If a marriage breaks down because one spouse declares he or she is gay, will …

“If a marriage breaks down because one spouse declares he or she is gay, will the courts award custody of the children to the heterosexual spouse?”

The basic standard in most states in awarding custody is the best interests of the children. It is not true that sexual orientation — or even the gender of the parent — is a valid factor in deciding which parent is the most nurturing, most involved in the medical care, educational supervision, or day-to-day care-giving.

If the parents can’t agree on custody or timeshare issues, before any court can make an order, parents are mandated to attend Conciliation Court (called mediation in some counties). In this mediation process, a mental-health professional will attempt to facilitate as much of an agreement as possible regarding timeshare. If the children are of an age “of reason” — pre-teen or teen — they may be involved in the mediation.

Should Conciliation efforts fail, the court will have to decide what orders to make. Most judges will depend on recommendations of a psychological evaluation by an expert in custody issues. Legal custody refers to decision-making in issues such as education, medical care, religious training, etc.; physical custody determines how time with the children is shared.

A common area of contention in gay/straight divorces is the objection by the straight parent to having the minors spend time with the gay parent and his or her partner. That objection has no more legal validity than having the heterosexual parent expose the children to a boy/girlfriend. If the new relationship of either parent is serious and monogamous, it should not be a factor. However, a parent should consider whether any relationship is likely to evolve into a serious, committed one before introducing a new partner — gay or straight — to their children; this will reduce the risk that children will experience yet another emotionally shattering loss of a parent figure.

In summation, factors the court will likely consider in making a custody and timeshare order are centered around the emotional, physical, medical, and educational best interests of the children rather than the sexual orientation of either parent, which should be privately demonstrated in any case.

Rosaline L. Zukerman has been practicing primarily in the family law area for over 22 years. Her background in psychology and counseling makes her especially adept at dispute resolution, in addition to active representation of families in crisis. For over 15 years, she has volunteered her pro-bono services through the Los Angeles County Bar Attorney-Client Fee Disputes Arbitration Services.