Sexual Orientation, Religion or Handicap Affect a Child Custody Case?

Sexual Orientation, Religion or Handicap in a Child Custody Case

Let’s tackle three issues that we see come up every once in a while in child custody cases. These issues are a parent’s sexual orientation, religious practice, or physical handicap. Our experienced child custody lawyers have successfully handled these sometimes complex and often contentious child custody cases that have had one or more of these three issues. What we are about to share with you is not just a law but also what our child custody lawyers have seen from our actual professional experience in Family Court.

First, let’s address sexual orientation of a parent. We all know that Orange County is a conservative County and our elected officials and courts are known to lean toward what is traditionally regarded as conservative values. But what role does that play in Family Court when issues such as sexual orientation are brought up by one parent who claims the other parent’s gay or lesbian sexual orientation or lifestyle is detrimental to the children.

Since 1988 when important California appellate decisions came down, courts have consistently held that a parent’s homosexuality cannot by itself be a determining factor in a custody case. As the issue of sexual orientation has become more and more open and in the public eye, our child custody lawyers have seen the issue become nearly a non-factor in custody determinations. That is because sexual behavior, whether heterosexual or homosexual, is deemed by family law judges to be irrelevant to a child’s best interests. Unless the sexual conduct places a child in physical danger, such as sexual abuse, family law judges generally do not care whether a father or a mother engages in homosexual conduct.

Second, let’s talk about a parent’s religious practice. Family courts are not permitted to deny to a parent custody or visitation on the basis of that parent’s religious beliefs or practices unless there is compelling evidence that the beliefs and practice will be harmful to the child in some significant way. Courts generally will not prevent a parent from talking to a child about religion or engaging the child in a religious practices so long as the religious practice itself does not amount to a crime or place the child in physical danger or subject the child to psychological abuse.

You may guess that this is partly based on our United States Constitution and you would guess correctly. A person’s religious practice is protected by the First Amendment and no California family law judge has the right to interfere with that practice in a family law case without that compelling evidence that the child is being placed in danger. Our child custody lawyers have never seen a family law judge deny or limit custody based on religious practices.

Finally, we get to the issue of physical handicap. You may think that physical handicap has to be a factor in a child custody hearing because the handicap may interfere with a parent’s ability to effectively take care of the child or children. While that is partially correct, family courts are forbidden from basing custody decisions solely on one parent’s physical handicap. It can be nothing more than one factor that the court considers when it looks at the entire family dynamic and the care necessary for the children. The far majority of the time, unless there is compelling evidence that a parent with a physical handicap cannot care for the basic needs of a child, our child custody lawyers have not seen a court reduce or in any way limit a handicap parent’s custody time.

If you are a parent in a child custody matter and your custody rights are being threatened as a result of your sexual orientation, religion or physical handicap, our child custody lawyers can put a stop to the threats and protect your rights.

We offer an affordable consultation. Do not hesitate to contact our experienced and knowledgeable child custody lawyers if you have any questions. 

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