How do Sexual Orientation, Gender Identity or Expression, Religion or Disability Affect a Child Custody Case?

Do family law judges care about any of these when making a child custody ruling?

Sexual orientation, gender identity or expression, religion and physical disability collide with child custody

Even in 2021, the effect of sexual orientation, gender identity, gender expression, religion and physical disability cause contested or high conflict custody cases. Some of them, as you will read, still have "controversy" associated with them.

What the law states versus what happens inside a courtroom are not always the same.

Everything we write here comes from our extensive experience inside and outside of the family law courtroom and knowledge of California law, as it has evolved over the years and decades on these issues.

Sexual Orientation, Gender Expression, Gender Identity and Child Custody

We will first discuss sexual orientation, gender expression or identity and its impact on child custody.

How does sexual orientation, gender identity or gender expression come up in a child custody case?

The short answer is, "in subtle ways."

First, it is important to understand the backdrop of the family and "why" these issues come up.

If the parents are married, this issue comes up because one of the parents was allegedly surprised to learn about the other parent's sexual orientation, gender identity or gender expression.

That is why courts do not see these issues with same-sex couples or couples who went into the relationship with knowledge of these issues. There is no reason for sexual orientation, or gender identity or expression to come up in that situation.

Instead, the issue comes up because a father or mother claims the other parent is lesbian, gay, bisexual, or transgender and that parent claims this development may affect the child's best interest.

What does the parent who raises this issue of orientation, identity or expression hope to accomplish?

Most of the time, the parent who brings up the other parent's sexual orientation, gender expression or gender identity wants to use it to claim that parent engaged or engages in conduct that negatively affects the child's best interest.

The complaining parent may claim the court should not allow the other parent to have frequent or regular parenting time because he or she does not want the child or children "exposed" to the other parent's "lifestyle."

Sometimes, it is not the lifestyle that is an issue but specific words or actions about which the parent complains.

Does the law prohibit sexual orientation, gender identity or gender expression as a child custody factor?

Yes, the law specifically forbids consideration of a parent's sexual orientation as a factor in a family law judge's child custody decisions.

Family Code 3040(c) states the following:

"(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a)."

Clear enough, right? But does it really work that way? We discuss this in more detail below.

Do family law judges follow the law and disregard sexual orientation, gender identity or gender expression?

We cannot speak to what every family law judge does but we also believe this is a multi-part answer. We will break it down.

Sexual orientation

Being gay, lesbian or bisexual is more accepted today than it was twenty years ago.

The LGBTQ community has worked hard to demand acceptance, bar discrimination and break ignorant and dogmatic perspectives.

Those perspectives dominated many Americans as recently as the 80's and even 90's.

Unfortunately, there are still too many Americans who hold prejudicial views of the gay, lesbian and bisexual community or, put another way, men and women who are not heterosexual.

However, within the family court, sexual orientation by being gay, lesbian or bisexual does not hold a "shock" factor any more, because it is not "new."

As more men and women have come out as gay, lesbian, or bisexual, we believe it achieved a sense of normalcy. And normalcy means either acceptance or tolerance.

In our experience, there is no bias against a gay, lesbian or bisexual parent. By that we mean, we have not seen it adversely affect clients we have represented or cases we have witnessed.

However, "our experience" is just that - it is not every else's experience.

Gender identity or expression

First, it is important to understand how gender identity and expression differs from sexual orientation.

The "identity" in gender identity means how a person perceives themselves and what the person calls themselves. This may be the same or different from their biological sex.

The "expression" is how the person shows themselves to the outside world. This may be through how they act, what they wear, and more.

This often conflicts with what may be a dogmatic perspective of how a "man" or "woman" should act, what they should wear, how they should speak, and so forth.

"Transgender" is the broad term that captures both gender identity and gender expression. Being transgender does not mean the person has a specific sexual orientation. A transgender person may be heterosexual, homosexual or bisexual.

To learn more, read GLAAD's reference guide.

The transgender momentum is newer and may cause express or implied bias

We have listened carefully to how others in the legal community express their support or opposition to acceptance of transgender people. It reminds us of the same historical patterns of how gay, lesbian and bisexual people were treated a couple of decades or more ago.

While we cannot state with certainty there is or will be a bias against transgender people in a child custody cases, it would not surprise us if an implied bias permeated through court rulings.

This is especially true with "conservative" judges who, without ever saying it on the record, hold religion-based beliefs that "influence" their decisions. It was not long ago a judge's religion and rulings were front and center on a national scale with Amy Coney Barrett.

Do Family Courts Take a Parent's Religion Into Consideration?

Now let us look at a parent's religion and whether a family law judge can take it into consideration when ruling on child custody issues.

What does California law say about religion and child custody?

Family Courts are not permitted to deny a parent child custody or allow religion to be a factor in child custody decisions.

Our appellate courts have dealt with this issue several times, and as recently as 1996, which is not that long ago.

For example in 1996, one of California's appellate courts held a prenuptial agreement that attempted to dictate a child's future religious upbringing was not enforceable.

Courts have refused to allow religion as a factor in many circumstances.

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 compelling evidence the child is being placed in danger.

What if the parent's religious practices is harmful to the child?

Just because a Family Court cannot take religion into consideration does not mean the Court is powerless to protect children.

For example, let us assume a parent's religion compelled that parent to cut up live animals in their living room while the children watched.

I know, it is a gross and extreme example but the point should come across.

That type of practice is going to be harmful to a child and a Family Court may take child custody away from the parent if they intend to engage in that activity and expose the children to it.

There must be a compelling reason to deny custody or parenting time

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 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 practice 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.

Is this a fine line? I am sure you can think of far less extreme examples that you may believe is harmful to a child but a parent who holds such beliefs may think is "normal" or even required by his or her faith.

That is why the standard is a child's best interest with a focus on the health, education, safety and general welfare of a child. It gives the Court discretion to rule on such issues.

Have we seen religious discrimination in child custody cases?

We can honestly state we have never seen religion play a factor in a family law judge's child custody rulings.

And we have represented clients of nearly every religion, including some of the lesser known faiths.

Physical Disability and Child Custody

Finally, we get to the issue of physical disability. We will discuss how, if at all, physical disability may affect a California family law judge's child custody ruling.

Does the California Family Code prohibit a parent's physical disability as a child custody consideration?

Not exactly - it is not a prohibition. We will explain in two parts.

California Family Code 3049 states the following.

"It is the intent of the Legislature in enacting this section to codify the decision of the California Supreme Court in In re Marriage of Carney (1979) 24 Cal.3d 725, with respect to custody and visitation determinations by the court involving a disabled parent."

What is Marriage of Carney? That is a 1979 California Supreme Court case that came down on this issue.

The Supreme Court in Carney wrote:

"In particular, if a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child; rather, in all cases the court must view the handicapped person as an individual and the family as a whole.

To achieve this, the court should inquire into the person's actual and potential physical capabilities, learn how he or she has adapted to the disability and manages its problems, consider how the other members of the household have adjusted thereto, and take into account the special contributions the person may make to the family despite -- or even because of -- the handicap.

Weighing these and all other relevant factors together, the court should then carefully determine whether the parent's condition will in fact have a substantial and lasting adverse effect on the best interests of the child.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."

In short, it may be "a" factor, but it is not "the" factor and the focus is how it may affect that parent's ability to care for the child.

When would a parent's physical disability affect his or her ability to care for a child?

In the modern age of more accessibility and technology that allows physically handicapped (disabled) men and women to live more enriched lives, it is doubtful a situation other than an extreme one would prevent a physically disabled parent from caring for his or her child.

For example, if a parent's physical disability caused him or her to be hospitalized in-patient for an extensive time, that would prevent the disabled parent from exercising parenting time.

However, even that extreme does not prevent a parent from seeing the children. The Court would be within its discretion to order regular and frequent communication and proper in person or virtual visits.

Bonus issue - what if a child's sibling is disabled?

California Courts have dealt with this issue and held a sibling's disability does not allow the family law judge to assume that will harm the non-disabled child. Again, the focus must be the balancing test.

This came up in 2004 in a California appellate court case where the appellate court stated the trial court made an error in separating two brothers because the judge believed the autistic child's behavior negatively affected his brother. The trial court had no factual basis for its ruling.

In 2019, the California Supreme Court again struck down a lower court's error. The Supreme Court held the mother was correct when she stated the trial court made an error when "it determined that by granting her sole legal and physical custody of her severely disabled daughter, she was rendered incapable of maintaining joint legal and physical custody of her two younger children."

If you are a parent in a child custody matter and the issues of sexual orientation, gender identity or expression, religion or physical disability are part of your custody case, our child custody lawyers can help.

We offer an affordable strategy session and highly experienced representation.

Our family law firm has offices in Los Angeles, Orange County and San Diego.

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