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

Rivers, Daniel, Journal of Social History

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. Once visible in a lesbian or gay community, the risk was much greater that ex-spouses or family members would use their sexual orientation against them in a custody dispute.

The various components that made up judicial prejudice against lesbian mothers and gay fathers in these custody cases were familiar ones in U.S. society. They echo longstanding aspects of anti-gay and lesbian bigotry in the United States, including the belief that gay men and lesbians were more likely to be pedophiles, that they were emotionally irresponsible, that their children might be gay - which the courts assumed was a negative outcome - and that these children would face social stigma and psychological damage as the result of being raised by a lesbian or gay parent. These attitudes are similar to rhetoric that permeated legal decisions and campaigns against gay and lesbian teachers, the rounding up of gay men in the sex crime panics of the 1950s and 1960s, and the backlash against the lesbian and gay freedom struggle represented by the 1977 "Save Our Children" campaign in Dade County, Florida. (4) All of these reactions to lesbian and gay individuals and communities share fundamental fears about the proximity of children to same-sex sexual orientation, fears which had their most direct manifestation in the virulent animosity toward gay fathers and lesbian mothers in the courts.

Those custody cases involving lesbian and gay parents that are traceable represent only the tip of the iceberg. Due to child privacy concerns and a desire to have the latitude of judges unfettered by publicity, decisions largely went unpublished. Only when a decision was appealed did it become public. Appellate decisions, therefore, make up the majority of the historical record. Thus, with a few exceptions, we know little of lesbians and gay men who lost custody of their children outright and never appealed the original decision. In addition, the public record does not include the many custody cases that were settled out of court. The cases that did become known, however, often received a great deal of attention in both the mainstream and grassroots gay and lesbian community media, which meant that legal prejudice against lesbian and gay parents, as well as its gradual lessening, had a social impact far beyond the courtroom.

A slow decline in judicial bias against gay and lesbian parents occurred in the years between 1967 and 1985 for the same reason the cases emerged in the first place; as lesbian feminist and gay liberation movements energized and made lesbian and gay communities more visible, lesbian and gay parents lost custody of their children, but political activism in these communities also heightened opposition to these losses. Lesbian mother and gay father groups formed across the country, including politically active groups like Dykes and Tykes in New York City, the Lesbian Mothers Union (LMU) in Oakland, California, and the Lesbian Mothers National Defense Fund (LMNDF) in Seattle, Washington. Gay fathers groups, although less concertedly political than lesbian mother organizations, also provided personal support and financial assistance for members facing attacks on their parental rights. These organizations raised funds for lesbian mothers and gay fathers involved in custody struggles and worked with progressive attorneys such as Donna Hitchens and Roberta Achtenberg of the Lesbian Rights Project (LRP), Rosalie Davies from Custody Action for Lesbian Mothers (CALM), or Marilyn Haft with the American Civil Liberties Union's (ACLU) Sexual Rights Project, as well as political activists from organizations such as the National Gay Task Force (NGTF). The political and legal work these organizations pioneered was critical to the slow shift in custody decisions. It also played a fundamental role in turning the focus of the LGBT freedom struggle toward the rights of marriage and the family.

Also critical in the gradual movement towards greater acceptance of lesbian and gay parenting was the revaluation of same-sex sexuality within the field of psychiatry. (5) As psychiatrists and psychologists such as Judd Marmor, Richard Green, John Money, and Wardell Pomeroy fought to change the stance of the American Psychiatric Association (APA) on same-sex sexuality, they also argued that sexual orientation was irrelevant to fit parenthood. In the early 1970s, a few of these individuals, including Pomeroy, Money, and Green, began to testify on behalf of lesbian mothers and gay fathers in custody disputes, arguing that lesbians and gay men were not unlit to be parents because of their sexuality and would not cause psychological damage to their children. Lesbian mother activist groups and legal advocacy organizations often worked to put lesbian and gay parents facing custody battles in touch with these early sympathetic psychologists and psychiatrists.

By 1985, this social, professional, and legal activism on behalf of the parental rights of lesbians and gay men began to have an impact on custody rulings in the West and the Northeast, areas where men and women migrated as part of their coming-out process. States where sizable lesbian or gay communities had formed after the Second World War, such as California, Michigan, Pennsylvania, and New York, were early and frequent battlegrounds between gay and lesbian parents, their ex-spouses, and sometimes other family members, along with political, legal, and religious advocates on either side. (6) It was also in these locations that state supreme courts began deciding in favor of lesbian mothers and gay fathers by the late 1970s and early 1980s. Resistance to change was most visible in states traditionally dominated by Christian fundamentalism, such as North Carolina, Mississippi, Virginia, Oklahoma, and Texas. (7)

The call for custodial and parental rights from 1970 to 1985 was an important part of broader legal efforts that accompanied gay and lesbian liberation movements, and negative judicial reactions to lesbian mothers and gay fathers resembled court responses to other demands for lesbian and gay civil rights in the same period. Judges often criticized lesbians and gay men fighting for employment or privacy rights for discussing their cases with the press or for taking part in gay or lesbian political activities, factors also cited in many decisions denying lesbian mothers and gay fathers custody or visitation rights. (8) Judges also used state sodomy laws as justification for anti-gay and lesbian decisions in a whole range of cases, arguing that under these laws, lesbians and gay men were admitted criminals and therefore could not appeal to the legal system to uphold their rights to employment, privacy, or child custody.

This essay examines the animosity that lesbian mothers and gay fathers experienced in custody courts from 1967 to 1985, arguing that the prevalent judicial bias was that "the best interests of the child" always lay in a heterosexual household and that this bias effectively deprived lesbian and gay parents of their civil rights. This bias and the legal losses that came from it created an atmosphere of fear that affected not only those parents who lost custody but also an entire generation of lesbian mothers and gay fathers. However, lesbian and gay custody cases of this period also challenged and began to change the widely accepted notion that same-sex sexual orientation was antithetical to parenting, and a state-by-state shift in judicial, opinion became visible by the mid 1980s. (9)

The Denial of Custody

The 1967 Nadler rehearing exemplifies the ways in which the legal doctrine of "the best interests or the child" was frequently used as a smoke screen for judicial bias against homosexuality and a denial of parental rights to lesbians and gay men. Judge Babich's ruling in the case had been subsequently overturned by a California Court of Appeals, which objected to the assumption that homosexuality per se made someone an unfit parent. The appellate court demanded that Babich re-hear the case. The higher court did not necessarily disagree with his final award of custody to the father or the condemnation of lesbianism in a woman who also had children. It did find fault, however, because he had not exercised the "very broad discretion" at his disposal as a judge in a custody dispute. As a matter of law, Justice Babich had erred in not hearing all of the evidence in the case with "the best interests of the child" in mind; instead he had .simply declared lesbianism grounds for removal of custodial privileges with no further review.

There is little doubt that Ellen Nadler's sexual orientation was still on trial in the appeals proceedings. At the end of the long trial, during which the judge and the attorney for her ex-husband were both graphically preoccupied with her sexuality, Nadler again lost custody of her daughter. This time, however, the judge was clear in seating that it was because a heterosexual environment would be in "the best interests of the child," not because lesbian motherhood was against the law.

In demanding chat Judge Babich base …

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Publication information: Article title: "In the Best Interests of the Child": Lesbian and Gay Parenting Custody Cases, 1967-1985. Contributors: Rivers, Daniel - Author. Journal title: Journal of Social History. Volume: 43. Issue: 4 Publication date: Summer 2010. Page number: 917+. © 2009 Journal of Social History. COPYRIGHT 2010 Gale Group.

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