Over the past decade or so, gay rights has been one of the fastest-changing areas of the law in the nation’s history, especially in California. And of course, gay rights incude rights with respect to child custody, visitation, child support payments and even adoption. The following is a brief description of California law as it stands in 2019.
Discrimination vs. the “Best Interests of the Child”
Traditionally, the “best interests of the child” has been the determinative principle in child custody decisions. Although the sexual orientation of either parent has long been considered a factor in determining the best interests of the child, with the legalization of gay marriage in California (in 2008) and nationwide in 2015 with the decision in Obergefell v. Hodges, discrimination against gay people has been sharply circumvented.
Consequently, the sexual orientation of the parents has become less important in child custody decisions. In fact, strictly speaking, in California, the sexual orientation of the parents is irrelevant to the determination of the best interests of the child. Courts are expected to treat gay parents the same as heterosexual parents when making such decisions.
California Family Code Section 3011 and the “Best Interests of the Child”
When determining child custody, support and visitation based on the “best interests of the child,” California courts will apply California Family Code Section 3011, which includes certain enumerated factors. Although the wording of these factors has not changed since Obergefell was decided in 2015, the California Supreme Court’s interpretation of the wording has changed to eliminate any discrimination based on the sexual orientation of the parents.
Legal Factors That Judges Must Consider under Section 3011
Under Section 3011, a family court must consider the following factors when determining the “best interests of the child”:
The health, safety, and physical and emotional welfare of the child
Domestic violence or substance abuse by either parent
The quality and quantity of contact with both parents
The child’s age
Each parent’s ability to care for the child
The emotional relationship between each parent and the child
The child’s living arrangements
The child’s schooling arrangements
The child’s social involvement
Of course, it is always possible that a judge with personal objections to gay parenting may discriminate against a gay parent in child custody proceedings. This will be most likely by framing his or her decision in terms of one or more of the foregoing factors rather than directly admitting that the sexual orientation of one of the parents played a role. This is atypical, but it does happen from time to time.
CKB Vienna Will Help You Fight for Justice
If you are a party to a child custody dispute involving a gay parent (including yourself), if you are even anticipating becoming a party to such a dispute, or if you feel that you have been unfairly discriminated against in such proceedings due to your or the other parent’s sexual orientation, telephone CKB Vienna today or contact us online to schedule a consultation where we can discuss your case.
We serve clients in Rancho Cucamonga, San Bernardino County, Los Angeles County, Orange County, and Riverside County.