Campaign: Stand for Marriage
With Supreme Court rulings expected soon, show your support for marriage equality.Take Action
Courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There have been no cases dealing with transgender parents. The state Supreme Court has held that when a same-sex couple deliberately has a child through assisted reproduction both partners are the legal parents.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
California courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. California law states: “Custody should be granted in the following order of preference according to the best interest of the child: … (1) To both parents jointly … or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent … and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. "This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. … "In making a determination of the best interest of the child … the court shall, among any other factors it finds relevant, consider all of the following: (a) The health, safety and welfare of the child. (b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse or co-habitant of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. (c) The nature and amount of contact with both parents. … (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities or other public agencies or non-profit organizations providing drug and alcohol abuse services. … The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.”
In one 1988 case, Birdsall v. Birdsall, a gay father’s overnight visitation with his children was conditioned on “no known homosexual being present.” The appellate court held that absent a showing of harm or likely harm to the child, a parent’s visitation rights cannot be restricted. In this case, there was no evidence presented that demonstrated harm to the child that could be attributed to the father’s sexual orientation, and there was no evidence of future harm.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
In a 1997 unpublished case, Vecchione v. Vecchione, the Orange County Superior Court upheld the validity of a marriage between a female-to-male transsexual and his female spouse and awarded joint child custody to both parents.
Custody and Visitation for Same-Sex Co-Parents
When a same-sex couple deliberately has a child through assisted reproduction, both partners are the legal parents. Custody and visitation decisions are based on the best interests of the child.
In 2005 the state Supreme Court, in a trilogy of cases, held that when a couple has a child through assisted reproduction, both partners are legal parents. In Kristine H. v. Lisa R., the state Supreme Court ruled that the birth mother, Kristine, could not challenge a court judgment that declared her and her former partner to be the legal parents of the child they had during the relationship through assisted reproduction. In Elisa B. v. Emily B., the court found that the same-same partner, Elisa, was a legal parent and should be held to the duties and responsibilities of a legal parent. In this case, Emily gave birth to twins who had no biological connection to her same-sex partner, Elisa. The relationship ended, and Elisa continued to provide child support for a period of time, and then stopped. And in K.M. v. E.G., the court held both partners to be the legal parents. K.M. had donated her eggs so that her partner, E.G., could bear a child through in vitro fertilization. After the relationship ended, K.M. petitioned to be declared a parent.
In a 2000 case, Guardianship of Olivia J., Karen petitioned for guardianship of a child born to her former domestic partner, Jennifer. Karen had not adopted the child. The trial court dismissed the petition. The appellate court reversed this decision and sent it back to the trial court for further proceedings. The appellate court ruled that the Karen’s status as a non-parent did not preclude her from filing a guardianship petition. The burden for a non-parent, however, is a heavy one — she had to show that Jennifer’s parental custody was detrimental to the child. The court held that “the loss of a relationship with a non-parent, who has acted as a de facto, or psychological, parent, is a factor the court may consider in determining whether parental custody is detrimental to the child.”
In a 1999 case, Guardianship of Z.C.W., a lesbian was denied visitation of her former same-sex partner’s children. While the court acknowledged that she was a de facto parent, or psychological parent, they concluded that absent any legislation or other court cases granting a non-parent visitation rights over the objection of the biological parent, and in the absence of any showing of detriment to the child, they could not grant those rights.
In two cases, West v. Superior Court of Sacramento Co. in 1997 and Nancy S. v. Michele G. in 1991, the Court of Appeals ruled that former same-sex partners who do not have a biological or legal relationship with the children of the former relationship do not have standing to obtain parental rights (visitation and custody). In Nancy S., a same-sex couple had a child during the relationship. After the relationship ended, the biological mother, Nancy, was determined to be the only parent of the child. Her former partner, Michele, appealed, arguing that that she was a de facto parent. The appeals court stated that indeed she may be a de facto parent, but that did not mean she had the same rights as a parent to seek custody and visitation over the objections of the child’s natural mother. The court reviewed the cases in this area and concluded that even if non-parents qualify as de facto parents, it is in the context of them being recognized in guardianship or dependency proceedings and sometimes even obtaining custody of children — but only if it is established by clear and convincing evidence that parental custody is detrimental to the children. The appeals court upheld the decision of the trial court.
In a 1990 case, Curiale v. Reagan, a same-sex couple had executed a written agreement stating they would share physical custody of the child born during their relationship. After the relationship ended, the biological mother, Robin, refused to allow her former partner, Angela, to visit the child. Angela petitioned the court to give effect to the written agreement. The trial court declined and held that it had no jurisdiction to award custody or visitation since Angela had no right to custody. The appeals court upheld this decision.
Citations: CAL. FAM. CODE §3040; CAL. FAM. CODE §3011; Birdsall v. Birdsall, 197 Cal. App.3d 1024 (Cal. Ct. App. 1988); Stuart Pfeifer, “Transsexual Can Sue for Custody,” Orange County Register, Nov. 26, 1997 at B1; Kristine H. v. Lisa R., 16 Cal. Rrpt. 3d 123 (Cal. Ct. App. 2004); Kristine H. v. Lisa R., 2005 Cal. LEXIS 9064 (Cal. 2005); Elisa B. v. Emily B., 2005 Cal. LEXIS 9065 (Cal. 2005); K.M. v. E.G., 2005 Cal. LEXIS 9066 (Cal. 2005); Guardianship of Olivia J., 101 Cal. Rptr.2d 364 (Cal. Ct. App. 2000); Guardianship of Z.C.W., 84 Cal. Rptr. 2d 48 (Cal. Ct. App. 1999); West v. Superior Court of Sacramento Co., 69 Cal. Rptr.2d 160 (Cal. Ct. App. 1997); Nancy S. v. Michele G., 279 Cal. Rptr. 212 (Cal. Ct. App. 1991); Curiale v. Reagan, 272 Cal. Rptr. 520 (Cal. Ct. App. 1990).
Updated: Thu, December 14, 2006 - 1:00:07
With Supreme Court rulings expected soon, show your support for marriage equality.Take Action
Read and download our new report on the experiences of nearly 2,000 LGBT Latino youth.Learn More