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Copyright (c) 1998 Canadian Journal of Family Law
Canadian Journal of Family Law

ARTICLE: Lesbian (and Gay) Custody Claims: What Difference Does Difference Make?


15 Can. J. Fam. L. 131


Susan B. Boyd *


I want to suggest that the legal community needs to rethink the current stance that predominates in judicial decision-making, and probably in most lawyers' arguments on behalf of lesbian or gay parents. This stance can be summarized as follows: that the sexual orientation (in other words, being lesbian or gay) of a parent alone should not be relevant to judicial decisions concerning custody and access, unless it has a detrimental impact on the welfare of the child(ren) in question. I completely agree that the fact that a parent is lesbian or gay should indeed not be regarded as a negative factor per se in custody and access decision-making. The problem is that, in practice, the interpretation of this "progressive" and apparently neutral stance on sexual orientation is not neutral at all. Rather, the assumption of heterosexuality as norm(al) interferes with a judge's ability to treat lesbianism, for instance, as per se irrelevant to custody determination -- that is, even when this apparently neutral stance is invoked in a decision as a guiding principle, judges are still influenced by the fact that a parent claims a sexual identity that challenges the norm.

I want to argue that in order to counter this problem, in some circumstances, it may be important to take the sexual orientation of each parent (no matter whether she or he is heterosexual or lesbian or gay) into account. Such an approach might go some distance towards developing a ...
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