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THE ROLE OF SEXUAL ORIENTATION
IN CHILD CUSTODY CASES
Russell I. Marnell
Scott R. Schwartz
Nassau Lawyer
May 2008
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It is well established that a parent’s extramarital affair, infidelity
or sexual indiscretions should only be a consideration in a custody dispute
if it can be established that such indiscretions are contrary to the best interests
of the children and that the child or children have been adversely affected.
[i] Even with respect to heterosexual relationships, Courts have established
that a custodial parent always retains the risk of losing custody in the future
if his or her lifestyle does not coincide with the children’s best interests.
[ii]
However, is the result the same if the sexual misconduct or extramarital
affair involves homosexuality rather than a heterosexual extramarital affair?
This article will explore how Courts of this state treat homosexual and lesbian
behavior in the context of custody disputes and other areas of family law,
and whether or not the bias that some individuals espouse against homosexuals
in the context of legalizing gay marriage or increasing legal protections to
homosexuals is prevalent in this area as well. Thus, while homosexuals are
often treated differently and perhaps unfairly in many areas of the law as
well as in society, are custody and adoption issues immune from such prejudice?
When a man or woman has engaged in an adulterous affair with an individual
of the opposite sex, the law is straight forward and unambiguous in determining
that such behavior will not be relevant unless such actions have negatively
impacted the children’s best interests.[iii] Thus, in one case, the Appellate
Division, Second Department reversed the trial court’s award of custody
to the Wife where she acknowledged having carried on a secret affair of over
one year’s duration and that she would invite her paramour to spend time
at the marital residence with the children present while her husband was away.[iv]
On at least one occasion, the wife engaged in sexual relations with her paramour
in the marital bedroom and the children told their father that they could hear
their mother and the paramour through the walls.[v] In reversing the lower
Court’s custody award in favor of the mother, the Second Department ruled
that such conduct by the Wife poses a danger to the welfare of the children
and clearly indicates an inclination on the part of the Wife to subordinate
the needs of the children to her own.[vi]
An act of adultery between two individuals
of the opposite sex will not, in and of itself, be grounds to deny the guilty
spouse an award of custody where
such sexual indiscretion did not negatively impact the children, and the children’s
best interests under the totality of circumstances warrants an award of custody
in favor of that parent.[vii]
Should the results change if the extramarital
sexual activity involves individuals of the same sex?
Until fairly recently,
Courts appeared to have treated custody cases involving lesbians and homosexuals
much harsher as compared with adulterous affairs involving
heterosexual individuals.
Thus, in one case from 1976, a New York Supreme Court
justice denied custody to a lesbian woman on the grounds that the Court would
not permit her to impose
her lesbian lifestyle on her child who the court considered to be a ward of
the Court.[viii] In reaching its conclusion, the Court called the mother’s
lesbian lifestyle “clandestine deviate conduct”.[ix] The Court
went on to state that the homosexual relationship carried on by the mother
in the apartment where the child resides creates an improper environment for
the child and that the child was emotionally disturbed by virtue of this environment.[x]
In awarding custody of the child to the father, the court imposed restrictions
on the mother’s visitation with the child such that the mother’s
girlfriend could not be present during visitation periods, no homosexuals were
allowed to be present at the mother’s home during visitation periods,
the child could not be taken to any other place where known homosexuals were
present and the mother was prohibited from involving the child in any homosexual
activities or publicity.[xi] Thus, this particular Court apparently subscribed
to the theory that a homosexual parent would naturally attempt to teach their
children to be homosexuals.
In another case from the late 1970's, the Appellate
Division ruled that an otherwise fit mother would not be awarded custody as
a result of her homosexuality.[xii]
In so ruling, the Court determined that the sexual life style of a parent may
be properly considered in determining what is in the best interests of their
children, and that in that instance, the mother had failed to keep her lesbian
relationship separate from her role as the children’s mother.[xiii] The
Court also stated its opinion that it was an error for the lower Court to have
not restricted “the mother’s preferred sexual activity, although
deviate sexual intercourse remains a crime in this state.”[xiv] Although
the Court went out of its way to praise the Wife as an otherwise fit parent,
the Court placed a restriction on the Wife’s visitation rights with the
children in that her lesbian girlfriend was not permitted to have contact with
the wife or children during visitation periods.[xv]
Courts have also imposed
restrictions on custodial and non - custodial parents when one of them is involved
in homosexual activity.[xvi] For example, the
4th Department has held that it is reasonable and acceptable to impose conditions
upon a bi - sexual woman’s maintenance of custody over the child such
as prohibiting the child’s presence during, or involvement with homosexual
contact or conduct.[xvii] The First Department has also imposed restrictions
on the visitation rights of a homosexual father such that the child would not
be involved in any homosexual activities or publicity during the father’s
visitation.[xviii]
Curiously, courts do not seem as inclined to impose such
conditions on a custodial parent who engaged in an adulterous affair with an
individual of the opposite
sex. In such cases, the Courts seem willing to let common sense prevail such
that custodial parents do not need to be warned, and their custody need not
be conditioned such that they cannot engage in sexual activity in the presence
of their children. The same logic should apply in cases of homosexual parents
as well. Therefore, if a homosexual parent is found to be fit by the Court
to act as a child’s custodial parent, isn’t that sufficient such
that it can be presumed that the parent would not exercise poor judgment, and
that they would not engage in homosexual activities in the presence of their
children? Furthermore, were they to engage in such improper activities, it
would likely constitute grounds to modify the current custodial arrangement.
Essentially, once a court determines that it is in a child’s best interests
for a parent, heterosexual or homosexual to be awarded custody, there is no
reason to impose conditions on such custody given that the custodial parent’s
sound judgment should be presumed, and should it subsequently falter, the non
- custodial parent would retain the right to seek a modification.
Even though
these earlier cases seemed to adhere to the standard that sexual indiscretions
in and of themselves should not be the basis for a custody determination
so long as the child’s best interests were not adversely affected, the
fact that one of the parents was a homosexual appears to have been sufficient,
in and of itself, for the court to find an adverse impact on the child.
More
recent cases have relaxed their attitudes towards homosexuality and have been
more willing to award custody to homosexual parents. In so doing, such
courts have been less willing to determine that a parent’s homosexuality
without more constitutes a negative impact on a child’s best interests.
Thus, the fact that a parent happens to be homosexual no longer seems to be
grounds for losing a custody dispute unless, like the case of a heterosexual
couple, the extramarital relationship adversely affects the children.[xix]
In addition, visitation has not been denied solely on the basis of homosexuality
which was deemed irrelevant.[xx] Courts have therefore been more willing to
determine that the mere fact that a parent is a homosexual does not alone render
him or her unfit as a parent.[xxi]
This relaxed attitude towards lesbian and
homosexual parents has also been extended to the area of adoptions wherein
lesbian and homosexual partners have
been permitted to adopt children without restriction solely based upon their
sexual proclivity.[xxii] The New York Court of Appeals has established that
the homosexual partner of a child’s biological mother is an adult unmarried
person with standing to adopt under New York’s adoption statute.[xxiii]
The final inconsistency in the law between heterosexuals and homosexuals concerns
the issue of equitable estoppel.
Pursuant to the doctrine of equitable estoppel,
an individual who acted as a child’s parent, believed he or she was the
child’s natural parent,
held him or herself out as the child’s parent and in essence established
a significant relationship with the child is precluded from contesting a prior
order of filiation or challenging whether or not he or she is truly the child’s
natural parent. This is the case even if it is ultimately definitively determined
that the individual is not actually the parent.[xxiv] In essence, under the
doctrine of equitable estoppel, a person who does not want to continue acting
as a child’s parent and/or no longer wishes to support the child financially
is given no choice by the Court and is precluded from terminating his or her
role as the child’s parent. In a case from 2005, the Court applied equitable
estoppel to preclude a father from vacating a prior acknowledgment of paternity
where the father had exercised frequent visitation with the child, had overnight
visits on weekends, spent holidays with the child and bought her gifts.[xxv]
In a separate matter, the Appellate Division, Second Department applied equitable
estoppel where the father mistakenly believed he was the child’s father,
freely supported the child and was essentially the only father known to the
child for a ten year period.[xxvi]
On the other hand, the New York Court of
Appeals in a case known as Alison D.
V. Virginia M., has held that a lesbian woman who had a live in relationship
with another woman wherein the two women agreed that one of them would have a
child biologically and that the two would subsequently raise the child together,
lacked standing to seek visitation with the child once the couple terminated
their relationship.[xxvii] In Alison D. V. Virginia M., the woman agreed with
her girlfriend that the girlfriend would be artificially inseminated and the
two women would jointly raise the child.[xxviii] A son was ultimately born and
he took the birth mother’s last name as his last name and although the
other woman did not adopt the child, he took her last name as his middle name.[xxix]
The two women jointly made decisions regarding the child and financially supported
the child together, residing in a home owned jointly by the two women.[xxx] The
child referred to both women as mommy.[xxxi] The couple ultimately terminated
their relationship when their son was two years and four months old.[xxxii] Despite
breaking up, the women devised a visitation schedule whereby the non- biological
mother continued to see the child a few times each week and continued to pay
fifty percent of the mortgage and other household expenses.[xxxiii] When the
child was approximately five years old, the biological mother cut off all contact
between the child and the former girlfriend.[xxxiv]
In denying the petition seeking
visitation submitted by the former girlfriend, the Court of Appeals noted that
it was undeniable that she was a fit parent,
but held that she lacked standing to seek visitation as she failed to meet the
definition of parent as set forth in DRL Section 70.[xxxv]
While Courts appear
to be cognizant of the negative, harmful impact a determination that a heterosexual
individual who acted as a child’s biological parent
for an extended period of time but is not truly the biological parent would have
on the child, the same analysis apparently was not done with respect to the lesbian
couple. Surely, it is not in the best interests of the child of the lesbian couple
to no longer have contact with the woman he referred to as mommy for the first
five years of his life as she was essentially a second parent to him.
Thus, an
analysis of these two scenarios involving heterosexual parents and lesbian
parents reveals that on the one hand, you have heterosexual individuals who
previously
acted as the child’s biological parents but no longer wish to do so being
told by the Courts that they have no choice but to continue in their role as
a parent,[xxxvi] while on the other hand, a lesbian woman who acted as a child’s
parent for approximately five years and who desperately wants to continue seeing
the child is precluded from doing so by the Court on the grounds that she does
not satisfy the definition of a parent.[xxxvii] In both instances, an individual
acted as a child’s parent for a significant period of time. However, the
heterosexual father was ordered by the Court to continue his role as the father,
at least financially, while the lesbian mother was told by the Court that she
was considered to be a stranger to the child under the eyes of the law, that
she could no longer be considered or treated as a parent, and that she would
no longer be allowed to have any contact with the child.
This dichotomy of the
law demonstrates that more progress needs to be made with respect to this issue
of lesbians and homosexuals who wish to remain in the lives
of children for whom they have held themselves out as parents in order for the
law concerning homosexuals to be commensurate with the treatment afforded to
similarly situated heterosexual parents.
[i]. Linda R. V. Richard E., 162 A.D.2d 48, 561 N.Y.S.2d 29 (2d Dept. 1990);
Pawelski v. Buchholtz, 91 A.D.2d 1200, 459 N.Y.S.2d 190 (4th Dept. 1983); Scalia
v. Scalia, 217 A.D.2d 780, 629 N.Y.S.2d 497 (3d Dept. 1995).
[ii]. Rosenberg v. Rosenberg, 126 A.D.2d 537, 510 N.Y.S.2d 659 (2d Dept. 1987.)
[iii]. Id.
[iv]. Dornburch v. Dornbusch, 110 A.D.2d 808, 488 N.Y.S.2d 229 (2d Dept. 1985.)
[v]. Id.
[vi]. Id.
[vii]. Linda R. V. Richard E., 162 A.D.48, 561 N.Y.S.2d 29 (2d Dept. 1990); Blank
v. Blank, 124 A.D.2d 1010, 509 N.Y.S. 2d 217 (4th Dept. 1986); Pawelski v. Buchholtz,
91 A.D.2d 1200, 459 N.Y.S.2d 190 (4th Dept. 1983.)
[viii]. In Re Jane B., 85 Misc.2d 515, 380 N.Y.S.2d 848 (Sup. Ct. Onondaga Cty.
1976.)
[ix]. Id.
[x]. Id.
[xi]. Id.
[xii]. DiStefano v. DiStefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (4th Dept. 1978.)
[xiii]. Id.
[xiv]. Id.
[xv]. Id.
[xvi]. Gottlieb v. Gottlieb, 108 A.D.2d 120, 488 N.Y.S.2d 180 (1st dept. 1985);
Anonymous v. Anonymous, 120 A./D.2d 983, 503 N.Y.S.2d 466 (4th Dept. 1986.)
[xvii]. Anonymous v. Anonymous, 120 A./D.2d 983, 503 N.Y.S.2d 466 (4th Dept.
1986.)
[xviii]. Gottlieb v. Gottlieb, 108 A.D.2d 120, 488 N.Y.S.2d 180 (1st dept. 1985.)
[xix]. M.A.B. v. R.B., 134 Misc.2d 317, 510 N.Y.S.2d 960 (Sup. Ct. Suffolk Cty.
1986); Guinan v. Guinan, 102 A.D.2d 963, 477 N.Y.S.2d 830 (3d Dept. 1984); Williams
v. Williams, 188 A.D.2d 906, 591 N.Y.S.2d 872 (3d Dept. 1992); Paul C. V. Tracy
C., 209 A.D.2d 955, 622 N.Y.S.2d 159 (4th Dept. 1994); Feldman v. Feldman, 45
A.D.2d 320, 358 N.Y.S.2d 507 (2d Dept. 1974.)
[xx]. Hart v. Hart, NYLJ February 8, 1995 (Sup. Ct. Nassau Cty.)
[xxi]. Guinan v. Guinan, 102 A.D.2d 963, 477 N.Y.S.2d 830 (3d Dept. 1984.)
[xxii]. Jacob v. Dana, G.M., 86 N.Y.2d 651, 636 N.Y.S.2d 716 (Ct. App. 1995);
Adoption of Evan, 153 Misc.2d 844, 583 N.Y.S.2d 997 (Surrogate’s Ct. New
York Cty. 1992); Adoption of Caitlin and Adoption of Adam, 163 Misc.2d 999, 622
N.Y.S.2d 835 (Fam. Ct. Monroe Cty. 1994.)
[xxiii]. Jacob v. Dana, G.M., 86 N.Y.2d 651, 636 N.Y.S.2d 716 (Ct. App. 1995.)
[xxiv]. In the Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d
110 (2d Dept. 1991); In the Matter of Martin D v. Lucille F, 9 Misc.3d 783, 800
N.Y.S.2d 902 (Fam. Ct. 2005.)
[xxv]. In the Matter of Martin D v. Lucille F, 9 Misc.3d 783, 800 N.Y.S.2d 902
(Fam. Ct. 2005.)
[xxvi]. In the Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d
110 (2d Dept. 1991.)
[xxvii]. Alison D. V. Virginia M, 77 N.Y.2d 651, 569 N.Y.S.2d 586 (Ct. App. 1991.)
[xxviii]. Id.
[xxix]. Id.
[xxx]. Id.
[xxxi]. Id.
[xxxii]. Id.
[xxxiii]. Id.
[xxxiv]. Id.
[xxxv]. Id.
[xxxvi]. In the Matter of Barbara A.M. v. Gerard J.M., 178 A.D.2d 412, 577 N.Y.S.2d
110 (2d Dept. 1991); In the Matter of Martin D v. Lucille F, 9 Misc.3d 783, 800
N.Y.S.2d 902 (Fam. Ct. 2005.)
[xxxvii]. Alison D. V. Virginia M, 77 N.Y.2d 651, 569 N.Y.S.2d 586 (Ct. App.
1991.)
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