In 1993, the Minnesota Human Rights Act was enacted, prohibiting certain forms of discrimination due to specific characteristics including sexual orientation. In 2013, a bill became law officially recognizing same-sex marriages in the State of Minnesota. In 2015, the Supreme Court of the United States ruled that the right to marriage exists regardless of sexual orientation. Over the past several decades, same-sex marriage and parenting by gay and lesbian individuals have become more common and less stigmatized.
As societal perception and acceptance of sexuality, in general, has changed, child custody decisions involving lesbian and gay parents has also evolved, and parental sexual orientation has become less of an influential factor when determining custody of children.
Minnesota statutes do not expressly prohibit a judge, referee, or evaluator from considering the sexuality of a parent seeking to establish or modify custody of a child. Nor do any statutes prevent the opposing party from raising the issue of sexual orientation, gender identity, or gender-role behavior. It is imperative for LGBT parents to have an experienced family law attorney to help recuse or remove a judge or referee, or avoid evaluators, who may discriminate based on those characteristics.
For a gay or lesbian individual coming out of the closet at the end of a heterosexual partnership, the state of current law can mean that he or she could be denied custody of the children, or face restrictions on parenting time. Restrictions could include being prohibited from living with a same-sex partner while the children are in the home or requiring a third party to supervise parenting time.
Issues of inequity are not limited to the recently-out. Issues may arise at the end of a same-sex relationship which resulted in children. The difficulties that same-sex couples can have in establishing parental rights for both parents can mean that one partner is not recognized as a legal parent by the state or by the court, and therefore is not granted custody or parenting time. In the event the legal parent dies, the surviving non-legal parent will have no rights to parenting time, custody, or decision-making. From a legal perspective, the surviving non-legal parent may as well be a stranger.
Court decisions disadvantaging lesbian and gay parents often do not consider important social science research on parenting by gay and lesbian individuals. Such research shows that gay and lesbian individuals are as effective in parenting as heterosexual individuals. Children raised by gay or lesbian parents are as well-adjusted as their peers raised by heterosexual parents.
Results of social science research have failed to confirm any of the concerns about children of lesbian and gay parents. Research suggests that sexual identities, including gender identity, gender-role behavior, and sexual orientation, develop in much the same ways among children of same-sex parents as they do among children of heterosexual parents.
When determining to pursue a divorce, change or establishment of custody, or modification of parenting time gay, lesbian, bisexual, or non-cis individual’s interest is best served by experienced family law attorneys who understand and empathize with their needs. At Mundahl Law we work to protect the parental rights of LGBT individuals. If you are gay, lesbian, bisexual, or non-cis and considering divorce, change or establishment of custody, or modification of parenting time, contact Mundahl Law today to
schedule a consultation with our experienced family law attorneys.