If one parent is in homosexual relationship, how does this affect child custody?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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When a court is asked to determine child custody, they will do so by looking at the best interests of the child. In order for them to change their original custody decision, there generally must be some material change in circumstances that affects the court’s view of what is best for the child. If one parent begins living with a same-sex partner, depending on the view of the court and/or state, this may be viewed as a material change in circumstances and may be grounds for a change in the custody arrangement.

A material change in circumstances in the context of child custody is when a court determines that the best interest of the child is affected in such a way that the original custody order should now be modified. Any type of new relationship or cohabitation, homosexual or heterosexual, by one parent can trigger the other parent to request review of the custody order. However, whether the court will view a homosexual relationship or cohabitation as a material change in circumstances will depend greatly on both the nature of the relationship, as well as a particular state or court’s moral stance on homosexual relationships in general.

Court Treatment of a Parent’s Homosexual Relationship

Some courts treat cohabitation with a homosexual partner the same as they would treat cohabitation with a heterosexual partner for purposes of determining whether there has been a material change in circumstances. In these cases, a court will generally look at whether the child likes the parent’s partner, whether the child is exposed to sexual activity of the partners, or whether the new relationship or cohabitation is otherwise shown to harm the child.

In other states, however, judges are biased against homosexual relationships or cohabitation by a parent, and will automatically assume that living with a parent and his or her same sex partner will harm the child. This assumption generally leads to the decision that a material change in circumstances exists, and that therefore the custody order should be modified. These courts often assume that the child will be subject to ridicule by their peers, or otherwise emotionally harmed by being exposed to the parent’s homosexual relationship.

Unfortunately, some states and courts will treat all parental homosexual relationships as a material change in circumstances for purposes of a custody order, regardless of the nature of the relationship itself. If an individual is faced with a review of a child custody order based on his or her same sex relationship, the best a parent can do in this situation is try to show that the child is not exposed to any physical affection between the couple, and that the child likes and gets along with the parent’s partner. Further, some courts biased against parental same-sex relationships have allowed an original custody order to stay intact if the parent can show that the child is not at all aware of, or exposed to, the parent’s homosexual relationship.

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