Dalhousie Journal of Legal Studies


Jude Hall


Disputes in family law, particularly in child custody and access cases, often involve emotionally charged parties. These parties, when pitted against one other in an adversarial system, often seek to discredit, impugn or malign the opposing party in an effort to influence an outcome in their favour. The judiciary, as the triers of fact and arbiters in these cases, must consider the often widely divergent positions of each party, and apply an impartial analysis and judgment that considers the best interests of the children at the centre of these disputes. Despite the presumption of judicial impartiality, it is reasonable to assume that as participating members of society, and often as parents themselves, members of the judiciary will rely upon their own senses of morality in applying the law, assessing the merits of each party’s positions, and ultimately rendering a decision in each case. The assessment of parenting capability and skill (or lack thereof) in a custody and access dispute is a highly contextualized analysis and is dependent upon the fact scenarios of each case. When the issue of a parent’s sexuality is raised, the dynamics of overt and subconscious homophobic bias are introduced into the dispute. Typically one of the litigants has raised the issue, and the judge is then compelled to address it in the decision-making process. In considering the subject matter of this article – child custody and access disputes – it is worthy to note the definition of homophobia: “irrational fear of, aversion to, or discrimination against homosexuality or homosexuals.” While the litigants in child custody and access cases are often not on the friendliest of terms, homophobia does not generally present itself as hateful speech or violent actions as these are often manifested in other contexts. Rather, homophobia, in the form of overt statements about or subconscious bias towards the parenting capabilities of a gay or lesbian parent, if present in the minds of the litigants or the judiciary, can result in influence on the final outcome of these disputes. The question of parenting capability, fitness, and developmental impacts upon children of gay and lesbian parents is much broader than the context of custody and access disputes where one of the parents is alleged, or acknowledged, to be gay or lesbian. Same sex couples and gay and lesbian single adults who have become or wish to become parents endure many of the same biases, stereotypes, and resistance with respect to their abilities to parent and raise children in a healthy and supportive environment. This paper focuses only on the issue as it arises in context of litigation over child custody and access cases where one or both of the litigants is alleged or acknowledged to be gay or lesbian. Specifically, this article attempts to elucidate primary differences in perceived parenting fitness of lesbian mothers and gay fathers, provide insight into factors fueling these perceptions, and discuss effects upon custody and access decisions in family law. In support of this objective, a qualitative case review of Canadian custody and access disputes in the last 30 years was undertaken with the goal of identifying the extent to which overt or subconscious homophobic attitudes or bias affects the tone and outcomes of these cases. Additionally, the paper will consider whether bias is different toward gay fathers and lesbian mothers and whether there has been any discernable change in these biases over time.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.