"In the Best Interests of the Child": Lesbian and Gay Parenting Custody Cases, 1967-1985

Article excerpt

On November 15, 1967, Ellen Nadler appeared before the honorable Justice Joseph Babich in the Superior Court of California, Sacramento County. It was the second time in two months .she had argued for custody of her five-year old daughter. A little more than a month earlier, on October 5, Justice Babich had awarded custody of the child to Nadler's ex-husband solely on the basis of the mother's lesbianism. The judge had done so without hearing any additional evidence in the case, stating that, "the homosexuality of plaintiff as a matter of law constitutes her not a fit or proper person to have the care, custody and control of ... the minor child of the parties hereto." (1) Ellen Nadler's trial marked the beginning of decades of lesbian mother and gay father custody cases, as men and women fought for the right to express their same-sex sexual orientation and remain parents at the same time.

This article examines the early history of lesbian and gay custody conflicts from 1967 to 1985 through an analysis of one hundred and twenty-two cases in which lesbian or gay parenting was an issue, based on court transcripts, newspaper articles, oral histories, professional journals, personal letters, and lesbian and gay periodicals. It argues that institutional anti-gay and lesbian prejudice constructed same-sex sexuality as antithetical to patenting, actively stripped many lesbians and gay men of their parental tights, and kept a whole generation of lesbian and gay parents in fear of being estranged from their children. It further shows, however, that these gay and lesbian custody battles slowly chipped away at legal and social prejudices. In the 1970s, as large numbers of lesbians and gay men openly declared their sexuality, they challenged the longstanding cultural assumption that lesbians and gay men could not be parents. The greater visibility of gay and lesbian communities increased the risk of exposure and therefore loss of custody for many lesbian and gay parents, and in the eighteen years between 1967 and 1985, lesbian and gay parents lost many mote court battles than they won. By 1985, however, an increasing number of state courts were overturning decisions that had denied lesbian mothers and gay fathers custody and visitation rights. This essay examines these critical early years of custody cases to reveal the powerful cultural link between sexual orientation and the family and its slow and arduous shift. Lesbians and gay men had to fight hard to change the perception of parenting as exclusively heterosexual and the legal practices that supported it. Their uphill battle is an important part of both why and how domestic, parental, and marital rights came to be at the center of the modern lesbian, gay, bisexual, and transgender (LGBT) civil rights movement by the end of the twentieth century. (2)

The majority of cases from 1967 to 1985 involved men and women who had left heterosexual marriages. Gay fathers usually fought for visitation rights while lesbians fought for either visitation or outright custody. Gay fathers were often estranged from their children for years as a result of court orders secured by ex-wives or other family members. (3) Both lesbian mothers and gay fathers lost custodial rights regularly, and even when they were allowed to spend time with their children, they often did so at the expense of their constitutional rights of association, in the form of prohibitions against being with their same-sex partner and their children at the same time or participating in lesbian and gay activism or social events.

When lesbian mothers and gay fathers came out in the process of a divorce from heterosexual spouses, they often faced the immediate danger of losing custody of and even contact with their children. At this time, even those lesbian and gay parents who tried to hide their sexual identity came under increased scrutiny by ex-spouses, both because there was a greater awareness of same-sex sexual orientation in society in general, and because after leaving their heterosexual marriages they often relocated to gay and lesbian neighborhoods, such as San Francisco's Castro District or New York's Greenwich Village. …