Does sexual orientation of the parent affect child custody?
There are no easy answers when it comes to child custody issues. The matter gets even more complicated when one parent is homosexual.
Awarding Child Custody to Gay and Lesbian Parents
Besides being satisfied that the gay/lesbian parent is capable of taking care of the child in a manner the child is accustomed to, the court considers other special factors while awarding child custody to gay/lesbian parents. Such factors include the lifestyle of the parent (having one or more lovers), the presence of sexually explicit material at home, whether the partners live together and whether the homosexual partner of the parent will interact with the child and to what extent.
Please note that North Carolina law does not recognize same-sex marriages or legalize any same sex union. This means that in case the parent (seeking custody) is living with his/her partner, it exposes the child to an environment of ‘sexual conduct between unmarried persons’ (even if it is behind closed doors). In Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), the North Carolina Supreme Court held that the homosexual parent is entitled to the same consideration as the heterosexual parent in decisions on custody and visitation. A parent’s homosexuality by itself should not be an issue unless it can be demonstrated that the child will be adversely affected if left in the custody or care of the homosexual parent. However, in Pulliam the N.C. Supreme Court seized on the fact that the homosexual parent was not married to his life partner in deciding to remove the child from the home. The court also noted that there were pictures of drag queens in the house and found these to be “admittedly improper sexual material in the home.”
Other North Carolina appellate cases dealing with homosexuality and child custody include Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973); Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849 (1979); and Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775 (1979).
The court may take the view that above factors may cause emotional issues in children and decide to award custody to the non-homosexual parent.
Seeking Custody Modification
If you are the non-custodial parent and have recently become aware of the homosexual nature of your ex-spouse (who has custody of the child/ children), you can file a petition to seek custody modification. You need to show why you feel the newly revealed sexual orientation of your ex-spouse can affect the children.
Seek Legal Advice
The fact is your parental love and affection is independent of your sexual orientation as is the emotional benefit the child receives from interacting with both parents. However, you may need to make certain compromises (like not living with your partner or moderating your lifestyle) to obtain child custody. We at McIlveen Family Law Firm will advise you on the course of action to pursue so that you get the best outcome possible.
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