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Custody Cases—The California Move-Away Case. Part 5: Sexual Orientation of the Parent(s)

This blog post is Part 5 in my 6-part blog series dealing with California custody move-away cases.  As stated in Parts 1, 2, 3 and 4  of this series, about 65% of the inquiries I receive in my California Family Law Practice deal with custody matters.  California move-away cases are under the umbrella of custody. Part 5 of this blog series seeks to focus on the sexual orientation of the parent(s) and how this factor affects California move-away cases.

Evolution of California Law Regarding Sexual Orientation of a Parent

Prior to the enactment of California legislation establishing the rights of couples to register with the California Secretary of State as domestic partners in 2003, courts had ruled that a party’s sexual orientation could not, in itself, be a determinative factor in issuing custody orders. Instead, the court considered it as a factor, insofar as the court found it relevant in making a determination on the best interest of the child.  For instance, in the case of Marriage of Birdsall, the court of appeals reversed the lower court’s ruling when they set a restriction on the homosexual father from exercising overnight visitation with his son in the presence of anyone known to be a homosexual. It was reversed by the appellate court for lack of showing of detriment to the child. (Marriage of Birdsall (1988) 197 CA3d 1024, 243, CR 287.) In another case, a court of appeal noted that a mother’s homosexuality was only one of multiple factors justifying a custody award to the mother’s parents, but the court of appeal also stated that the lower court could properly conclude that the permanent residence with a homosexual couple would be detrimental to children and contrary to their best interest. (See Caffin v. Frye (1975) 45 CA33d 39, 45, 47, 119 CR 22.)  It is important to note year these cases were published—long before the issue of same-sex marriage came into the tapestry of the California and American politics.

Let’s examine some of the more recent changes that have taken place since the 60’s and 70’s:

  • Same sex couples can register as domestic partners and receive the same entitlements and rights and obligations with respect to a child  of either of them as spouses. (Family Code section 297.5(d)).
  • Nonregistered same-sex partners can be considered parents to children of their relationship (Elisa B. v Superior Court (2005) 37 C4th 108, 122, 33 CR3d 46);
  • The Supreme Court has sanctioned (approved) the adoption by a second parent of the same sex as the natural parent (Sharon S. v. Superior Court (2003) 31 C4th 417, 2 CR3d 699);
  • The Supreme Court has effectively made same-sex marriages legal in California (In re Marriage Cases (2008) 43 C4th 757, 76 CR3d 683). This issue is in a bit of flux at this time, however, because of a current initiative measure to amend the California Constitution to declare that only marriages between one man and one woman are valid and recognized in California (Proposition 8) which was passed on November 4, 2008. The validity of Proposition 8, which added a new section to article I of the California Constitution, was challenged and upheld by the California Supreme Court as a permissible constitutional amendment rather than an “impermissible constitutional revision.
  •  The matter is going to go before the U.S. Supreme Court. (Check back to this blog to keep current on this fluctuating area of law.)


Let’s consider some statistics:

And, when you go on any major search engine, such as Google or Bing, it’s not hard to find tens of thousands of articles about the number of states and countries legalizing same-sex marriage. The numbers continue to grow with the passage of each month! In today’s milieu, same-sex marriage cannot be ignored!  It’s my opinion that it’s just a matter of time when the majority of states (and countries) will legalize same-sex marriage. The tide is definitely changing!

What does this tell us?  It tells us that are legislature and politicians are no longer turning a blind eye to homosexuality or the need for same-sex marriages. As most Americans know, President Obama stated publicly that he supported same-sex marriage—our President!  That would have never happened 50 years ago.  For this reason, it’s become practical, if not necessary, for the California courts to put little significance on the sexual orientation of the parent and more emphasis on the detriment or best interest of the child. As with heterosexual parents, there will be instances when the sexual conduct of the parent will cause detriment to the child or not be in the child’s best interests.  In other words, it’s not the sexual orientation, but the sexual behavior that matters most.


In sum, sexual orientation of a parent is not a factor if it does not affect the best interest of the child.  Instead, the  California courts will look to anything and everything that affects the best interests of the child, e.g. the  parent’s behavior (not  orientation).

If you would like to discuss your case with an experienced family law attorney, please contact us.

The Move-Away Series–All

Custody Cases—The Move-Away Case. Part 1–The Child’s Need for Stability and Continuity

Custody Cases–The Move-Away Case. Part 2–When the Moving Party Has Sole Physical Custody

Custody Cases–The Move-Away Case. Part 3–Custody Cases—When the Moving Party Shares Joint Physical Custody

Custody Cases–The Move-Away Case. Part 4–Part 4: Emotional Bonds & Race Effecting Move-Away Cases & Sexual Conduct of Parents

Custody Cases–The Move-Away Case. Part 5–Sexual Orientation of the Parent(s)

Custody Cases–The Move-Away Case. Part 6–Religious Practices

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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