If one spouse is gay, will the courts award custody to the heterosexual spouse?

“Is it true that, if a marriage breaks down because one spouse declares he/she is gay, the courts will award custody of the children to the heterosexual spouse?”

This statement was not true when I started to practice in 1978, and it’s less true today. The only criteria that a court looks at in deciding custody are the best interests of the child. In determining the best interests of a child for purposes of custody or access, the court will consider all the needs and the circumstances of the child, including:

• the love, affection, and emotional ties between the child and each person entitled to claim custody of or access to him or her; other members of the child’s family who reside with the child; and people involved in the care and upbringing of the child;
• the views and preferences of the child, where such views and preferences can reasonably be ascertained;
• the length of time the child has lived in a stable home environment;
• the ability and willingness of each person applying for custody to provide the child with guidance, education, and necessities of life;
• the special needs of the child;
• any plan proposed for the care and upbringing of the child;
• the permanence and stability of the family unit with which the child would live;
• the relationship by blood or through an adoption order between the child and each person who is a party to the Application.

Old views classified gay/lesbian relationships as less stable than heterosexual ones. Modern studies have shown that this is not so. While there may still be some bias in the courts against same-sex male households — with the outdated view that the parent may be cruising bars — this view has totally disappeared in relation to same-sex female households. Certainly, the law that allows for gay adoption has helped, as have studies that show that children from gay/lesbian households usually grow up heterosexual and are psychologically healthy. The law is moving into the 21st century in recognition that all parents are to be considered equal, regardless of sexual orientation.

About 15 years ago, one of my clients was a lesbian mother in a stable same-sex relationship applying for custody of her children versus her unstable, heterosexual former husband. I was concerned, but she easily got custody. Today, that concern would never enter my mind.

Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce.