Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles

Disputes over custody and visitation can arise when a marriage ends and one parent comes out as gay or lesbian. the heterosexual parent may seek custody or may seek to restrict the activities of the gay or lesbian parent, or the presence of the parent\u27s same-sex partner, during visitation. A gay or lesbian parent\u27s assertion of constitutional rights has not been an effective response to such efforts. that is not likely to change. Advocates for gay and lesbian parents have argued forcefully for a nexus text, permitting consideration of a parent\u27s sexual orientation only when there is evidence of an adverse impact on the child. this Essay argues that the nexus test should be replaced with a rule that disallows consideration of a parent\u27s nonmarital sexual relationship in custody or visitation disputes. the nexus test implies that a child might be uniquely harmed because a parent is gay or lesbian or because a parent has a new unmarried partner. This implication is inappropriate. A court can evaluate a child\u27s relationship with a significant person a parent has introduced into the child\u27s life; that evaluation should not turn on whether that person is a spouse or a nonmarital partner. the court can also examine any decision a parent makes that causes harm to a child. It is misplaced to articulate a distinct test for scrutinizing a parent\u27s relationship with a nonmarital partner