Legal Question in Family Law in North Carolina

Re: Child Custody and Sexual Orientation

While sexual orientation does not determine how well a father or mother can parent, in practice the courts may disguise homophobic attitudes by determining that having a gay parent will subject a child to unnecessary and repeated harassment from school mates, that watching two gay parents show affection for each other will adversely affect the child, and that the child's best interest is not protected by having a gay parent raise them. I have seen cases where the court did not care about orientation, but that was just the preference of the judge. While progressive judges might not care, more conservative judges might be swayed by anti-homosexual rhetoric.

The landmark NC case involved two gay men who lived together and raised the child. The child walked into their bedroom and saw various activities. Based on the child seeing this and the normal kissing and hugging, the court determined that the child's seeing the daily "gay activities" adversely affected the child, and therefore the child was placed with the mother.

A parent can not be discriminated against for being homosexual. Being homosexual is not a crime. It's the acts associated with homosexuality that are illegal and can be used against a homosexual parent. One of the ways a gay parent can protect themselves from such discrimination is to live separately from their partner and to save their affection for times when the children are not with them (that way, there can be no effect of orientation of the child). This may only be necessary until the child custody determination is made, because the burden to change the custody arrangement is much tougher than the initial determination. While this is not a desirable circumstance, losing custody can be a much more traumatic result.

Since North Carolina does not recognize civil unions or allow homosexuals to marry (or adopt), there is not a lot of protection that a gay parent can raise if the court decides against them. It would raise an interesting Constitutional question if you and your partner were to get married (Hawaii) or have a civil union, but an interesting Supreme Court case means a traumatic couple of years and an tremendous investment in time, money and sanity.