child's choice is considered if the child is of an age and capacity to form a rational judgment.13 Where granting visitation rights will promote discord, it will be denied.14 Custody award once made should be conclusive for the sake of stability unless new circumstances arise, but the court does have continuing authority if necessary.15 The court is vested with broad discretion in this area.16 Where both were good parents, the court granted custody to the mother where there was a good relationship there and where she was willing to facilitate visitation rights.17 However, the divorced husband's right of visitation with his children is not an absolute right.18
Regarding "the immoral companion" a
father's visitation rights were limited to exclude overnight visits because
of his cohabitation with another woman out of wedlock and its effects on
the child.19 Case law as related to homosexual and transsexual
parents reflects similar concerns of the court. As will be seen below,
however, the court often distinguishes between the sexual preferences of
parents covertly expressed versus overt expression within the view and
perception of the child.
The actual application of the adversary
system in the arena of child custody determination has been and continues
to be broadly attacked. Among the most articulate proponents of the
involved child's psychologic best interests have been the authors Goldstein,
Freud and Solnit in their two monographs, Beyond the Best Interests
of the Child20 and Before the Best Interests of the Child.21
These authors emphasize that the best interests of the child have already
been compromised by the dissolution action and that as a result all parties
involved should rather seek "the least detrimental available alternative
for safeguarding the child's growth and development" as a standard.
The authors emphasize the child's psychologic need for unbroken continuity
of affection and of stimulating relationship with an adult, the "psychologic
parent." They emphasize addressing the child's sense of time and low frustration
tolerance, with short and long-term effects of disruption in continuity.
They emphasize treating the child custody issue as an urgent matter and
treating the child custody decree as final rather than conditional.
In this regard the most controversial
recommendation of these authors has been to make visitation discretionary
on the parent who has been awarded custody. This issue has been hotly
debated, is contrary to the Uniform Marriage and Divorce Act provisions
and is also contrary to case law. The authors insist that "a child's
placement should rest entirely on consideration for the child's own inner
and developmental needs...society must use each child's placement as an
occasion for protecting future generations of children by increasing the
number of adults who are likely to be adequate parents. Only in the
implementation of this policy does there lie a real opportunity for beginning
to break the cycle of sickness and hardship bequeathed from one generation
to the next by adults
who as children were denied the least detrimental alternative."22
Particularly adamant with regard to the perceived inapplicability of the adversary system to this area is the work of Richard A. Gardner.23 The author considers the adversary system appropriate to criminal acts, but not to this area. He emphasizes that mental health experts should serve as impartials amd that an impartial expert is in the best position to make custody recommendations to the court. He asserts that professionals should never allow themselves to be used as adversaries. He believes that attorneys can serve as mediators in divorce conflicts.
"I believe that discouraging attorneys from mediating and arbitrating matrimonial matters has less to do with fear of loss of objectivity than with their fear of loss of money and/or reputation of being a Twinner.1 Arbitration requires only one lawyer, litigation two. Arbitration may be a short proceeding, whereas adversary litigation is more predictably drawn out and very expensive. Accordingly, .. this traditional way of handling matrimonial disputes dies hard."24
In like manner, Goldzband criticizes the adversary system in this context as ill-suited.
"Every child is entitled to live with the fantasy, if not the fact, that his or her mother and father each are persons to he respected and loved. Children need never think that the parent with whom they lived was chosen because the other parent is bad or unfit."25
The author stresses the abandonment of the adversary courtroom approach to the consideration and resolution of custody and visitation matters.
Dembitz in "Beyond Any Discipline's
Competence"26 defends the adversary system for establishing
the facts of the case, but she also suggests that the ultimate decision
might be made by a panel of experts.
Judge Berdon in addressing a child's rights to counsel in a contested custody proceeding,27 on the other hand, addresses the issue of legal representation of the child.
"In all contested custody proceedings there is a need for independent representation of the child. We cannot safeguard the child's best interests with any reasonable degree of certainty by solely relying upon the judge, the hostile parents or their attorneys, or the family relations officer's report ... but it should be pointed out that this need for representation occurs only where there is a conflict between the parents or between parents and the child, or when evidence comes to the attention of the court which would indicate child neglect or other similar reason."28He emphasizes that the attorney for the child should make every effort at conciliation, making use of the aid of other professionals, such as family counselors and social workers. However, he also stresses that the child's legal counsel "should on behalf of his client have standing to appeal any decision of the trial court he deems not to be in the client's best interests."29
A discussion of homosexuality as it
affects child custody deliberations warrants an effort to establish a perspective
regarding the prevalence of the problem, as well as regarding societal
and psychologic considerations which generally form the bedrock of judicial
opinion and decision-making. It has been estimated that there are
approximately eleven million lesbians in America, one out of every ten
women. Recent estimates also suggest that there are well over 1.5
million lesbian mothers in this country.30 Despite this high
prevalence and a probably higher prevalence of male homosexuality in society,
basic and contemporary understanding of the nature of this phenomenon can
be characterized at best as in flux and at worst as confused.
"Sociobiologists do not have an 'official
line' on homosexuality nor at this stage is such position even to be desired."31
Four possible explanations
for homosexuality are reviewed, including a discussion of older biologic theories, finding in human organisms a "sort of reproductive imperative" including postulating "homosexual genes." other hypotheses include parental manipulation, kin selection and the hypothesis that homosexuality is a by-product of or is incidental to normal heterosexual development. No conclusion is reached from among the various proposed possibilities. This position is echoed by another contributor to this series of lectures, Don P. Dececco, Ph.D.: "Sexual orientation is one of the few areas of human behavior in which biology is not destiny."32 In another treatise on the subject by Albert Ellis, Ph.D., the author notes that
"Although the early experts considered homosexuality fundamentally an inborn constitutional proclivity, the opposing view of the psychoanalytic schools that homophilism is largely an early acquired sexual anomaly and that despite the stubborn resistance to change among some homosexuals, their sex proclivity sometimes can be definitely changed in the direction of heterosexual interests and activities has fairly well conquered the field of psychiatric thinking and is subscribed to by the great majority of psychotherapists."33Thus, psychological and environmental influences are now stressed rather than constitutional, genetic or hormonal influences.
Similarly, Richard Green, M.D. in reviewing
psychologic theories of homosexuality notes that the writing of Sigmund
Freud reflected "training in biology and his knowledge that before birth
all mammals have primordially male and female anatomic structure ... led
him to postulate a similar psychic bisexuality."34 The author
distinguishes this approach from that of developmental psychologists, who
view the problem in terms of learning theory. "They propose that
the child learns to be a boy or a girl by the manner in which it is treated
by its parents. While analytic theory does.not deny the importance
of parents/child relationship or the relevance of parental expectations,
it gives more emphasis to positive early instinctual drives."35
Regarding the psychodynamics of homosexuality,
Judd Marmor in a treatise included in the final report of the National
Institute of Mental Health Task Force on Homosexuality questioned efforts
to treat homosexuality as a unitary concept. "Clinical evidence and
observations suggest that it is not possible to delineate any psychodynamic
pattern that will fit most homosexuals. There is as wide a spectrum
of variation among homosexual personalities as there is among heterosexuals
and their psychiatric diagnoses apart from the homosexual pattern run the
entire gamut of modern nosology."36
Differences in the range of opinions
regarding the effect of family structure on homosexuality and vice versa
are even more broad than with regard to the issue of homosexuality per
se. At one end of the spectrum is the opinion of Dr. Alexandria Kaplan,
a clinical psychologist, and professor of psychology at the University
of Massachusetts, who testified in the case Bezio v. Patenaude37
as follows: "There is no evidence at all that sexual preference of adults
in the home has any detrimental impact on children ... Many other issues
influence child rearing. Sexual preference per se is typically not
one of them." On further questioning regarding whether a homosexual relationship
would in any way influence a child to be a homosexual, the doctor stated
that "quite to the contrary, most children raised in homosexual situations
become heterosexual as adults. There is no evidence that children
who are raised with a loving couple of the same sex are any more disturbed,
unhealthy, maladjusted than children raised with a loving couple of mixed
sex. Sexual orientation of the parent is irrelevant to the child's
mental health." Another psychologist in the case concurred with Dr. Kaplan's
At the other end of the spectrum is the position articulated by Peter and Barbara Wyden.38 These authors emphasize the importance of both parents in a culture where
"More and more it is becoming customary for mothers to raise the children while fathers fade into the background to act as preoccupied and distant chairmen of the board. Whatever their other differences, experts do agree that the role of fathers is one of the principal problems - possibly even the No. 1 problem - in homosexuality; that mothers have perhaps been blamed too much over the years; that the significance of fathers, in the making of male as well as female homosexuality has been inadequately recognized and that parents should develop a better understanding of why this is a critical factor."39The authors continued, "in fact, there now exists persuasive evidence that the seed bed for much homosexuality is readied by many parents quite unknowingly, possibly even before the child is three."40 The authors referred to a nine-year study of 106 male homosexuals undergoing psychoanalysis, compared with results of 100 heterosexuals who were also in analysis. The study is reported by Beeber4l and refers to a similar study by Dr. Harvey Kaye on female homosexuality. With regard to both studies the authors stated "both teams discovered that profoundly disturbed parent relationships were universal among homosexual parents who were studied."
An intermediate position regarding
the interrelationship between homosexuality and family structure is expressed
by Evelyn Hooker. "The evidence from these and many similar studies
does not support the assumption that pathological parent-child relations
are either necessary or sufficient antecedents or determinants
for adult homosexuality. The evidence does indicate, however, that some forms of familial pathology appear to be associated with increased vulnerability of some individuals to homosexual development."42
With regard to the particular question
of effects of divorce on the development of homosexuality in children,
those effects are considered by Wyden to be always "disorganizing," but
divorce by itself is held not to be homosexualityinducing.38
three of the 106 homosexual study subjects reported by Dr. Beeber had come
f;om broken homes. Furthermore, Dr. Hooker also is quoted as having
noted no spectacular number of homosexuals whose parents were divorced.
"Tf a divorce results in a total absence of a male figure in a boy's life
and this undesirable situation is reinforced by an unhealthy intimate relationship
between mother and son, then the son's vulnerability can greatly increase."43
However, a boy needs not necessarily a father, but a father-figure.
Into this realm and within the framework
of these disparate observations and positions, statutory and particularly
case law have struggled to establish a rational approach regarding the
matter of child custody which would in any event effect the "best interests
of the child" criterion. The Uniform Marriage and Divorce Act, Section
201, provides that "a marriage between a man and a woman, licensed, solemnized,
and registered as provided in this act is valid in this state" and requires
information, including the sex of each of the parties to the proposed marriage.
The relevant Connecticut statute, however, does not make reference to the
sex of the participants.44 In the special instances wherein
both parties are homosexual, with or without the involvement of children
by prior marriages, and where the two homosexuals seek to enter into a
legal marriage, the legality of the homosexual marriage becomes a separate
and threshold issue. An important case is Baker v. Nelson45
and its progeny. The applicants for the marriage license were of
the same sex. They were denied a marriage license and their appeal
was subsequently dismissed by the U. S. Supreme Court, which held that
such marriages are prohibited and that the applicable statute does not
offend the First, Eighth, Ninth or Fourteenth Amendments to the U. S. Constitution.
The court found no irrational or invidious discrimination in a position
precluding marriage between persons of the same sex. The effect of
that dismissal was explained by the Supreme Court in another case, Hicks
v. Miranda,46 an explanation which made it clear that the
dismissal was a holding, that the constitutional challenge had been considered
by the Supreme Court and was rejected as insubstantial. Thus, that
holding of insubstantiality continues to be binding on lower courts.
The more common problem involves the
situation where one of the parents in a marital dissolution is or becomes
homosexual. The Uniform Marriage and Divorce Act, Section 402, as
quoted above8 states inter alia "the court shall not
consider conduct of the proposed custodian that does not affect his relationship
to the child." In the comments following the statutory provisions we learn
that "the last sentence of the section changes the law in those states
which continue to use fault notions in custody adjudication. There
is no reason to encourage parties to spy on each other in order to discover
marital (more commonly sexual) misconduct for use in a custody contest.
This provision makes it clear that unless a contestant is able to prove
that the parent's behavior in fact affects his relationship with the child,
a standard which could seldom be met if the parent's behavior has been
circumspect or unknown to the child, evidence of such behavior is irrelevant."47
The Uniform Child Custody Jurisdiction Act which has been adopted in at
least 45 states provides a mechanism for integrating the involvement of
various state courts in a child custody proceeding, a situation of considerable
practical significance in a highly mobile American society.
Of considerable potential interest
in this area is the impact of the proposed Equal Rights Amendment, which
states: "Equality of rights under law shall not be denied or abridged by
the United States or by any states on account of sex." The chief sponsor
of that proposed 27th Amendment to the United States Constitution, Senator
Birch Bayh, had rejected the interpretation that passage of the amendment
would legalize homosexual marriages. However, pointed opinion to the contrary is
in a treatise on the legality of homosexual marriage. 48
The development of case law in this
area is highly relevant and instructive, given the circumspect approach
taken in statutory law. A number of these cases
are reviewed in "Homosexual Relations, Custody Modified or Not Modified."49 In one case50 the court held that constitutional protection did not extend to "imposing a lesbian lifestyle on an infant child." "In other cases the custodial parent's actual or alleged homosexual relationship has been held not to warrant a change in the custody where no harm to the child was shown or where a change in custody was considered to involve a greater likelihood of harm to them."51 in one instructive52 case, Ashling and Ashling,52 the appellate court found that the trial court had imposed too severe a restriction on visitation rights of the lesbian mother. The court found that, although the mother is a lesbian and the children were aware of her sexual preference, "so long as the mother's sexual preferences remain discreet her requirement, whatever the sexual preferences of the parties may be - see Niedert and Niedert, 28 Oregon Appellate 309, 555, P. 2d 515 (1977) - and the presence of lesbians in the home from time to time does not of itself create difficulties for the children of a greater magnitude than that suggested by this record; the restriction is inappropriate." In Bezio v. Patanaud37 the Supreme Judicial Court of Massachusetts held that the lower court's finding that a lesbian relationship of the mother created instability that would adversely affect the welfare of children was insufficient to support the conclusion that custody should remain under a guardian. The court stated "the state may not deprive parents of custody of their children simply because their households fail to meet the ideals approved by the community or simply because the parents embrace ideology or pursue lifestyles at odds with the average."
In Chaffin v. Frye, however, the California Court of Appeals awarded custody of a lesbian mother's children to their maternal grandparent. The avowed homosexuality of the mother was a major factor in the decision of the court adverse to the mother. The court referred to the provision of the California Penal Code applicable to homosexual acts and noted that "while it is conceded that penal sanctions are rarely enforced, the court was of the opinion that the presence of criminal sanctions demonstrated that society collectively disapproves the notion that children might grow up in an environment in which homosexuality is the norm."54
In the same source54 an
unusual case is reported, although not cited, which awarded custody to
a deceased mother's lesbian lover in preference to the child's maternal
aunt. "The court found that the lover who had had a long-term relationship
with the child's mother had occupied the role of secondary parent to the
child, and the court held that the dead mother's lover offered the child
more stability than did the aunt whom the record showed to have marital
problems and psychological difficulties." Two very recent cases occurred
in the Supreme Court of Oklahoma which in early 1982 addressed an issue
of first impression.55 The mother had appealed from an order
of the district court which modified the custody of the child in favor
of the father. The court found that the mother had an acknowledged
open homosexual relationship which was a sufficient change in circumstances
to warrant modification of the child custody order in favor of the father.
Thus the lower court was affirmed. The court had found that the mother
lived with the two-yearold child in question and with her female lover
and the lover's twelve-year-old son. The two women had invited 40
friends to a "gay-la" wedding in a church performed by a minister.
The court found that the two-year-old slept in the same room with the mother
and her lover, although her bed was screened from that of the adults.
The mother had, according to the court, advised her child that there was
nothing immoral regarding two women or two men living together. Of
further interest is the fact that the same Oklahoma Supreme Court in a
ruling handed down within the last month ordered a lower court judge to
award custody of twin boys to their homosexual father, holding that his
sexual preference does not prevent him from being a good parent.
The ruling held that the father had been discreet about his lifestyle;
thus custody of the eleven-year-old boys was removed from the care of grandparents
with whom the boys had been living since 1977.56
The development of case law in the
area of the transsexual parent or guardian further reflects the courts'
effort to implement the "best interests of the child" criteria. A
Law Review article by Edward David on this subject is instructive.57
"The threshold question is whether transsexuals are by definition unfit
parents. There is no categorical reason to classify them as unfit,
yet one hesitates to predict what courts will do."57a In Christian
v. Randall58 a 38-year-old female-to-male transsexual was
the natural mother of four minor daughters. Upon her divorce in 1964
custody of the children was awarded to her, prior to the sex change.
She then underwent the change and married a woman who was the natural mother
of a teenage boy. The transsexual's former husband petitioned the
court for custody of the girls and this was granted. However, the
appellate court ordered the custody to remain with the natural mother,
now a limale." The court noted that modification would be made to protect
the best interests of the child where a change in the circumstances of
the child or custodian relevant to those interests had taken place.
The court noted that it could not consider conduct of a proposed custodian
that does not affect his relationship with the child. The court found
the high quality of environment and home life of the original mother and
children and that the children were happy and well adjusted.
It should be emphasized here that notwithstanding
the special problems presented by the involvement of homosexual or transsexual
parents, the basic rule regarding modification or change in a child custody
decree continues to be a substantial change of circumstances affecting
the best interests of the child. The courts continue to stress and
to adhere to that principle, placing the burden of proof on the party seeking
a modification.59, 60, 61, 62
The issues discussed above are but part of a much broader context of legal concern. This is well articulated in an article by Wilkinson and White entitled, Constitutional Protection for Personal Lifestyle.63 "Personal taste, preferences, impulses and expressions appear to be candidates for a new constitutional protection. No recent constitutional trend, in fact, seems more significant... Perhaps the new trend portends a fundamental shift in values: The emergence of the national ethic that in matters of style and morality personal choice is paramount."64 The article reviews case law regarding domestic companionship, personal sexual conduct and personal appearance, and constitutional protection for personal lifestyle. The article ends with a balancing caveat.
"Our plea finally is for a balanced and sensitive approach to the central dilemma examined in this article...Definite accommodation must be reached with the rights of dissident members, but not so complete an accommodation as to leave the conventional social fabric without legal support. We must be wary to creating in the high name of constitutional right nothing more than a regime of self-gratification and indulgence. Equally distressing, however, would be an orthodoxy so pervasive that personal creativity, expression and realization would be stifled and denied. The Constitution must remain a charter of tolerance without becoming an instrument of social dissolution. There will be no more difficult task."65
Thus, two competing themes are reflected in the body of law relating to child custody and the homosexual adult: The integrity of the fabric of society as embodied in its future generation of adults; and tolerance for variant personal lifestyles. Statutory law is generally circumspect on this issue, leaving specific determinations to a case-by-case analysis,although always consistent with the best interests of the child. The desired environment is always a stable, loving, supportive and accepting one involving both parents. In the presence of divorce those same attributes of family surroundings are as important, or more important, together with the continued presence of either the father or an effective fatherfigure. Since our society continues to regard deviations from heterosexual behavior as maladaptive behavior, heterosexual development is certainly to be preferred and thus the example of the surroundings must be consistent with that goal. That expression of public policy, however, does not preclude the awarding of custody to a homosexual parent or guardian where that person is discreet in his lifestyle and thereby does not undermine the public policy in the perception of the child regarding strong societal preference for heterosexuality. Final decisions should be left ultimately to the common sense of the judge, armed with his personal evaluation of the parents and of their relationship with the child, and armed further with expert evaluation. Given the state of current professional development in this field, such expert opinions should not be controlling, but should be subservient to the best expression of the collective wisdom of the people, as embodied in the common law.
1. Goldzband, Melvin G., Consulting in Child Custody, Lexington Books, (copyright 1982) by D. C. Eleath and Co.
2. Id. at 4.
3. Goldstein, Freud and Solnit, Before the Best Interests of the Child, The Free Press, (copyright 1979).
4. Moore v. City of Cleveland, 431 ii.S. 494 (1977).
5. Black's Law Dictionary, 5th Edition, West Publishing Company (1979).
6. Finley v. Finley, 1921, 240 N.Y. 429, at 433, 148 N.E. 624.
7. Id. at 626.
8. Uniform Marriage and Divorce Act (1970).
9. Simons v. Simons, 374 A. 2d 1040, 172 Conn. 341. See also Stanfield v. Stanfield, 435 S.W. 2d. 690 (1968) and L.D.H. v. T.P.H., 492 S.W. 2d. 857, and Van Patton v. Van Patton, 404 A. 2d. 879, 176, Conn. 29 (1978).
10. Morrill v. Morrill, 77 A. 1, 83 Conn. 479. and Trunik v. Trunik, 426 A. 2d 274, 179 Conn. 287 (1979), and Stewart v. Stewart, 418 A. 2d 62, 177 Conn. 401.(1979).
11. Raymond v. Ravmond, 345 A. 2d 48, 165 Conn. 735.
13. Dunham v. Dunham, 117 A. 504, 97 Conn. 440.
14. Joy v. Joy, 423 A. 2d 895, 178 Conn. 254, followed in 181 Conn. 227.
15. Sullivan v. Sullivan, 104 A. 2d 898, 141 Conn. 235, followed in 177 Conn. 3407.
16. Palmieri v. Palmieri, 370 A. 2d 926, followed in Yontif v. Yontif, 43 Conn. L.J. #6-5 (8/11/81). See also The Law and the Problem Parent: Custody and Parental Rights of Homosexual, Mentally Retarded, Mentally Ill and Incarcerated Parents, 16 J. Family Law 797 (Aug. 1978) at 797.
17. Seymour v. Seymour, 433 A. 2d 1005, 180 Conn. 705.
18. Bozzi v. Bozzi, 413 A. 2d 834, 177 Conn. 232.
19. Balbirer and McLachlan, 56 Connecticut Bar J. at 26-65.
20. Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, The Free Press, N.Y. (1973, 1979).
21. Goldstein, Freud and Solnit, Before the Best Interests of the Child, The Free Press (copyright 1979).
22. Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, The Free Press, N.Y. (1973, 1979) at 111.
23. Gardner, Richard A., Evaluation in Child Custody Litigation, Therapeutics, P.O. Box R, Cresskill, N.J. (copyright 1982).
24. Id. at 279.
25. Goldzband, Melvin G., Consulting in Child Custody, Lexington Books (copyright 1982) by D. C. Heath and Co. at 12.
26. Dembitz, Beyond Any Discipline's Competence, Yale Law J. 83 (1974) at 1304-1313.
27. Berdon, Robert I., A Child's Right to Counsel in a Contested Custody Proceeding Resulting From a Termination of the Marriage, 50 Conn. Bar J. 150.
28. Id. at 159-160.
29. Id. at 166-7.
30. Hunter, Nan D. and Polikoff, Nancy D., Custody Rights of Lesbian Mothers: Legal Theory and Litigation Strategy, 25 Buffalo Law Review 691 (Spring 1-976).
31. Nature and Courses of Homosexuality- A Philosophic and Scientific Inguiry, Edited bv Noretta Koertge, Ph.D., J. of Homosexuality, Vol. 6, No. 4 (Summer 1981)
32. Id. at 64.
33. Ellis, Albert, Ph.D., Homosexuality, Its Causes and Cure, Lyle Stewart, Inc., N.Y., (1965) at 21-22.
34. Green, Richard, M.D., Sexual Identity Conflict in Children and Adults, Penguin Books, Inc., Baltimore Maryland, (1974) at 18.
35. Id. at 22.
36. National Institute of Mental Health Task Fcrce on Homosexuality - Final Report and Background Papers, Edited by John M. Livingood, M.D., DHEW Publication # (HSM) 72-9116 (pri@ted 1972) at 56.
37. Bezio v. Patenaude, Mass. 410, N.E. 2d 1207 (1980) at 1215.
38. Wyden, Peter and Barbara, Growing Lp Straight - What Every Thoughtful Parent Should Know About Homosexuality, Stein and Day, N.Y. (1968).
39. Id. at 15.
40. Id. at 18-19.
41. Beeber, A Psychoanalytic Studv of male Homosexuals, Published in Homosexuality, Basic Books, Inc. (1962).
42. National Institute of Mental Health Task Force on Homosexuality - Final Report and Background Papers, Edited by John M, Livingood, M.D., Selection - Homosexuality, by Evelvn Hooker, DHEW Publication No. (HSM) 72-9116 (printed 1972) at 13.
43. Wyden, Peter and Barbara, Growing Up Straight - What Every Thoughtful Parent Should Know About Homosexuality, Stein and Day, N.Y. (1968) at 143.
44. Connecticut General Statutes, Revised, Section 46-5b (1973).
45. Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185, Minn. Sup. Ct. 1971, Appeal dismissed 41 U.S. L.W. 3167 U.S. (October 10, 1972). See also Hatcher v. Hatcher, 580 S.W. 2d 475 (1979), appeal dismissed 409 I/S/ 810, 93 S. Ct. 37, 346 L.- Ed. 2d 65.
46. Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281, 2289, 34 Law Ed. 2d 223, (1975).
47. Family Law Quarterly, Vol. 5, No. 2 (June 1971), Uniform Marriage and Divorce Act Reports and Recommendations, at 242.
48. The Legality of Homosexual Marriage, 82 Yale Law Journal, at 573-589
49. Homosexual Relations,, Custody modified or Not Modified, 100 A.L.R. 3d 680. See also Initial Award or Denial of Child Custody to Homosexual or Lesbian Parent, Wanda Ellen Wakefield, J.D., 6 A.L.R. 4th 1297.
50. In re B., 380 N.Y. Supp. 2d 848.
51. Homosexual Relations, Custody Modified or Not Modified, 100 A.F.R. 3d at 686.
52. Ashling v. Ashling, Oregon Appellate 599 P. 2d 475 (1979).
53. Chaffin v. Frye, Family Law Reporter (BNA) 2308 Calif. Ct. of Appeals (1975).
54. The Law and the Problem Parent: Custody and Parental Rights of Homosexual, mentally Retarded, Mentally Ill and Incarcerated Parents, 16 J. of Family Law 797, (Aug. 1978) at 800.
55. M.V.P. v. J.G.P., Okla 640 P 2d 966.
56. Article, The Day New London (September 1982)
57. The Law and Transsexualism: A Faltering Response to a Conceptual Dilemma, by Edward S. David, 7 Conn. Law Review 288 to 345.
57a. Id. at 325.
58. Christian v. Randall, 516 P. 2d 182, Colo. Ct. Appellate (1973).
59. Beck v. Beck, 432 A. 2d 63 at 70, 86 N.J. 480 (1981) Supreme Ct. of N.J.
60. Mastropole v. Mastropole, 181 N.J. Super. 130, 436 A. 2d 955 at 958, Super. Ct. of N.J. (1981)
61. Yeamans v. Yeamans, Or. Appellate 423 P. 2d 565 (1974).
62. In the matter of "D", or. Appellate 547, P. 2d 175 (1976)
63. Constitutional ProtoCtion for Personal Lifestyle, J - Harvie Wilkinson, III and G. Edward White, 62 Cornell Law Review 563 (1977).
64. Id. at 563.
65. Id. at 624-625.