Custody Issues for Gay & Lesbian Parents

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by Margaret Buist

In the last two years both federal and Ontario laws have changed significantly to grant many new legal rights to same-sex partners. For example, same-sex partners can now claim spousal support on separation, survivor benefits on the death of a partner or spousal income tax deductions.

Custody and access laws in Ontario have not changed. Anyone, regardless of his or her sexual orientation, can claim custody of or access to a child as long as the relationship is in the best interests of the child. Courts are more concerned about the history of care for the child, the bond of love and affection with the child, or the future plan of care for the child than the sexual orientation of the person claiming custody or access. The recent granting of new legal rights to same-sex partners may help to end the discriminatory views of judges where they still exist. However, the right to claim custody and access has not changed.

The nature of custody and access disputes in the gay and lesbian community has shifted in the last ten years. The focus used to be on helping women keep custody of their children when they left heterosexual relationships and identified as lesbians. Judges would often grant custody to the father out of a homophobic belief that exposure to the mother's lesbianism would negatively affect the children. Now the focus is more often on custody and access disputes between lesbians who have had children within their relationship. There have been many cases in North America in the last few years where the biological lesbian mother has sought to exclude the non-biological mother from access to their children on separation. Unfortunately, in many cases, the biological mothers have been successful in convincing courts that they are the only mother and have been granted sole custody with either no access or limited access to the non-biological mother.

Fortunately, adoption laws have changed in Ontario and can provide at least part of the answer to this growing problem. Since 1995, gay men and lesbians have had the right to adopt a child together as parents. This is the best legal protection for the child and the parents. When a gay or lesbian couple adopts a child both parents are treated equally in law. The child can receive survivor benefits from either parent. On separation, an adoption will go a long way to showing that both parents have the right to custody of or access to the child. The biological mother cannot rely on the blood relationship alone as proof of her right to sole custody.

Violence in spousal relationships has always been relevant to the issues of custody and access. This is true as well in same-sex partnerships.  The difficulty in cases involving abuse is proving to a court that the violence did happen. This is especially true for gay men and lesbians who experience abuse from their partners. Judges know very little about same-sex partnerships and may have stereotypical views that men don't get abused or that women don't assault each other. It will take ongoing education of judges to change these opinions.

The laws have changed to provide gay men and lesbians more legal rights and protection. Although custody and access laws have not changed, society's attitudes towards gay and lesbian parents are beginning to become more positive. Our families and our relationships with our children are beginning to be accepted. With ongoing education, more judges will hopefully reflect this change in providing equal treatment under the law to gay and lesbian parents.

Margaret Buist is a feminist family lawyer with her own firm in London, Ontario. She has written numerous articles and has spoken on women's equality and gay and lesbian legal issues to groups such as the Ontario Court Provincial Division Family Judges, the Canadian Advisory Council on the Status of Women and the Law Society of Upper Canada Continuing Legal Education Programs, as well as many local women's and community groups.