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Keywords:

  • sexuality;
  • homosexuality;
  • gender;
  • custody;
  • lesbian;
  • gay;
  • parenting

Abstract

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

For gay and lesbian parents, child custody decisions have progressed considerably since the time it was generally accepted by courts that homosexual parents were per se unfit for custody. Most states now employ an orientation blind standard or nexus test, meaning that the court will not take a parent's orientation into account unless there is evidence of harm to the child. Although this is a step in a positive direction, there are unforeseen costs. Orientation blindness may seem neutral on the surface because nexus tests usually employ the term “sexual orientation,” but the question of harm is applied only to homosexual parents and not heterosexual parents. Gay and lesbian parents who wish to raise sexual orientation claims about the positive aspects of role-modeling and community inclusion may be discouraged from doing so because parent-child role-modeling has traditionally been seen as recruitment, predation or the disruption of “normal” sexual development when the parent is gay or lesbian.

Key Points for the Family Court Community:

  • Gay and Lesbian parents have strong incentives to argue against parent-child imitation.
  • Heterosexual parents are not similarly constrained about positive modeling for their children.
  • Orientation-blind standards may not be neutral in the application because of the strong social belief in parent-child imitation.
  • If courts are aware of the disincentives that lesbian and gay parents have against arguing for positive modeling, they can more neutrally apply the orientation standards.

INTRODUCTION1

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

As a result of advocacy by LG2 parents and their representatives, more courts have moved toward orientation-blindness by instituting a nexus test as part of the effort to make the court a more neutral arbiter between heterosexual and homosexual parents. Instead of holding that a parent's homosexuality is per se harmful to children, these courts “blind” themselves to a parent's sexual orientation unless there is a demonstrated nexus between the parent's sexual orientation and the potential harm to the child.

In fact, court decisions are not orientation blind for a couple of reasons. First, the nexus test itself frames homosexuality as potentially harmful. Second, courts do not neutrally apply the nexus test because of mimetic reproduction, strongly held cultural beliefs that identity is transmitted from parent to child through imitation. Courts treat parents as the primary influence on the child's development through modeling and imitation. When making custody decisions, mimetic reproduction is seen as a natural part of parenting and childhood development.

Some parents have used this to their advantage, arguing that they will produce a better outcome by modeling valued traits or that the other parent will model devalued traits. Because homosexuality is often devalued by courts, LG parents and their advocates may not have the same ability to argue that placing the child with them is in the child's best interests because they will model homosexuality. Heterosexual parents are not similarly constrained from making modeling arguments, and the nexus test reinforces this inequity by permitting LG parents only to argue defensively that they will not “make” their children gay.

Understandably, LG parents may fear that they will lose custody if they cannot simultaneously convey that they are good parents and that they will not model homosexuality for their children. But if LG parents and their advocates feel compelled to continue arguing that LG parents do not model homosexuality for their children, they should realize that they are arguing against a deeply held belief that parents transmit identity to children, a process that courts seem to view as natural and universal.

In order to counter homosexual bias, courts would also need to apply orientation standards neutrally. Rather than penalizing LG parents for conduct that would be considered the indicia of successful heterosexual relationships—such as hugging, kissing, holding hands, and attending family events together—courts should acknowledge the underlying reasons for treating LG parents differently and intentionally correct themselves so they become truly neutral in their application of these legal standards.

I. NEUTRAL APPLICATION OF THE NEXUS TEST

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

LGBT3 advocates have made significant progress in family courts.4 One mark of progress is that many courts now use the nexus test when considering a parent's sexual orientation during custody decisions, ruling that a parent's sexual orientation may be taken into account only if there is evidence that it is likely to cause harm to the child. The nexus test is a vast improvement over prior standards, which classified homosexual parents as per se unfit.

The majority of family courts employ the nexus test5 in order to achieve orientation-neutrality and to protect LG parents from judicial bias. An example of this type of test appears in Damron v. Damron,6 where the court stated, “[W]e hold a custodial parent's homosexual household is not grounds for modifying custody . . . in the absence of evidence that environment endangers or potentially endangers the children's physical or emotional health or impairs their emotional development.”7 To demonstrate their neutrality between homosexual and heterosexual individuals, some courts point out that they use the same nexus test8 when looking at heterosexual parents, taking into account the timing and frequency of their romantic relationships9 and paying attention to whether their relationships were “illicit,”10 post-marital, or extramarital.11

While orientation-blindness using the nexus test is an improvement over the overt hostility that used to predominate, it does not combat all forms of bias. Nancy G. Maxwell and Richard Donner argue that because LG sexuality is still framed as harmful, decisions in recent years are pushing LG parents back into the closet.12 In other words, the nexus test itself is not neutral because it necessarily seeks evidence of a connection between homosexual orientation and harm. While expressed in formally neutral terms, the test itself doesn't recognize any potential value flowing from the LG parent to the child on account of the parent's sexual orientation.

Courts deciding custody cases appear to have become more tolerant since 2000, but LG parents who are open in court about their sexual orientation are still more likely to lose custody or have visitation restricted. Kimberly Richman gathered and analyzed child custody decisions of lesbian and gay parents in the United States from 1952 through 2004.13 One of the trends she notes is that one of the unintended consequences of legal disputes is that parents change their behavior and this impacts “the framing of LGBT identity more generally.”14 Indeed, displays of affection and openness about LG identity continue to provide courts with pretextual grounds for restricting visitation or granting custody to the heterosexual parent. LG sexuality is framed as dangerous to children. LG parents have little space in which to conduct their lives without fear of losing their children.15 They may not be able to easily predict in advance whether courts will determine that a behavior poses a risk of harm to the children. This could put LG parents in a position where they must calculate how long or how often to kiss a partner in front of their children, whether taking them to a same-sex wedding will seem like indoctrination, and if snuggling in bed with them is worth the risk of losing custody.16

If courts were completely indifferent to orientation, they would view LG parents as they do other parents who transmit values, culture, morals, and traditions—without construing transmissions based on sexual orientation as harmful. In 14 percent of the cases (44) Richman studied, “harm” was defined, at least in part, as the “production of a homosexual child.”17 Courts may even use progressive language and gestures towards neutrality in order to conceal biases against homosexuality while applying the standard in a non-neutral manner.

An example of courts using progressive language in this way is the 1995 case Hertzler v. Hertzler,18 in which a lesbian mother and heterosexual father were disputing custody of their son and daughter. When the parties divorced, they agreed that the mother would have primary custody and the father liberal visitation privileges so long as the mother disavowed lesbianism. When the father discovered that the mother began a relationship with a woman, he confronted her and the court found that she “voluntarily” relinquished custody of the children to the father.19 The father remarried and began teaching the children that their mother's lifestyle was morally wrong.20

Although the appellate court spoke dismissively about the lower court's holding that the mother had “eroticized” the children,21 the appellate court itself had characterized the mother's behavior as involving “intensive and unrelenting efforts to immerse the children in her alternative lifestyle.”22 By contrast, the dissent argued that the father was the greater offender because he sought to alienate the children from the mother,23 while the mother's behavior that the court criticized merely consisted of “ ‘snuggling’ with the children and her companion . . . [and] participation of the children in a gay/lesbian rights parade and her ‘commitment’ ceremony.”24

For its time period, the Hertzler appellate court seems progressive in that it did not conflate the mother's sexual orientation with predation, disapproving of the allegations of “eroticization” (code for sexual abuse) that the lower court had raised.25 The appellate court recognized the father's role in both parents' bad behavior, specifically both parents' “thoughtless insistence upon making their offspring the focal point of an acrimonious lifestyle debate.”26 The court urged that the adults resolve the dispute by putting their children's interests above their own, asserting that it was in the children's best interests to have access to and good relationships with both parents.27 The court explicitly said the lower court erred by discriminating against the mother on the basis of her sexual orientation but that the error was “cured by a decision which serves the best interests of the children.”28

This ruling seems to move towards placing heterosexual and homosexual parents on a level playing field because the court considered the father's religious teachings against homosexuality along with the mother's involvement in a lesbian relationship. However, the lower court's ruling was affirmed by the appellate court, and the father retained primary custody of the children. The lower court's error—relying on biased experts who testified that the mother sexually abused the children because of her openness about her sexual orientation—may indeed have been cured. However, the appellate court made the overarching error of failing to remedy the lower court's non-neutral consideration of the parents' behavior.

The appellate court treated the mother's behavior as recruitment, even though it did not seem abnormal, predatory, or proselytizing. The mother behaved as a parent often does regardless of sexual orientation; she snuggled with children in bed and invited them to important events. As the dissent points out, the mother did not even try to retaliate by alienating the children against the father's religious teachings.

The father “instruct[ed] the children that Pamela [their mother] had abandoned them for the affections of another woman, embracing a lifestyle which was a sin and abomination.”29 Nonetheless, the court treated the mother as though she had actively attempted to indoctrinate the children to homosexuality,30 while ignoring evidence that the father deliberately attempted to alienate the children from their mother. The court was reluctant to question or undermine the father's right to transmit his religious beliefs and, in affirming the lower court, effectively condoned his attempt to alienate the children from their mother. While local social norms may inform a given court's decision for or against the LG parent, the orientation-blind nexus test prevents courts in more liberal jurisdictions from addressing orientation as anything but a potential harm.

Retaining nexus tests, or some way to account for harm to children, is a necessary failsafe in custody determinations. I am not suggesting that the solution is to do away with the nexus test unless the test is replaced with a rule that does not frame homosexuality only in terms of harm to the child.31 The problem is not just the neutrality of the test itself but the unforeseen interaction between mimetic reproduction and orientation-neutrality, which is further discussed below.

While a legislature could make the nexus test more facially neutral, the focus should be on family courts. Because of their elastic and responsive nature, family courts have been valuable for making progress in LG parents' rights.32 Until courts look at the underlying causes of non-neutrality and non-neutral applications of nexus tests, even reformed tests can continue to operate as a cover for bias. Signs of overt hostility to homosexuality are less evident than before; nonetheless, bias still exists.

II. MIMETIC REPRODUCTION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

Mimetic reproduction is the strong cultural belief that direct parent-child modeling and imitation are the primary sources of a child's development. It draws the concept of mimesis and reproduction from literary theory to represent the way we talk about how children identify with and imitate parents during development. This type of reproduction is not just physical but also encompasses the continuation of culture, religion, traditions, values, and morals. Specifically, it refers to deeply held beliefs about parent-child imitation, which exist alongside or in spite of evidence that genetics may play a more significant role in determining a child's development. Mimetic reproduction refers to the culturally-informed, imprecise way that people and courts discuss children's development through modeling and imitation.

Mimetic reproduction matters in court because of the value that Americans place on the right to pass on culture in families and the mix of science and popular culture that continues to inform and reinforce this value. Parents, court officials, and attorneys are part of society and are not immune to prevailing beliefs that are deeply ingrained in the American psyche. In the language of the Supreme Court in Moore v. City of East Cleveland,33 parental transmission of cultural identity is a “most cherished” value protected by the Constitution. The Court stated, “[o]ur decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.”34

Imitation is seen in the profound and the mundane. From milk promotions35 to parenting advice columns,36 parents are informed that their children imitate them and that they should use their influence to encourage the development of good characteristics in their children. This is based on the widespread belief that parents influence and shape their children's cultural identities. Some parents might be skeptical of an imitation-only account of childhood development. Nonetheless, in a college textbook Exploring Psychology,37 the introduction to an observational learning section reads like a list of truisms drawn from relatively common experiences of parent-child imitation:

Observational learning, in which we observe or imitate others . . . plays a big part. A child who sees his big sister burn her fingers on the stove has thereby learned not to touch it. The process of observing and imitating a specific behavior is often called modeling. We learn all kinds of social behaviors by observing and imitating models.38

The author discusses primates that engage in modeling and even uses the phrase “monkey see, monkey do.”39 There are no scientific studies cited to support this application of “monkey see, monkey do” to children; rather, the author of this science textbook seems to rely primarily on common sense to support these claims. Given the ambiguity surrounding the science of childhood development and popular beliefs of imitation supported by basic college textbooks and common sense, it is hard to combat the pervasive belief in parent-child imitation.

Courts sometimes discuss parental modeling as if only parents—and not peers, genetics, and environment—have the greatest influence on children's development. Other times, courts blur the line between imitation that leads to identity formation and cultural transmission. Mimetic reproduction includes the idea that imitation leads to the development of a child's identity and that parents transmit culture to children through modeling. Both ideas exist independently of each other, but they coincide in custody and visitation disputes when family courts make decisions about the best interests of the child.

Courts designate a primary caregiver who they think will produce a better outcome on the assumption that the child will become more like that parent through close contact, modeling, and imitation and less like the non-primary caregiver. Under mimetic reproduction, parental identity becomes a stand-in for the child's two possible orientation outcomes. Parents who regularly attend church, for example, could leverage that to discuss the qualities they model, while also pointing out the other parents' less valuable or undesirable qualities. Since the child would spend more time with the primary caregiver, the heterosexual parent could intimate to the court that the possibility of a heterosexual outcome is more likely if he or she is given primary custody.

An example of a parent working within mimetic reproduction to obtain an advantage in court is the case In re Marriage of D.F.D.40 The mother alleged during a custody dispute that the father was a risk to the child because he was a transvestite. Four separate evaluators presented evidence showing that the father posed little risk of harm to the child because his behavior was not compulsive and he had successfully kept his cross-dressing secret from his mother and closest friends.41 Despite the evidence about the father's strong parenting skills and the low risk of harm from cross-dressing, the lower court found that “if the parties' son was exposed to such role modeling (cross-dressing), he would be irreparably harmed.”42 The lower court awarded sole custody to the mother, which the appellate court later reversed.43

This case illustrates how powerful imitation arguments are in custody disputes and why there are relatively few appellate cases that feature mimetic reproduction. Although the appellate court reversed the lower court in this example, the mother had already subjected the father to four separate evaluations. Evaluations often are expensive and time consuming; even if the court assigns costs evenly to the parties, high litigation costs can deter parents who receive unfavorable rulings at the trial level. Many of the cases in which parental transmission arguments are used to good effect never reach the appellate level because of litigation expenses and the emotional wear and stress of custody disputes on children.

III. LESBIAN AND GAY PARENTS

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

When custody decisions are made, mimetic reproduction operates in the background as a natural part of parenting and childhood development. However, LG parents and their advocates cannot use mimetic reproduction to argue affirmatively that placing the child with the LG parents is in the child's best interests because they will model homosexuality. Heterosexual parents are not similarly constrained. Orientation-blind standards reinforce this inequity, permitting LG parents to only argue defensively that they do not make their children gay.

In the context of custody cases, Kenji Yoshino theorized that courts have incentivized heterosexual assimilation or the performance of asexual homosexual identity for LG parents because courts believe “that the failure of such [to cover their homosexuality] will result in the conversion of their children to homosexuality.”44 He proposed “indifference” to sexual orientation as a progressive reform to combat bias against homosexuality.45 However, mimetic reproduction, operating as an almost unconscious, diffuse belief that children become like their parents, interacts with the inability to address sexual orientation except as a danger. The unforeseen consequence is that this interaction severely limits the arguments LG parents can make about their value as parents.

Facially neutral standards are an improvement compared to the current standards that frame homosexuality as harmful to children. Still, the social investment in mimetic reproduction is too strong to imagine that a facially neutral standard could counter the belief that gay parents are modeling sexual orientation for their children. The inability of courts and LG advocates to imagine and talk about homosexual outcomes in the same way as heterosexual outcomes demonstrates the full strength of mimetic reproduction and homosexual bias.

The question of a heterosexual or homosexual outcome for a child is not irrelevant to a custody determination. If studies demonstrated that children raised by lesbian mothers were more likely to have homosexual experiences than children raised by heterosexual single mothers, would a judge be more or less likely to award custody to a lesbian parent during trial?

In 2001, Judith Stacey and Timothy J. Biblarz published a review and analysis of LG parenting studies.46 Stacey and Biblarz recognize the political ramifications of their review, but hint that re-framing the issue of LG parenting outside of heterosexism could be a productive path. The review notes that a higher proportion of children raised by LG parents engage in homosexual activity than children raised by heterosexual parents; these results have been downplayed by LGBT advocates and embraced by opponents of LG parenting.47

Assume that to some degree, courts and both opponents and advocates of LG parenting agree that LG parents are more likely than heterosexual parents to have children who engage in homoerotic behavior. The question before a judge in a custody dispute would then shift from whether a parent transmits homosexuality to his or her child through modeling to whether possible reproduction of homosexuality is value-neutral or poses risk of harm to the child.

Today, under the cover of orientation-blindness, a judge's opinion about the relative good or harm of possibly transmitting homosexuality is part of the best-interests calculation. The issue is usually framed as whether it is in the best interests of a child for custody to be awarded to an LG parent with the possible risk that the child will become homosexual or open-minded about sexual minorities. It is rarely framed as whether, if the heterosexual parent is awarded custody, it is in the best interests of a child to become heterosexual. But, if orientation-blindness were neutral, the best interests of the child would be the objective and the standard would not be framed in a way that is biased against homosexuality.

Given the history of homophobia and concern about recruitment, there is likely to be resistance to moving away from emphasis on the reproduction of sexual orientation from parent to child. But LG parents, their advocates, and courts should not wholly embrace the “nature” side of the nature/nurture debate by asserting that the “nurture” of LG parents has no effect on children. Rather, LG parents should have the space to argue for custody in order to pass on experiences, traditions, morals, values, and a worldview that is shaped by their identity as lesbian or gay persons. This is not possible while courts fail to neutrally apply the nexus test and prefer a heterosexual outcome to a homosexual outcome in children.

A better way for family courts to process sexual orientation as a factor in child custody disputes is to treat homosexual parents like heterosexual parents and impartially value mimetic reproduction. Courts must do more than pay lip service to orientation-blind nexus tests. Imagine if heterosexual parents were expected to protect their children from becoming heterosexual—or risk losing custody—by constantly self-monitoring the expression of their identities, censoring their public displays of affection, and cutting off their pro or anti-gay rights political affiliations. Ignoring or purporting to ignore a parent's sexual orientation unless there is evidence of harm to the child means that any dialogue about a potential homosexual outcome manifests itself as concern about the LG parent's behavior. This concern animates court opinions so that an LG parent's friendships, displays of affection to a partner or spouse, political affiliations, and support networks may be interpreted as indicia of recruitment rather than transmitting cultural identity.

The subtlety of the bias against LG parents and the lack of counter-narratives to combat attitudes and perceptions of LG parenting means that LG parents must tread carefully. What one court calls the “indoctrination” of homosexuality48 might be accepted in another court as harmless or benevolent passing on of identity and culture. An example of the latter shows that American attitudes about homosexuality change,49 and courts have begun to de-couple parents' sexuality from their parenting skills. The Georgia Supreme Court overturned a child custody order prohibiting the children's contact with the gay father's partner and friends.50 The Mongerson court reasoned that the exclusion of the father's partner and gay friends was contrary to the public policy goal of “encourag[ing] divorced parents to participate in the raising of their children.”51 The decision echoes the Hertzler court's concerns about parental alienation. Therefore, although it may take time and require help from national advocacy groups to reframe the impact of homosexuality on children, courts are beginning to have a more nuanced understanding of mixed-orientation families.

A child's potential sexual orientation should not be a factor considered by courts at the expense of a child losing a loving relationship with a parent. An LG parent who is capable of countering homophobia without denigrating heterosexuality is a benefit to a child who is heterosexual because in a mixed-orientation family, children who are heterosexual could feel embarrassed or worried about the way other people perceive their family. An LG parent could preserve the ties of parent-child love by reassuring that child that her parent is available as a resource while she works through the transition to a mixed-orientation family.52

To demonstrate this, LG parents could provide courts with accounts of adult children of gay or lesbian parents who are grateful for the appreciation of diversity and compassion for marginalized groups that they learned from their parents. Dr. Nanette Gartrell, the principal investigator of the 23-year-long National Longitudinal Lesbian Family Study, stated, “By the time our study kids were 10 years old, they demonstrated a sophisticated understanding of diversity and tolerance, and an appreciation of the destructive effects of discrimination.”53 Even if courts are convinced that children's default sexual orientation is heterosexual and that homosexuality is an abnormality, there is an argument to be made that maintaining strong ties with an LG parent is a worthy objective because it could prevent the child from participating in bullying gay or lesbian children at school. Benefits also accrue to other children who come into contact with the child of an LG parent. Those children could learn to appreciate differences and to treat LG people with dignity and respect.

CONCLUSION

  1. Top of page
  2. Abstract
  3. INTRODUCTION
  4. I. NEUTRAL APPLICATION OF THE NEXUS TEST
  5. II. MIMETIC REPRODUCTION
  6. III. LESBIAN AND GAY PARENTS
  7. CONCLUSION

Orientation-blindness is appealing because it is a step towards parenting equality—but it is a step and not a destination. The strides made in preserving parent-child relationships for LG parents have been many and should not be discounted. Still, LG parents, advocates, and courts should be aware that orientation-blind rulings mask continuing bias. As courts move towards real neutrality, they have the opportunity to embrace LG parents and their advocates in working within mimetic reproduction in framing the dialogue about what LG parents have to offer their children.

LG parents may feel as deeply about passing on their stories, experiences, and insights as do heterosexual parents about passing on religion or cultural heritage. An LG parent who wants to be a part of his or her child's life should be able to say, without fear of losing custody, “As a gay parent, I want my child to understand who I am and what my life experience has been like. I want my child to have a positive experience growing up as part of a mixed-orientation family.” If courts understood and appreciated this, they would be better equipped to determine what is in the best interests of the child and to protect the child's relationship with both parents.

There may be reluctance for LG parents and advocates to believe that counter-narratives will work in custody disputes. Some might even argue that losing custody of a child is too great a risk and that LG parents should continue using defensive strategies as they have in the past. But the current strategy is also risky. The relationship with the child could be damaged, perhaps irreparably, because of the negative messages about homosexuality that defensive strategies inevitably send. Counter-narrative strategies also leave evidence of bias on the record for appeal while still protecting the child's interest in undivided loyalties and maintaining strong relationships with both parents.

As long as mimetic reproduction persists as a cultural assumption and orientation-blindness forecloses the possibility of courts accepting that LG parents have anything positive to pass on to their children because of their identity, custody decisions will continue to be tainted by the dual belief that being gay is inherently negative and that LG parents make their children gay.

NOTES
  • *

    Many thanks to the Emerging Family Law Scholars and Teachers, especially to Clare Huntington, and to Kaarin Praxel for research assistance.

  • 1

    The full version of this article is available at 22 Yale J.L. & Feminism 53.

  • 2

    Lesbian and gay (LG).

  • 3

    Lesbian, Gay, Bisexual, and Transgender (LGBT).

  • 4

    See Kimberly D. Richman, Courting Change: Queer Parents, Judges, and the Transformation of American Family Law (2009).

  • 5

    Jennifer Naeger, And Then There Were None: The Repeal of Sodomy Laws After Lawrence v. Texas and Its Effect on the Custody and Visitation Rights of Gay and Lesbian Parents, 78 St. John's L. Rev. 397, 415 (2004) (“[A] majority of states have adopted the ‘nexus test.’ ”); Kenji Yoshino, Covering, 111 Yale L.J. 769, 859 (2002) (“[T]he majority of states have come to adhere to a nexus test.”).

  • 6

    Damron v. Damron, 670 N.W.2d 871 (N.D. 2003).

  • 7

    Id. at 876.

  • 8

    J.B.F. v. J.M.F., 730 So. 2d 1186, 1189 (Ala. Civ. App. 1997) (citing Phillips v. Phillips, 622 So. 2d 410 (Ala. Civ. App. 1993)); Mongerson v. Mongerson, 678 S.E.2d 891, 895 (Ga. 2009); Boswell v. Boswell, 721 A.2d 662, 678 (Md. 1998).

  • 9

    Collins v. Collins, No. 87-238-II, 1988 WL 30173, at *3 (Tenn. Ct. App. Mar. 30, 1988)

  • 10

    Constant A. v. Paul C.A., 496 A.2d 1, 10 (Pa. Ct. 1985)

  • 11

    North v. North, 648 A.2d 1025, 1030 (Md. Ct. Spec. App. 1994).

  • 12

    Nancy G. Maxwell & Richard Donner, The Psychological Consequences of Judicially Imposed Closets in Child Custody and Visitation Disputes Involving Gay or Lesbian Parents, 13 Wm. & Mary J. Women& L. 305 (2006). Maxwell and Donner focus on the family destabilization that occurs because of “secret-keeping,”id. at 318, and the “false sense of power” that children have in relation to parents who are judicially required to remain in the closet, id. at 325.

  • 13

    Richman, supra note 5.

  • 14

    Id. at 163.

  • 15

    Id.

  • 16

    Hertzler v. Hertzler, 908 P.2d 946 (Wyo. 1995).

  • 17

    Richman, supra at 5, 29–30.

  • 18

    Hertzler, 908 P.2d 946.

  • 19

    Id. at 951. We can question how “voluntary” the custody shift really was. See Susan J. Becker, Child Sexual Abuse Allegations Against a Lesbian or Gay Parent in a Custody or Visitation Dispute: Battling the Overt and Insidious Bias of Experts and Judges, 74 Denv. U. L. Rev. 75, 101 (1996) (explaining that according to the court transcript, the father threatened to sue the mother for custody unless she consented to reversing the existing custody arrangement).

  • 20

    Hertzler, supra note 17, at 949.

  • 21

    Id. at 951.

  • 22

    Id. at 949.

  • 23

    Id. at 954 (“The record quite clearly reveals that the father and Christine [step-mother] worked long and hard at alienating these children from their mother.”).

  • 24

    Id. at 951.

  • 25

    Id.

  • 26

    Id.

  • 27

    Id. at 952 (“If [the parents] cannot fully subordinate promotion of their respective lifestyles to the natural innocence and love of their children for both parents, they will quickly extinguish whatever remaining chances these children have for happy and productive lives.”).

  • 28

    Id.

  • 29

    Id. at 951.

  • 30

    Id. at 949 (“[T]he record is equally replete with Pamela's intensive and unrelenting efforts to immerse the children in her alternative lifestyle, seemingly to the point of indoctrination.”).

  • 31

    M.A.T. v. G.S.T., 989 A.2d 11, 17 (Pa. Ct. 2010).

  • 32

    Richman, supra note 5, 163 * OR introduction (positing that the case by case approach in family law has been partly responsible for LGBT parenting progress).

  • 33

    431 U.S. 494 (1977).

  • 34

    Id. at 503–04.

  • 35

    The website of the Southeast United Dairy Industry Association, Inc., features an information sheet called “12 Ways to Dish Out Dairy.” The first way to dish out dairy is “Copy Cat: Children imitate their parents. In fact, research concluded that the amount of milk consumed by moms is the strongest predictor of their children's intake. So drink up, Mom.” South East United Dairy, 12 Ways To Dish Out Dairy, http://www.southeastdairy.org/file/milklovers/health_tips.html (follow the “Dish Out Dairy” link) (last visited Apr. 20, 2010).

  • 36

    Alan E. Kazdin & Carlo Rotella, I Spy Daddy Giving Someone the Finger: Your Kids Will Imitate You. Use It as a Force for Good, Slate, Jan. 27, 2009, http://www.slate.com/id/2209882 (last visited Apr. 30, 2010); Nat'l Inst. Child Health& Human Dev., Adventures in Parenting: How Responding, Preventing, Monitoring, Mentoring, and Modeling Can Help You Be a Successful Parent, http://www.nichd.nih.gov/publications/pubs/adv_in_parenting/index.cfm (last visited Apr. 20, 2010); Linda Schuchmann, The Importance of Role Modeling for Our Children, Parenting.Org, http://www.parenting.org/article/importance-role-modeling-our-children, (last visited July 25, 2011); The Substance Abuse and Mental Health Services Administration (SAMHSA) of the Department of Health and Human Services offers parenting advice on being a good role model for your child. SAMHSA, Be a Good Role Model, http://www.bblocks.samhsa.gov/family/walk/default.aspx (last visited July 1, 2011); Parenting.com, a website by the makers of Parenting and Babytalk, magazines available for little to no cost, published Are You a Good Role Model?, Parenting.com, http://www.parenting.com/article/are-you-a-good-role-model (last visited July 1, 2011); The National Association of Social Workers offers evidence that role modeling is directly related to good outcomes for children in Julie Niven, Nat'l Assoc. of Soc. Workers, The Importance of Being a Good Role Model: Parenting in Native Alaskan Villages, http://www.education.com/reference/article/Ref_Importance_Good_Role/ (last visited Apr. 20, 2010). The public service advertisement, Children See, Children Do, which was produced and aired in Australia, shows how children mimic disfavored parental behavior such as abuse, violence, and racism. Nat'l Assoc. for Prevention of Child Abuse and Neglect, NAPCAN, Children See, Children Do, The Inspiration Room, Nov. 26, 2006, http://theinspirationroom.com/daily/2006/napcan-children-see-children-do/, (last visited July 25, 2011). This campaign name seems to intentionally draw on the truism “monkey see, monkey do.”See also, David G. Myers, Exploring Psychology: Sixth Edition in Modules (6th ed. 2005).

  • 37

    Myers, supra note 37.

  • 38

    Id. at 273.

  • 39

    Id.

  • 40

    In re Marriage of D.F.D, 862 P.2d 368 (Mont. 1993).

  • 41

    Id. at 373–75. One of the experts, Dr. Green, provided a report that was generally favorable for the father but even so advised him not to cross dress during the child's “next few formative years.”Id. at 374.

  • 42

    Id. at 375.

  • 43

    Id. at 376–77.

  • 44

    Kenji Yoshino, Covering, 111 Yale L.J. 769, 863 (2002).

  • 45

    Id.

  • 46

    Recent studies suggest children raised by LG parents are likely to be open to homoerotic experiences and tend to be more tolerant of sexual minorities. Judith Stacey & Timothy J. Biblarz, (How) Does the Sexual Orientation of Parents Matter, May 15, 2001 Am. Soc. Rev. 159 (2001).

  • 47

    Bob Unruh, “Gay” Family Kids 7 Times More Likely To Be Homosexual, WorldNetDaily, June 8, 2009, http://www.wnd.com/index.php?fa=PAGE.view&pageId=100593.

  • 48

    Hertzler, supra note 17 at 949 (“[T]he record is equally replete with Pamela's [lesbian mother] intensive and unrelenting efforts to immerse the children in her alternative lifestyle, seemingly to the point of indoctrination.”).

  • 49

    More people polled in America now believe that orientation cannot be changed. See Poll Majority: Gays' Orientation Can't Change, CNN, June 27, 2007, http://edition.cnn.com/2007/US/06/27/poll.gay (showing for the first time on CNN that a majority of Americans believed that lesbians and gays “could not change their sexual orientation even if they wanted to”). In addition, more conservatives support gay marriage currently than in 2004. See Gary Langer, Changing Views on Gay Marriage, Gun Control, Immigration and Legalizing Marijuana, ABC News, Apr. 30, 2009, http://abcnews.go.com/images/pollingunit/1089a6hotbuttonissues.pdf (reporting that “in 2004, just 32 percent of Americans favored gay marriage, with 62 percent opposed. Now 49 percent support it versus 46 percent opposed—the first time in ABC/Post polls that supporters have outnumbered opponents” and that “[w]hile conservatives are least apt to favor gay marriage, they've gone from 10 percent support in 2004 to 19 percent in 2006 and 30 percent now”). Even though Americans still oppose gay marriage (55% to 38%), more Americans support civil unions (57% to 38%) and the repeal of homosexual bans in the military (56% to 37%). See David Crary, National Poll: Mixed Views on Gay-Rights Issues, The San Diego Union Tribune, Apr. 30, 2009, http://www.signonsandiego.com/news/2009/apr/30/us-gay-rights-poll-043009/ (reporting on the Quinnipiac University poll of 2041 registered voters regarding their views about gay rights).

  • 50

    Mongerson, 678 S.E.2d at 891.

  • 51

    Id. at 895.

  • 52

    See, e.g., Abigail Garner, Families Like Mine: Children of Gay Parents Tell It Like It Is 54–63 (2004) (discussing coming out to children and how parents can be a better resource for their children during this process).

  • 53

    Susan Donaldson James, “Gayby Boom” Fueled by Same-Sex Parents: Post-1980s Children of Gay Parents Thrive in School, More Open Society, ABCNews.com, Aug. 3, 2009, http://abcnews.go.com/print?id=8232392 (last visited May 1, 2010).

Kim Pearson is an assistant professor at Gonzaga University School of Law. Prior to starting in 2010 at Gonzaga, Kim was the 2008–2010 Williams Institute Law Teaching Fellow at UCLA School of Law. During the fellowship, Kim taught Inequality in Family Law, Law & Sexuality, and a Legal Scholarship seminar. Kim graduated from the J. Reuben Clark Law School at Brigham Young University in 2004 and practiced law in Las Vegas, NV.