[warrior1981]

I have a son under seven years old. I have been separated for two years and currently have a temporary custody agreement. I am a lesbian, and my ex-husband knows it. Could my sexual preferance affect the custody I currently have of my son. I am plannig to get divorced before the end of this year?

[jammie232]

Check out Lawrence v. Texas Child Custody. It was too long for me to read. Texas
Has a past of working against gays in the court of law. Maybe it's different now.
Pretty scary... but most courts go for the straights, no matter that the mother is
Probably the better parent.

[stevetcg]

If so, you will have one heck of a civil rights case on your hands against the state, his lawyer and probably him as well.

Get a good lawyer. It *shouldnt* even be allowed to be mentioned in court since sexual orientation is not grounds for being a parent. That would be like saying you can't be a good parent if you were black. Totally illegal to even suggest.

And totally wrong.

[cadillac59]

I have a son under seven years old. I have been seperated for two years and currently have a temporary custody agreement. I am a lesbian, and my ex-husband knows it. Could my sexual preferance affect the custody I currently have of my son. I am plannig to get divorced before the end of this year?

It certainly cannot have a bearing on custody in California. And I would very much doubt that any court anywhere in the country could use this against you and be able to withstand a constitutional challenge to such a policy. So, frankly I wouldn't worry about it.

[cdad]

If so, you will have one heck of a civil rights case on your hands against the state, his lawyer and probably him as well.

Get a good lawyer. It *shouldnt* even be allowed to be mentioned in court since sexual orientation is not grounds for being a parent. That would be like saying you can't be a good parent if you were black. Totally illegal to even suggest.

And totally wrong.

I have a problem with part of this answer. There is a huge difference from inffering something onto a person because they happen to be black VS they happen to be gay. A persons sexual orientation isn't known unless its spoken of. For a person of color its rather obvious what's going on. You can't hide that. So I disagree with that part of the comment.. it's a apples and oranges type of statement.

[stevetcg]

jammie232 disagrees: any gay person would tell you the real deal....it involves discrimination of gays though less overt these days

Ironic, since Caddy is an openly gay man.

[cadillac59]

Ironic, since Caddy is an openly gay man.

Thank you. I was just about to point that out! However, I don't think the participant was aware. LOL.

Don't forget I said, "I would very much doubt that any court anywhere in the country could use this against you and be able to withstand a constitutional challenge to such a policy." The point is I don't think any trial court's decision to use a parent's sexual orientation as a reason to determine custody would survive an appeal.

This is such an old, really old issue that I am sure there is ample Texas precedent on the subject for anyone who has the time and the interest to look it up.

Just as an example, the question this OP asked was decided in California over 40 years ago in Nadler v. Superior Court (1967) 225 Cal. App. 2d 523. "Nadler determined a parent's homosexuality does not, without more, allow a court to deprive him or her of primary custody". Marriage of Birdsall (1988) 197 Cal. 3d 1024.

I'm sure that Texas has a very similar, if not identical rule.

[Fr_Chuck]

Actually not all states are that accepting

In NC for example, In Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), the North Carolina Supreme Court it stated that merely being homosexual is not enough to prohibit the custody but life style within the home, living unmarried with another person, or parts of life style can be considered.

In Texas prior to 2003 it was a factor, since at that time, homosexual behavior was considered illegal under Texas sodomy laws , thus the person who was homosexual was breaking the law, thus not fit for custody of the child
This was changed ( by only a 5 to 4 vote of Texas Supreme court) in Lawrence vs Texas.

But remember this was just back in 2003 so most judges still sitting on the bench may have personal beliefs that will come out.

In Texas the standing rule is still what in the opinion of the judge is the best atmosphere for the child.