Homosexuality Not Per Se Bar to Custody

The Tennessee Court of Appeals recently held that "[h]omosexuality is not a per se bar to custody," and that the effect on a child of a custodial parent's homosexuality is not a proper subject of judicial notice. Berry v. Berry, No. E2004-01832-COA-R3-CV (Tenn. Ct. App., May 31, 2005).

The trial court had granted a change in custody to the father in part because of the "changed circumstance" that the mother was leading an openly gay lifestyle. The court found that the couple's child was doing well in school and was generally well-adjusted. But the court also found that as the child grew older, his mother's sexual orientation would cause him problems.

The Court of Appeals focused on a lack of evidence supporting this conclusion (including a concurring opinion written for the sole purpose of emphasizing the importance of the absence of evidence). And the court cited a wide range of authority in support of its conclusion that a parent's homosexuality is relevant only to the extent that it has an actual negative effect on the child's welfare:

In re Parsons, 914 S.W.2d 889, 894 (Tenn. Ct. App. 1995); H.J.B. v. P.W., 628 So.2d 753 (Ala. Civ. App. 1993); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Taylor v. Taylor, 110 S.W.2d 731 (Ark. 2003); Downey v. Muffley, 767 N.E.2d 1014 (Ind. Ct. App. 2002); Lundin v. Lundin, 563 So. 2d 1273 (La. Ct. App. 1990); Bezio v. Patenaude, 410 N.E.2d 1207 (Mass. 1980); Hollon v. Hollon, 784 So. 2d 943, 949 (Miss. 2001); Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997); M.P. v. S.P., 404 A.2d 1256 (N.J. Super. Ct. App. Div. 1979); Guinan v. Guinan, 477 N.Y.S. 2d 830 (1984); Conkel v. Conkel, 509 N. E. 2d 983 (Ohio Ct. App. 1987); Stroman v. Williams, 353 S.E. 2d 704 (S.C. Ct. App. 1987); Van Driel v. Van Driel, 525 N.W. 2d 37 (S.D. 1994); In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983), later appeal, 718 P.2d 7 (Wash. Ct. App. 1986); Bruce Gill, Best Interest of the Child? A Critique of Judicially Sanctioned Arguments Denying Child Custody to Gays and Lesbians, 68 Tenn. L. Rev. 361 (2001); Christopher Carnahan, Inscribing Lesbian and Gay Identities: How Judicial Imaginations Intertwine with the Best Interests of Children, 11 Cardozo Women’s L. J. 1 (2004); Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 Ind. L.J. 623 (1986).