AN ALTERNATIVE VIEW TO “CHILD CUSTODY–WHEN ONE PARENT IS HOMOSEXUAL”

• DOI: http://doi.org/10.1111/j.174-1617.1979.tb00804.x
• Author: Donna J. Hitchens,Del Martin,Mary Morgan
• Published date: 01 December 1979
• Date: 01 December 1979

AN ALTERNATIVE VIEW TO "CHILD CUSTODY-

WHEN ONE PARENT IS HOMOSEXUAL"

Donna

J.

Hitchens, Del Martin and Mary Morgan*

This article is written in the spirit of continu-

ing

a

dialogue that began with

Ross

Campbell's

article entitled "Child Custody-When One

Parent

Is

a Homosexual," which appeared

in

a previous issue of this publication. The broad

discretion vested

in

trial judges to determine

placement

in

contested child custody cases,

combined with the prevalence of

highly

emo-

tional and unsubstantiated societal assumptions

about homosexual parents, increases the possi-

bility of judicial abuse that may be both unfair

to the homosexual parent and detrimental to

the

child. For this reason, we offer

an

alternative

view of handling child custody cases where the

mother is known by the court to be

a

lesbian.

The fact that the mother

in

a child custody

case

is

a lesbian may be offensive to

the

values

and beliefs of the presiding judge. However,

given

the

importance of the decisions

that

judges must make,

it

is essential that they care-

fully evaluate their responses to the mother's

homosexuality

in

an attempt to separate fact

from fiction as

it

applies to the specific case

before them. While Judge Campbell may be cor-

rect that judges should be "forewarned and

forearmed" to the peculiar problems a homo-

sexual parent brings to a custody case,

it

seems

to us

that

judges must also be forewarned to

their own prejudices and those of other people,

such as court investigators, who may be in-

vclved in such a case.

In approaching a child custody case in

which one parent is known to be homosexual,

there are three areas to which the judge should

give considerable thought:

1)

the

impact of societal and individual preju-

dices and assumptions on

the

conduct of

the

case;

2)

the application of the best interests of the

*Donna

J.

Hitchens is an attorney in private practice in

San Francisco, California; Del Martin is co-author

of

"Les-

bian Women" and "Battered Wives"; Mary Morgan

is

an attorney

in

private practice in San Francisco, California,

specializing in domestic relations.

child standard to the case; and

3)

the conduct of the trial.

Although Judge Campbell recognizes that

homosexuality per se "does not constitute a

mandatory disqualification for child custody,"

he expresses certain assumptions about the na-

ture of homosexuality that are more myth than

fact. For example, he condones separating a

woman from her lover as a condition of custody

and assumes the child will suffer from social

stigmatization if allowed to reside with the

mother. The tone

of

Judge Campbell's article

suggests that

he

does not believe that

a

homo-

sexual could be as good

a

parent as

a

hetero-

sexual.

One of the fears and assumptions common

to

a

lesbian mother custody case is the concern

that

the

moral and psychosexual development

of children will be detrimentally affected by

placement

with

a homosexual parent. Many

people erroneously believe that such children

will

automatically grow up to be homosexual,

that they

will

be ostracized by their peers, and

that homosexuals are, per se, mentally

ill

and

should not be allowed to care for children. Con-

trary to Judge Campbell's belief, there is con-

crete evidence that contradicts these assump-

tions.

While Judge Campbell observes

that

the

American Psychiatric Association considered

homosexuality

a

"personality disorder" in

1968,

he

failed to mention that in 1973 the

same organization totally deleted homosexuality

from its list

of

mental disorders. The American

Psychological Association, the National Associa-

tion of Social Workers and

the

American Public

Health Association have all adopted similar posi-

tions. These decisions by professional mental

health organizations were based on scientific re-

search which showed no significant psycho-

logical differences between heterosexuals and

homosexuals. See Thompson, McCandless and

Strickland, "Personal Adjustment of Male and

Female Homosexuals and Heterosexuals," 78

27

CONCILIATION COURTS

REVIEW

/

VOLUME

17,

NUMBER

3

/

DECEMBER

1979