This Commentary addresses how the legal rights of lesbian, gay, bisexual, and transgender (LGBT) children affect child custody disputes. The legal standard for determining child custody is the “best interests of the child” standard. This standard is subjective and highly discretionary. In cases concerning LGBT youth, judges must ultimately rely upon their own, possibly skewed conception of sexual orientation and gender identity and expression. Absent a strong assertion of the child’s rights, a judge could decide that being LGBT is undesirable and place the child with a parent who would discourage the child from growing into an LGBT adult.
To guide judges in their decision, this Commentary argues that, under Lawrence v. Texas, an LGBT youth possesses the constitutional right to be treated with respect equal to that afforded straight or cisgender youth in regards to their sexual orientation or gender identity and expression. After Lawrence, a judge may not consider becoming an LGBT adult as an undesirable outcome for a child in a child custody determination. Although the LGBT youth’s minority permits the state and parents to limit the youth’s rights in certain ways, there is no interest of sufficient weight to override the youth’s rights under Lawrence. In practice, the youth’s rights weigh in favor of placing an LGBT youth with the parent most capable of helping the youth develop into a healthy, autonomous LGBT adult.
Matthew J. Hulstein,
Commentary: Recognizing and Respecting the Rights of LGBT Youth in Child Custody Proceedings,
27 Berkeley J. Gender L. & Just.