Does sexual orientation (lesbian, gay, bisexual, transgender) matter in a child custody cases?
In establishing a parenting plan, courts look to the factors in Florida Statutes §61.13. A court’s determination is governed by what is in the child’s best interests.
61.13(3), in relevant part, provides: For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(f) The moral fitness of the parents.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
In Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000), the court was faced with issues of religion and the mother’s sexual orientation. Specifically, there was testimony about the children’s religious teachings and the mother’s sexual orientation. The trial court also made comments, in its ruling, that the community generally has problems with individuals who are not heterosexual. The Court held that, for a court to properly consider conduct such as Mrs. Jacoby’s sexual orientation on the issue of custody, the conduct must have a direct effect or impact upon the children. See Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996). “[T]he mere possibility of negative impact on the child is not enough.” Id. at 543. The connection between the conduct and the harm to the children must have an evidentiary basis; it cannot be assumed. But even if the court’s comments about the community’s beliefs and possible reactions were correct and supported by the evidence in this record, the law cannot give effect to private biases. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); cf. Department of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (Fla. 2d DCA 1993) (stating that private biases against homosexuality are not a permissible rational basis to support statute banning homosexuals from adopting), approved in part, quashed in part, 656 So.2d 902 (Fla.1995). Moreover, even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual. See Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (1987); M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979). The appellate Court held that the circuit court’s reliance on perceived biases was an improper basis for a residential custody determination.
