Pennsylvania ends discrimination against gay and lesbian parents...in 2010!?

There's some truth to the red state-blue state divide when it comes to LGBT parents, but the law is actually more complicated than that. My post last week about Kentucky's recognition of a two-mom family is one example of a red state clearly understanding and respecting the families we create. Then there's the Pennsylvania case, also from last month, overruling a 25 year old opinion disfavoring a gay or lesbian parent in a custody dispute with a heterosexual parent. Who realized there was such a disadvantage in Pennsylvania until this year?

Same-sex couples having children through assisted reproduction dominates a lot of the public attention to LGBT families, so many people may overlook what still is likely the most frequent dispute over gay parenting to hit the courts: A married heterosexual couple with children splits up; one parent comes out; the other uses the parent's sexual orientation as a basis to gain an upper hand in a dispute over custody or visitation. I don't have statistical proof that this is still an everyday occurence, but I believe it is. The number of people who grow up, get married, have children, and then come out remains significant. (One of the Perry plaintiffs, Sandy Stier, meets that profile.) A heterosexual ex-spouse who is either homophobic or strategic (or both) may try to use the other parent's sexual orientation to get custody or impose supervised or restricted visitation rights.

Which brings me to M.A.T. v. G.S.T., an appeal from an August 2008 order from a Pennsylvania trial judge awarding primary custody of a 3-yr-old daughter to a heterosexual father. The lesbian mother was given every other weekend visitation and six weeks in the summer. A custody evaluator had recommended joint custody or, if the judge rejected joint custody, primary custody to the mother. The trial judge's order specifically said that "when weighing [Daughter's] best interests between the two households we believe those interests are better served by placing her in a traditional heterosexual environment." The judge relied on the 1985 case, Constant A. v. Paul C. A., and a subsequent 1991 case, for placing the burden on the gay parent to prove that the child would not be harmed by being exposed to a gay relationship. The mother had not offered evidence that her relationship would not have an adverse effect on her daughter, so the judge ruled against her.

That's the bad news, and it's really bad. The good news is that the appeals court reversed, and in doing so explicitly overruled Constant A. and the cases that had followed it. "A homosexual parent," the appeals court ruled, "bears no special evidentiary presumption in a child custody case." The Constant A. presumption had been based on

"unsupported preconceptions and prejudices -- including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship. Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court."

Now Pennsylvania allows second-parent adoption and also recognizes some legal rights and responsibilities for a nonbiological mom who raises children with her partner but does not adopt the children. That was true long before 2008. Yet the Constant A. presumption lingered until this year. What accounts for this? I've got two thoughts. The first is that the presence of a heterosexual option presents a judge with a different circumstance than that of a lesbian couple raising children, whether they are still together or not. The pull towards placing a child with a heterosexual parent when that is available may be irresistible, even to judges who tolerate gay couples raising children.

Beyond that, there's the judge-by-judge nature of family court practice. No matter what the law on the books, a judge hearing a custody dispute can make factual findings that will be hard to reverse on appeal. When a divorcing parent faces the prospect of going to court over custody, the attitudes of the judge who will hear the case matter more than all the statutes and appeals decisions in the state. The judge in M.A.T. left no doubt about his reasoning, and that made reversal easy. But, even so, the child in the case has lived with her straight father almost a year and a half. Most parents are risk-averse, and the prospect of losing custody in the trial court and maybe winning years later on appeal is not an inviting one. So a lesbian mother or gay father may settle for less than she or he wants to avoid the possibility of a worse result.

The M.A.T. case is a reminder that the legal issues raised by the relatively new family form of a same-sex couple planning for and raising a child together do not eliminate, and should not eclipse, the remaining barriers facing a gay parent who wants his or her old-fashioned custody dispute with an ex-(heterosexual) spouse decided without stereotypes or bias.