Child Custody And Visitation Arising From Same-Sex Relationships
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What Effect Does a Parent's Sexual Orientation Have on Child Custody?
Child custody is generally determined by the best interests of the child, not the sexuality of the parents. Therefore, the fact that one or both parents is homosexual is not a per se bar to custody because they are unfit for custody.
However, a homosexual parent with joint custody who openly resides with their same-sex partner will rarely be entitled to primary custody. The sexual orientation of a parent may be a factor used by a court in determining custody but is not dispositive unless it effects the best interests of the child. Additionally, the childs preference is a factor in the decision but is not controlling.
To modify an existing custody order, the court must find a substantial change in circumstances which effects the welfare of the child, making modification of the order in the best interests of the child.
What Effect Does a Parent's Sexual Orientation Have on Visitation Rights?
Visitation cannot be used to penalize or reward a parent's conduct. In visitation disputes, courts generally have two theories:
- The first theory is that harm to the child is assumed from exposure to the non-custodial parents homosexual conduct. This justifies a restriction on visitation to insulate the child from harm.
- The second theory is that the custodial parent must prove actual harm to the child to get a restriction on visitation rights.
State law has been slow to recognize the development of homosexual parents, therefore court decisions are split between the two theories.
Should I Contact an Attorney?
There are many complex and emotional issues in determining custody and visitation rights. An experienced family law attorney can help defend your interests and fight for your rights.
Consult a Lawyer - Present Your Case Now!
Last Modified: 06-06-2014 04:09 PM PDT
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