Citation
Child custody determinations

Material Information

Title:
Child custody determinations implications for lesbian mothers
Creator:
Causey, Kelly A
Publication Date:
Language:
English
Physical Description:
viii, 75 leaves : forms ; 29 cm

Thesis/Dissertation Information

Degree:
Master's ( Master of arts)
Degree Grantor:
University of Colorado Denver
Degree Divisions:
Department of Sociology, CU Denver
Degree Disciplines:
Sociology

Subjects

Subjects / Keywords:
Custody of children -- United States ( lcsh )
Lesbian mothers -- United States ( lcsh )
Custody of children ( fast )
Lesbian mothers ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 69-75).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Sociology.
General Note:
Department of Sociology
Statement of Responsibility:
by Kelly A. Causey.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
34579771 ( OCLC )
ocm34579771
Classification:
LD1190.L66 1995m .C38 ( lcc )

Full Text
CHILD CUSTODY DETERMINATIONS: IMPLICATIONS FOR LESBIAN
MOTHERS
by
Kelly A. Causey
B.A., Scripps College, 1989
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Sociology
1995


(c) 1995 by Kelly A. Causey
All rights reserved.


This thesis for the Master of Arts
degree by
Kelly A. Causey
has been approved
by
5-/ifis-
Date


Causey, Kelly ( M.A., Sociology)
Child Custody Determinations: Implications for Lesbian Mothers
Thesis directed by Assistant Professor Candan Duran-Aydintug
ABSTRACT
For nearly three centuries, courts have been involved in the complex task of
settling the custody issue. Based upon a condensed version of parents lives, judges
must make an appraisal of who can provide a more stable and permanent home
environment for the child. To make this decision, judges consider the best
interest standard codified in the Uniform Marriage and Divorce Act. The
interpretation of this statute incites concern from legal scholars who claim that
judges act on their own biases and values when deciding what is in the best interest
of the child. Gay and lesbian parents claim that these biases may prevent legal
decision makers from providing them equal protection under the law. One example
of this involves child custody decisions when the mother is a lesbian. The purpose
of this research is to address considerations for child custody determinations,
factors deemed detrimental for lesbian mothers and the implications of stigma on
the custody decision. To meet this purpose, two studies were conducted. The aim
IV


of the first study was to gather exploratory information through in-depth interviews
with legal service professionals regarding their experience with lesbian mothers
seeking custody and to learn about the legal proceedings involved with these
custody decisions. The second study served to assess tendencies to stigmatize
lesbian mothers in relation to custody decisions by surveying citizens of urban and
rural counties within Colorado. Results showed that legal professionals thought
that the location of the case made a difference. Survey results indicated there is no
difference between the urban and rural counties in relation to stigmatizing the
mother. Judges and respondents to the survey wanted to know the sexual
orientation of the mother while the other legal professionals found that to be
irrelevant. Knowing the age of the child was important to both the respondents and
the legal professionals. The respondents level of education had no significant
effect on the level of stigma. Men had a significantly higher tendency to stigmatize
than women. It was shown that the lower the level of stigma the more likely the
mother was to get custody.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
Signed
v


This research is dedicated to lesbian mothers and their families.


CONTENTS
CHAPTER
1. INTRODUCTION 1
2. REVIEW OF THE LITERATURE 4
The History of Child Custody 4
Lesbian Mothers 6
Lesbian Mothers and Custody Law 8
The Per Se Classification 8
The Nexus Approach 11
Judicial Assumptions and Current Research 14
Stigma 17
Notes 25
3.. METHODS 26
First Study: Interviews with Legal Professionals 26
Respondents 26
Procedure 27
vii


Second Study: Survey of Citizens of Colorado 28
Respondents 28
Crowley County 29
Arapahoe County 30
Respondent Characteristics 31
Procedure 32
Measurement 33
4. RESULTS 36
First Study: Interviews with Legal Professionals 36
Second Study: Survey of Citizens of Colorado 49
5. DISCUSSION 52
APPENDIX 61
A. Questionnaire and Cover Letter 61
B. Interview Guidelines 66
REFERENCES 69
via


The author would like to thank the legal professionals who shared their
expertise and the residents of Crowley and Arapahoe county who took the time to
thoughtfully complete the survey. A special thanks to Dr. Duran Aydintugfor her
invaluable support and guidance. Heartfelt appreciation goes to Ed Capezzi for
his technical expertise and to Fiona Martin for her encouragement and laughter
throughout this project.


CHAPTER 1
INTRODUCTION
In an ever changing, pluralistic society, one does not need to look further
than society's most basic unit to capture the breadth and scope of its diversity.
Within the last quarter century the "protected" institution of family has experienced
an incredible metamorphosis. Once defined by a father, a mother and a child, the
family now encompasses a vast array of social arrangements, kin networks and
blood relations that challenge family members as well as policy makers when we
attempt, in the midst of "uncomfortable" changes, to cling to the norms we as a
society hold dearly.
Treasuring the "false" comfort of norms does not, however, prevent change
from occurring. There is ample evidence relaying the demise or transformation of
certain norms. The conventional notion of marriage being the foundation of a
family is weakened by an environment where 50% of first marriages in the United
States and 60% of second marriages are likely to end in divorce (Martin and
Bumpass, 1989). Additionally, cohabitation, postponement of marriage and
delaying childbearing are on the rise (Cherlin, 1988). Another assumption, that the
1


male is the sole breadwinner, falters when we see that married women with children
under the age of six are the fastest growing sector of the labor force (Coontz,1992).
The norm of a child being raised by both a father and a mother is challenged when
approximately 23 million American children in 1986 were not living in a two
parent family (Coontz, 1992).
In light of this evidence, society still goes to great lengths to support the
ideal of a "nuclear family". Often, this comes at the expense of non-conventional
family forms such as extended families, step families, foster families, blended
families, single parent families, and many others who have struggled to fit the mold
of a family form which never described them. In recent years, many of these
families have fought to break the mold to claim the richness of their history and to
take pride in their identity. One such family form is gay and lesbian families. One
way this family form is challenging the nuclear is through the legal system.
Lesbian and gay families claim that legal biases, stereotypes and assumptions are
preventing legal decision makers from providing for them equal protection under
the law. The Domestic Partner movement is one avenue these families are pursuing
to challenge the legal system. Domestic Partners are cohabiting individuals who
are not married. Acknowledging that the legal system prefers blood and marital
relationships, the "movement" is attempting to access benefits afforded to couples
2


who can legally marry. Obtaining economic benefits is one of the priorities. As
Horn notes in her article, "To Love and Cherish" (1990),
Up to 40% of an average workers total annual
compensation is paid out in benefits, including family health
and dental plans, parental leave, leave to care for a sickfamily
member, pension benefits, day care, moving expenses, and
bereavement leave. Married couples get a larger share of these
than single adults and unmarried couples...In addition, some
married couples can reduce their tax liabilities by filing jointly.
They are entitled to special government benefits, such as those
given surviving spouses and dependents through social security.
They can inherit from each other when one partner dies without
a will. They cannot be subpoenaed to testify against each other
in court. They can visit each other in hospitals and prisons.
Reduced travel expenses, health club family plans, access to
married student housing, and consumer discounts all go hand-
in-hand with marriage (p.10).
In addition to economic concerns, gays and lesbians face other kinds of
inequalities which they are challenging. One such inequality is found in the
determination of child custody. The purpose of this research is to examine the
tendency to stigmatize homosexual mothers in Colorado who are seeking child
custody. The following addresses considerations for child custody determinations,
factors deemed detrimental for lesbian mothers and the effects of stigma on the
custody decision.
3


CHAPTER 2
REVIEW OF THE LITERATURE
The History of Child Custody
The basis for determining child custody dates to English Common Law of
the early 1700's which stipulated that fathers had a natural right to custody of 1he
children. Children were considered the property of the father while the mother had
no rights to her children. With a steady rise in divorce and separation, states began
to modify their statutes and in the second half of the 19th century the "tender years"
doctrine was instituted. This favored the mother if the child was under seven years
old. The Maryland High Court of Chancery claimed:
the father is the rightful and legal guardian ofall his infant
children..[y]et even a court of common law will not go so far as.
to hold nature in contempt, and snatch helpless, puling [sic]
infancy from the bosom of an affectionate mother, and place it
in the course hands of the father (Stone, 1989).
In the late 1900's, divorce became more common and with growing social
acceptance, laws changed to adapt to the increasing demand for the state to
intervene into the family. The "tender years" doctrine weakened and the courts
began utilizing tests to determine what was in "the best interest of the child"
4


(Coltrane and Hickman, 1992). The "best interest" standard as codified in the
Uniform Marriage and Divorce Act (UMDA) explains:
The court shall determine in accordance with the best interests
of the child. The court's shall consider all relevant factors
including: (1) the wishes of the child's parent(s) as to his
custody; (2) the wishes of the child as to his custody; (3) the
interaction and interrelationship of the child and his parent or
parents, his sibling, and other person who may significantly
affect the child's best interest; (4) the child's adjustment to his
home, school and community; (5) the mental and physical
health of all individuals involved The court shall not consider
conduct that does not affect the relationship between the child
and a present Or proposed custodian (Walker, 1990, p. 169).
Although seemingly comprehensive, the interpretation of this statute incites
concern from legal scholars who claim that judges act on their own biases and
values when deciding what is in the best interest of the child (Achtenberg, 1985;
Mnookin, 1985; Tillitski, 1992). One example of this has been the tendency for
courts to award sole custody to the mother. The bias is that mothers, by nature, are
better equipped to care for the children) than are the fathers.
Kunin, Ebbesen and Konecni (1992), in their research on predictors of
judicial decisions, claimed that the courts "may be overly general, vague and use
poorly substantiated psychological claims (and expert recommendations) as a
justification for unconventional custody awards and for circumventing decisional
guidelines (p.566). These critics are targeting the latitude of interpretation
5


provided by factors number (4) and (5) in the UMDA, which will be discussed in
the following sections. Item (4) states that the court will consider "the child's
adjustment to his home, school and community. Item (5) cites the mental and
physical health of all individuals involved. Providing this latitude exposes inherent
biases in the system which are effecting non-conventional families. One example is
single fathers who decry sex discrimination when they are denied custody in favor
of the mother's assumed maternal instinct. Another example involves lesbian
mothers who lose custody because judges rely on unsubstantiated presumptions
which favor the other party.1
Lesbian Mothers
While society rarely identifies a lesbian mother with children as a family,
this lack of recognition has not hindered the increasing number of lesbians who are
raising children. Many lesbian mothers conceal their homosexuality due to fears
that they may lose custody or visitation. Even though this fear of discrimination,
and thus secrecy, makes it difficult to quantify the true numbers of lesbian mothers
and their children, the number of lesbian mothers in the United States is estimated
to be between one million and five million (Falk, 1989; Gottman, 1990). The
number of children parented by gay men or lesbians is estimated to range from six
million to fourteen million (Hare and Richards, 1993; Patterson, 1992). While the
6


majority of children parented by homosexuals came from previous heterosexual
relationships, up to 10,000 lesbians have bom children through artificial means
(Coontz, 1992). Gays and lesbians are also seeking parenthood through fostercare
and adoption. These non-conventional family forms are on the rise and court
opinions reflect confusion about how to respond to it.
Current laws regarding the custody rights of gays and lesbians indicate a
movement away from a per se classification of unfitness towards requiring
evidence that the parent's sexual orientation demonstrates a detriment to the child.
A lesbian mother's likelihood for success, however, is no more than 50% compared
to the standard maternal custody award of 90% (Bozett, 1987).
Why is there such a disparity? It is well recognized that parental fitness is
of primary concern in custody decisions. This is highlighted in item (5) of the
UMDA. Evidence of the mother's fitness include physical appearance, social skills,
social adjustment, the mother's maturity, shared interests with the child and whether
or not she is the primary caretaker. For lesbian mothers, additional factors are
considered and these factors may be unverified assumptions which adversely affect
the potential for the lesbian mother to gain custody of her children). These factors
are discussed in the following section.
7


Lesbian Mothers and Custody Law
For nearly three centuries courts have been involved in the complex task of
settling the custody issue. Based upon a condensed version of the parents' lives,
presented in a few short hours often by an appointed Court Evaluator, judges must
make an appraisal of who can provide a more stable and permanent home
environment for the child. For mothers with a same sex orientation, two
approaches may be utilized during the appraisal process to determine the fitness of
the parent and the impact of her homosexuality. While a minority of courts view
same sex orientation as an insignificant factor, many courts use two mentioned
approaches; the per se category and the nexus approach.
The Per Se Classification
The per se standard of review presumes the parent to be unfit based merely
on the existence of a same sex orientation. This standard does not require evidence
of an adverse effect on the child. Case law indicates that few jurisdictions still
uphold a per se ruling of unfitness; however, for those that do support it, the
homosexual parent is automatically denied custody and/or given modified
visitation. Courts substantiate these rulings by citing, among other reasons,
concern for the moral growth of the child, societal disapproval and the impairment
of the psychological well being of the child.
8


In 1981, the Supreme Court of North Dakota applied the per se rule in
Jacobsen v. Jacobsen. The mother, who had two children ages four and nine,
openly admitted her lesbian relationship with an eighteen-year-old woman. The
court supported the trial court's ruling that the children of the lesbian mother would
"suffer from the slings and arrows of a disapproving society" if they lived with her
(Baggett, 1992).
Similarly, in Dailey v. Dailey, the Court of Appeals of Tennessee in 1981
granted a change in custody to a father who claimed that the mother began living
with a lesbian lover after the mother was originally granted custody. The father
believed his child would be harmed if the court continued to allow the mother to
have custody. The court relied on testimony from a psychologist who touted the
negative effects the child would have to endure if allowed to live with the mother.
The psychologist claimed that the practice of homosexuality is not socially
acceptable, is a learned practice, and is damaging to the proper development of a
child. The court supported the psychologist by changing the custody order to the
father. The court justified the change by saying the child needed a stable home
environment which the mother could not provide given her lifestyle. Additionally,
it was mentioned that exposure to homosexual behavior "could provide nothing but
harmful effects on his life in the future" (Baggett, 1992, p.191).
9


The Superior Court of Pennsylvania, in Constant A. v. Paul C. A. (1985),
applied a presumption that a conventional family environment was a better and
healthier location for the child than a lesbian family environment. The mother was
required to prove that the relationship would have no adverse effect on the child.
The mother demonstrated that she had a committed relationship with her partner
and that the quality of her relationship with her children was healthy. In spite of
4
* A
her evidence, the court was not convinced that at some point in the future, the
children would not be adversely effected by her same sex orientation. In addition,
the court claimed that the societal bias against same sex orientation would be
detrimental to the children. (Baggett, 1992).
A host of other issues emerge as a result of acknowledging that a lesbian
relationship exists. In S. v. S. (1981), the Court of Appeals of Kentucky was
concerned that the child might have difficulty in developing a healthy heterosexual
relationship in the future. Courts also claim it is their duty to protect the moral
growth of the child, implying that the homosexual mother is incapable of doing that
(S.E.G. v. R.A.G., 1987; White v. Thompson ,1990; Chicoine v. Chicoine, 1992).
To protect the moral growth of the child, some courts cite state laws
forbidding consensual sodomy. Opponents to these laws argue that courts unfairly
assume that all homosexuals engage in sodomy and that courts presume
heterosexuals do not participate in sodomy. While nearly half of the states
10


criminalize sodomy there are no reported cases when a heterosexual parent was
denied custody based on the sodomy law (Pershing, 1994). In a highly publicized
case, Bottoms v. Bottoms (1993), a lesbian mother lost custody of her son to the
maternal grandmother because Virginia law prohibited sodomy. The courts deemed
the mother unfit because she admitted to living in a lesbian relationship and
therefore, as a criminal, she should not be awarded custody of her son.
The Nexus Approach
The nexus approach, unlike a per se classification, is not based on
presumption. Rather, this mode of evaluation examines the parent/child
relationship to determine if the child is adversely affected by the parent's same sex
orientation. If an adverse effect exists, the parent is denied custody and/or given
modified visitation. The child is likely to remain with the parent if there is no
evidence of an adverse effect on the child. This approach places a de facto burden
on the lesbian mother to demonstrate an exceptional parent/child relationship and
she is required to counteract the misguided fears that a homosexual lifestyle may
generate. Walker (1990) cites the three most common nexus arguments which are
used to deny the mother custody:
1. An adverse influence on the sexual development of the
children).
11


2. Social stigmatization of the children) of
homosexual parents.
3. The sexual molestation of children by homosexuals (p. 159).
Several leading nexus cases support the prevalence of these arguments.
In a leading nexus case, D.H. v. J.H. (1981), the court held that
"homosexuality standing alone without evidence of any adverse effect upon the
welfare of the child does not render the homosexual parent unfit as a matter of law
(cited in Baggett, p. 193). The court did not, however, award custody to the
lesbian mother. The father gained custody because he had been responsible for the
domestic affairs. He was more aligned, according to the court, with the typical role
of mothering and therefore, was more fit to be the custodial parent.
In another important case dealing with the nexus approach, the Supreme
Judicial Court of Massachusetts, in Bezio v. Patenaude (1980), held that a mother's
lesbianism could not be presumed to render her unfit absent a showing of an
adverse effect on the children. Not uncommon to custody cases, the Bezio court
relied on the recommendation of a psychologist who stated that sexual orientation
does not impede the psychological development or the emotional adjustment of the
child. The court supported the psychologist's recommendation and further
encouraged the nexus approach because no evidence existed which linked the
mother's homosexuality with an adverse effect on the child. The court claimed that
the courts "may not deprive parents of custody...simply because their households
12


fail to meet the ideals approved by the community...[or] simply because the parents
embrace ideologies or pursue life-styles at odds with the average."
While these cases offer hope for lesbian mothers, there are other cases
where the courts have ruled against mothers based on the level of secrecy involved
with the lesbian relationship. In Distefano v. Distefano (1978), a New York
appellate court upheld the trial court's award of custody to a father where the
)
mother acknowledged that she was in a lesbian relationship. The father alleged that
the lesbian relationship was the primary cause of the dissolution of his marriage.
He also claimed the mother had violated the visitation agreement by keeping the
children away from him. The court ruled that, while the trial court did not find her
per se unfit, her homosexuality could have a disturbing effect on the children.
Custody of the three children were awarded to the father.
The Louisiana Court of Appeals, in Peyton v. Peyton (1984), addressed the
issue of custody in a case involving a lesbian mother. Of primary consideration in
this case was the extent to which the mother's lifestyle was discreet. The court
defined the factors involved in determining whether a parent's sexual lifestyle is
damaging to the child. These factors include:
1. Is the child aware of the illicit relationship?
2. Has illicit behavior occurred in the presence of the child?
3. Was the sexual misconduct notorious, bringing embarrassment to the
child?
13


4. What effect has this conduct had on the family home life?
The mother's activities were discreet, therefore they were considered not harmful to
the child. It is important to note that the court did not explain its use of the word
misconduct nor did it define the term illicit or their reasoning for labeling the
homosexual lifestyle in that way.
In Lundin v. Lundin (1984), the court granted more visitation to the father
because of the indiscreet nature of the mother's lesbianism. Similarly, in Hudson v.
Moore (1990), the court also acknowledged that the lesbian activities needed to
remain discreet and they warned the mother that while she would continue to have
custody, that might change in the future if those living with her were not discreet.
Judicial Assumptions and Current Research
The basis for some of the judicial assumptions being questioned by lesbian
mothers and legal professionals comes from early studies from the mid 1970s.
These studies compared lesbian mothers to heterosexual mothers and found that
lesbian mothers were shown to be indifferent, detached, and sometimes hostile
towards their children. Heterosexual mothers were not shown to possess these
qualities (Wolff, 1971; Rosen, 1974; Bieber, 1976). Falk (1989) and Patterson
(1992) summarized several of the most common biases used to justify lesbian
14


mothers as unfit parents, and they examined current social science research which
challenges previous research in this area. The biases they reviewed include: 1. All
homosexuals are mentally ill and therefore should not raise children. 2. Lesbian
mothers are less maternal than heterosexual mothers. 3. Children will develop
mental problems. 4. The gender role of the child will be significantly impaired. 5.
The child will be more likely to become homosexual. 6. Children will be
stigmatized by their peers. Social science research has provided evidence to
challenge these assumptions.
1. Harris (1977) stated, "Numerous studies geared specifically to testing the
lesbian psyche have found lesbians to have the same or lower incidence of
psychiatric disorder than matched heterosexual controls". Rand, Graham and
Rawlings (1982) found when compared to the larger sample, lesbian mothers were
at least as psychologically healthy as heterosexual mothers. Additionally, in
response to numerous studies providing evidence of mental competency among
homosexuals, the American Psychiatric Association removed homosexuality from
its diagnostic manual of mental disorders in 1973 (American Psychiatric
Association, 1980).
2. Mucklow and Phelan (1979) purported that lesbian and heterosexual
mothers may be more alike than different in their maternal attitudes and self-
concepts. Miller, Jacobsen and Bigners study (1981) negated that heterosexual
15


mothers are more child-oriented than lesbian ones. Kirkpatrick, Smith and Roy
(1981) noted that child rearing practices, lifestyles and interests were similar for
heterosexual and homosexual mothers.
3. Lewis (1980) and Golombok, Spencer and Rutter (1983) conducted
research that found no significant differences in psychological health between
children of heterosexual parents and those of homosexual parents. Weeks, Derdeyn
and Langmon (1975) suggested that the emotional difficulties of children may be
from the effects of divorce rather than the sexual orientation of the parent.
4. Many studies have assessed gender-role identity and consistently the
results have shown no significant differences between children of heterosexual or
homosexual parents (Green, 1978; Kirkpatrick et al. 1981; Golombok, 1983;
Gottman, 1990).
5. In conjunction with gender-role identity, some research has served to
examine the proclivity for children of lesbians to become homosexual. The
assumption being challenged is that children emulate their parents to develop their
sexual orientation. As Achtenberg (1990, p.3) suggests, "Considering the majority
of lesbians and gay men were raised by heterosexual parents, this assumption is
unfounded." In these studies the proportion of lesbian or gay offspring did not
exceed what is believed to represent the population at large (Gottman, 1990;
Bozett, 1989; Paul, 1986; Patterson, 1992).
16


6. Social science research also explored the assumption that children will be
stigmatized by peers and otherwise harmed by society at large. This is in response
to judges who believe the child will be hurt because of the stigma attached to the
parent's homosexuality. When judges refer to "stigma" of the parent, what is it
exactly that warrants consideration? To answer this, the concept of stigma must
first be addressed.
Stigma
Erving Gofifinan, a preeminent sociologist, defines stigma as an "undesired
differentness from what we had anticipated (1963, p.5). The anticipation comes
from categorizing people on the basis of certain attributes appropriate to their
category. This is considered one's "social identity". Once the attributes have been
assigned, people begin to have expectations and to formulate demands of this
person. This is the person's virtual identity. If the person is able to meet these
demands and fulfill the expectations then he/she has acquired an "actual identity".
Those who do not meet the demands, and offer, instead, evidence to challenge our
expectations, become stigmatized. They have shown a discrepancy between their
"virtual identity" and their "actual identity". Goffinan categorized three forms of
stigma: physical deformities, blemishes of character, and tribal. Physical
deformities include observable physical characteristics that bring negative attention
to the individual, such as a loss of limb. Blemishes of character, as defined by
17


Goffrnan, are perceived as weak will, domineering or unnatural passions,
treacherous and rigid beliefs and dishonesty. Tribal stigma is one that can be
transmitted through lineages and equally contaminate all members of a family, for
example, race, nation and religion. According to these categories, homosexuality
is considered a blemish of character.
Using Goffinan's framework for stigma, the discrepancy between "virtual"
and "actual" identity is inevitable for the lesbian mother. Initially, a woman with
her children) is given the attributes of a mother. She is expected to be the primary
caretaker and to love her children above all else. She is expected to behave in a
way that all mothers should behave. Once the woman is known to be a lesbian, she
has then offered evidence to challenge the expectations. The discrepancy is that
lesbians are not supposed to be mothers and lesbians are not supposed to behave in
the same way as other mothers behave.
What happens then, when the discrepancy is exposed? Goffrnan suggests
that four actions are taken by those who stigmatize, in this case, heterosexuals. The
first action is that a stigma theory is constructed to explain why the stigmatized
person is inferior to all others. This accounts for the danger this person represents.
An example of this is the assumption that all homosexuals are mentally ill and
therefore should not raise children.
18


The second action is the use of stigma terms to ensure the awareness of the
person's uniqueness. This action is witnessed when heterosexuals use the
derogatory terms faggot or dyke to describe a homosexual.
The third action is imputing a wide range of imperfections on the basis of
the original one. A lesbian mother is assumed to be less maternal and of poor
moral character because of her original "imperfection", being homosexual.
The fourth action is supporting a standard of judgment that d^es not apply
to them. An example of this approach is how judges look unfavorably upon
mothers who "incite" prejudice because they are activists within the gay community
and/or they are openly affectionate with their partners. Even when the affection is
displayed exclusively within the home, courts still believe the community at large
will harm the child. Bottoms v. Bottoms (1993) is a recent example of this where,
initially, the mother was denied custody because she and her partner displayed
affection in front of her child which the court found inappropriate. The unlikeliness
of a lesbian mother to gain custody when her homosexual lifestyle is indiscreet
suggests that some courts do support anti-gay mores. Lesbian mothers are asked by
the courts to refrain from affection, withhold participation in community
organizations, and sever relationships with loved ones in order to gain custody.
Heterosexual mothers, on the other hand, are not forced into this type of
predicament.
19


Why does the stigma factor prevail? The stigma factor deceptively
subsumes the specific biases into a larger, ambiguous category of bias, called
stigma. Although the specific biases used against lesbian mothers is refuted by
scientific research, the conclusion is still accepted, that children will be stigmatized
by society. It is illogical, but effective. The stigma factor also enables the judge to
avoid exposing personal bias by deferring to society as being responsible for
perpetuating the bias against homosexuals.
The Assumption that the child with a homosexual mother will be
stigmatized is dangerous because it is not linked to parental fitness or the parent-
child relationship. It is based on anticipated fear which, in many cases, goes
unverified. In such cases, judges assume the teasing exists, that the teasing is in
fact harmful, and that teasing based on a parent's sexual orientation is more serious
than teasing based on other attributes such as physical characteristics, intelligence,
or ethnic heritage.
Green, Mandel, Hotvedt, Gray, and Smith (1986) examined peer relations to
assess the concern of children being stigmatized about their lesbian mothers.
Utilizing self-reports about popularity among same-sex and opposite-sex groups,
there were no distinct differences between children of heterosexual or homosexual
mothers. Golombok et al. (1983) also looked at the quality of peer group relations
and found that overall they were rated as "good".
20


Several court opinions are used to argue that societal stigma cannot be a
factor in determining custody because it may violate equal protection. In spite of
these findings, some courts still deny custody to the mother. Under the auspices of
protecting the child from an intolerant society, courts validate societal homophobia
by acknowledging its existence and prioritizing it over parental rights to raise a
child (Kraft, 1983). Opponents to this urge courts to evaluate the nature of the
homophobia and the extent to which it exists. This can be accomplished by talking
with significant adults involved in the life of the child, such as a teacher, a
counselor or a coach. It is also important to ask the child. When children prefer to
live with one parent over another due to negative peer reactions, a change of
custody may be warranted. However, judges are cautioned from making blanket
assumptions and presuming only negative effects from stigma. In M.P v. S.P. the
court stated, "It is reasonable to expect that [the children] will emerge better
equipped to search out their own standards of right and wrong, better able to
perceive that the majority is not always correct in its moral judgments, and better
able to understand the importance of conforming their beliefs to the requirements of
reason and tested knowledge, not the constraints of currently popular sentiment or
prejudice."
The purpose of this research is to examine tendencies to stigmatize
homosexual mothers in Colorado who are seeking child custody. It therefore
21


addresses considerations for child custody determinations, factors deemed
detrimental for lesbian mothers and the effects of stigma on the custody decision.
To meet this purpose two studies were conducted. The purpose of the first study
was to gather exploratory information through in-depth interviews from legal
service professionals including district court judges, attorneys, guardian ad litems,
and court evaluators regarding their experience with lesbian mothers seeking
custody and to learn about the legal proceedings involved with these custody
decisions. They will be referred to as the "legal respondents".
The second study served to assess tendencies to stigmatize lesbian mothers
by surveying citizens of urban and rural counties within Colorado. This sample
will be referred to as the "survey respondents". Several hypotheses were generated
from the review of the literature, the legal opinions from custody cases involving
lesbian mothers and the interviews conducted in the first study. Two of the
hypotheses came from the legal respondents who claimed that the location in
which the case is tried impacted the decision of the judge. They asserted that rural
counties, assumed to be more conservative and religious, would pressure the judge
to decide against the mother. The judge was also thought to be influenced by
simply living in a rural community and supporting the commonly held assumptions
about lesbian mothers. The two hypotheses are that rural areas will indicate a
higher tendency to stigmatize a lesbian mother than would urban areas and that the
22


higher the level of religiosity, the higher the tendency to stigmatize. These
corresponded to a third hypothesis which stated that the lower the level of stigma,
the greater the liklihood of recommending custody to the lesbian mother. Legal
respondents thought that if the area in which the case is tried, rural or urban,
indicated a tendency to stigmatize a lesbian mother then the judge would respond in
a similar manner and therefore would deny custody. Conversely, if the area in
which the case is tried indicated no tendency to stigmatize a lesbian mother then a
judge would presumably respond by not denying custody.
Another hypothesis emerged from legal opinions and the concerns of legal
respondents. Court opinions have cited the need for men to be considered of equal
merit to women to parent their children. Additionally, trends in child custody are
moving to support a presumption of joint custody, which supports having both
parents involved in raising the child. Legal respondents claimed that the notoriety
of men's rights groups, citing a trend toward acknowledging fatherhood, encourages
judges and others to consider the father more than they have in the past and that
putting more emphasis on this would hurt a lesbian mother because her
homosexuality would be perceived as a weakness and the father would benefit from
that. Given the proportion of judges who are male, legal respondents were also
concerned that they would favor the father in a case involving a lesbian mother,
unlike a female judge who is perceived by legal respondents to be more open-
23


minded. The hypothesis designed to target this information is that men will
indicate a higher tendency to stigmatize than women.
The final hypothesis responds to demographic information in relationship to
the characteristics of stigma. Legal respondents thought that urban areas would
indicate a lower tendency to stigmatize the mother than would rural areas. They
thought that urban areas were less conservative and religious (which is targeted in a
previously stated hypothesis) and that people in that area are perceived as more
educated and therefore less likely to stigmatize a lesbian mother. The final
hypothesis aimed at assessing this claim is that stigma is inversely related to level
of education.
24


N.otes
1. While gay fathers may experience bias in child custody suits, given the scope
of this research, the focus will be on lesbian mothers.
2. Some of this confusion is expressed by Achtenberg (1990) who says, "There
are states where the appellate courts have made it clear that a parent's
homosexuality, in and of itself, is not grounds for depriving the parent custody of
his or her child. There are also states where, despite contrary determination by a
trial court, appellate courts have decided that homosexuality, in and of itself, is a
basis upon which a parent should be deemed unfit to have custody of his or her
child" (p. 3).
25


CHAPTER 3
METHODS
First Study: Interviews with Legal Professionals
Respondents
In order to identify potential respondents, initial contact was made with a
person affiliated with the Colorado Bar Association. This person referred me to
legal professionals associated with family law. At that point the potential
respondents were phoned and asked whether they would participate in this study. If
the answer was positive, an interview date was established. In the final sample of
eleven, there were two District Court Judges, six practicing Attorneys, specializing
in child custody and divorce cases, and three court evaluators for custody cases
(one Psychologist, one Psychotherapist, and one Social Worker). Two of the
attorneys also serve as Guardian Ad Litems, one of them being the Co-Chair of the
National Guardian Ad Litem Committee. All respondents ranged in age from their
late-thirties to mid-fifties and were acknowledged by the legal community in
Denver, Colorado as being established in their professions. Seven of the
respondents were women and four were men.
It is important to note that typical of field research, this study lacks
generalizability. No assurance can be given that the legal respondents who
26


volunteered to participate in the interviews are "typical" of the general population
of legal professionals. Although reliability suffers, there is strength in the validity
of the study. Earl Babbie underscored the validity of field research by saying that,
"The kinds of comprehensive measurements available to the field researcher tap a
depth of meaning in our concepts that are generally unavailable to surveys and
experiments." (Babbie, 1995).
Procedure
Before each interview began, respondents were asked their permission to
audio record the interview and/or take notes of the interview, and they were
assured confidentiality. Respondents were also told that whenever they mention
something off the record the tape recorder would be turned off and that this
information would not be used in the analysis. They were informed that they could
terminate the interview at any given time.
Semi-structured interviews, which focused on research questions pertinent
to this study as stated on the interview guideline, lasted approximately one hour
each and were conducted at the office of the respondents. All of the respondents
finished the interview and showed excitement and enthusiasm. Upon completion of
the interview, each respondent was asked for suggestions of legal professionals
27


she/he knew who might wish to participate in this research. A letter of thanks was
sent to each respondent within one week of the interview.
Interviews were transcribed and coded for patterns as well as differences:
Field notes, which were written after each interview, were used to assess the
progress of particular lines of inquiry to allow for new ideas to be identified-
whether useful or not and to think aloud as the qualitative data were analyzed
(Johnson and Johnson, 1990). Babbie (1995) supported this method of analysis and
also cautioned that a risk of field research is that the observer may take note only of
what supports the theoretical conclusion. To avoid this, he suggested augmenting a
field study with a quantitative observation. The following section describes the
quantitative study that was conducted.
Second Study: Survey of Citizens of Colorado
Respondents
In order to test the hypotheses outlined above, rural and urban residents of
Colorado were surveyed. To obtain a representative sample, the sixty-three
counties in Colorado were initially stratified according to population size based on
data from the 1990 Census. Counties with a population size of 35,001 and above
were defined as urban. Counties with a population size of 35,000 and below were
defined as rural. There were 11 urban counties and 52 rural counties. Once
28


stratified by population, one county was randomly selected from each group.
Arapahoe County was selected from the urban group. Crowley County was selected
from the rural group.
The County Clerk's Office of each respective county was contacted by
telephone to inquire about purchasing the voter registration list. A formal letter of
request was sent along with a check to purchase the list. Voter registration lists
were selected as the sampling frame because they are fairly comprehensive,
accessible and the cost is modest. This list does not contain citizens of the county
who are younger than 18, citizens who did not register to vote, or citizens who had
not voted in the last two general elections, and residents who legally cannot vote.
Crowley County
The voter registration list from Crowley County was provided on paper.
Each person listed was assigned a given number between 1-1826 (the total number
on the list). Using a random number generator on Microsoft Excel, 400 numbers
were generated. Starting from the order in which they were generated, each number
was matched to the corresponding name. Only one person per household would be
selected, up to 200 names. This was the total sample size for each particular
county. Once an individual was selected, all other individuals from that household
were disqualified from being selected. After the 200 individuals were selected,
29


each was sent a survey on colored paper for research purposes, to indicate they
resided in a rural area.
Arapahoe Countv
The voter registration list from Arapahoe County was provided on back-up
diskettes used to compress data to transfer from a VAX "UNIX" system to a PC
DOS system. Data were in an ASCII delimited format. Data were then read into a
spreadsheet. All unnecessary data were partialed out. This included precinct
numbers, house district numbers and stray characters. The data were then
reformatted to indicate names, address, zip code and telephone number. This
enabled a more effective transfer to address the envelopes for the survey. Each
person was given a code number among 1-16,364 (the total number on the list) and
then the list was printed on paper. Using a random number generator on Microsoft
Excel, four hundred numbers were generated. Going in order of how they
generated, each number was matched to the corresponding name. Only one person
per household would be selected, up to 200 names, the total sample size for each
particular county. Once an individual was selected, all other individuals from that
household were disqualified from being selected. Residents living in rural areas of
Arapahoe County were also discarded if their number was generated. Rural parts of
Arapahoe County included Bennett, Deer Trail, Strasburg, Watkins and Byers.
30


Once the 200 individuals were selected, each was sent a survey on standard white
bond paper for research purposes, to indicate they resided in an urban area.
Respondent Characteristics
Two hundred names were randomly selected from each county. Twenty of
those four hundred people were not able to be reached because the address given
from the voter registration list was incorrect. Eleven of those names were from
Crowley county and eight were from Arapahoe county. Thus, the total number of
potential subjects was 380 of which 109 people completed the questionnaire giving
a 29% response rate. 50 of those respondents were from Crowley county and 59
were from Arapahoe county. Forty percent of respondents were men while sixty
percent were women. Eight of the randomly selected people declined participation.
Four were from Arapahoe county and four were from Crowley county. Two of the
randomly selected people had died, one was from Arapahoe county and one was
from Crowley County. The mean age of the respondents was 59. Ninety-five
percent considered themselves Caucasian/European American. Five percent of the
respondents considered themselves native American, Hispanic or Indian.
31


Procedure
A letter of request for permission to use human subjects for this study was
submitted to the Human Subjects Research Committee, University of Colorado -
Denver. The request was approved.
A cover letter was attached to each questionnaire explaining the subjects
rights by participating in the research, directions for completion of the
questionnaire, how to submit it for inclusion into the study and the responsibilities
of the researchers to maintain confidentiality as specified by the Human Subjects
Research Committee.
The questionnaire was then mailed to the subjects. A self-addressed and
stamped envelope was included with each survey to make it as effortless as possible
for the subject to return the questionnaire by the given deadline. Each respondent
in the sample received a questionnaire that had twenty-two items and one vignette
with a forced choice question. The estimated time for completion of the
questionnaire was about twenty minutes. Respondents who wished to receive
results from the study were asked to complete the final page of the questionnaire
and return it to the address listed. The final page asked for their name, address and
telephone number.
Respondents were given two weeks to complete and return the
questionnaire. Upon receipt of a questionnaire, an identification number was
32


assigned to each survey. Other categories were coded as described in the
measurement section. The final page of the survey, if included, was given the
identical identification number as was assigned to the survey and was then
separated from the survey to maintain confidentiality. A person unfamiliar with
this study separated the surveys and assigned the identification numbers.
Respondents who completed the final page, and therefore would like the
results of the study, were sent information within one month of completion of
the study.
Measurement
The questionnaire consisted of four sections. In section A, respondents
were asked in forced choice items to state their personal history of child custody.
They were asked questions related to their involvement in a child custody case,
their relationship to the child, and the year it occurred.
Section B listed twelve Likert scale items ranging from strongly agree to
strongly disagree. Each item was designed to measure the tendency to stigmatize
related to common assumptions regarding lesbians and parenthood. Tendency to
stigmatize was measured by a score ranging from one to five with one indicating
the lowest tendency to stigmatize on a particular item and five indicating the
greatest tendency to stigmatize based on a particular item. A total tendency to
33


stigmatize score was then calculated by totaling the scores of the twelve individual
items and then calculating a mean score. Here forward this mean score will
referred to as mean stigma score. An example is the item, Gay parents tend to
raise gay children. This item was designed to measure the tendency to stigmatize
in relation to a common assumption. Given the options of strongly agree to
strongly disagree, the item was coded such that strongly agree received a score of
five and strongly disagree received a score of one. A respondent who chose
strongly agree would therefore have a higher stigma score for that item than a
respondent who chose any of the other options. All twelve of the items were
coded and totaled so that each respondent received a total score from which a mean
score was calculated. This mean score is the measure of the respondents tendency
to stigmatize.
Section C was a vignette describing a custody case involving a lesbian
mother. Respondents were asked to make the custody decision. Four choices were
offered; the father should get sole custody, the mother should get sole custody, they
should have joint custody, and other, where respondents could explain any other
choice they would prefer, is analyzed in the following chapter. The choice of
custody was used as a cross-reference with total stigma in the analysis of the
hypothesis that men will indicate a greater tendency to stigmatize than women.
34


Respondents were then asked to explain their decision. Explanations for the
custody decisions were also reviewed.
The final section focused on demographics. Respondents were asked to
state their sex, date of birth, ethnicity, occupation, level of education and
religiosity. Level of education was measured as number of years in school.
Religiosity was measured on a scale of one to ten with one being not religious at all
and ten being very religious.
Respondents were identified as rural or urban by the color of the paper used
for the questionnaire. White paper indicated urban. Colored paper indicated rural.
35


CHAPTER 4
RESULTS
First Study: Interviews with Legal Respondents
For custody cases, which end up in court, many judges ask for reports from
court appointed evaluators and Guardian ad litems. We asked our respondents in
actuality how much weight is given to these recommendations. All of the
respondents stated that in custody decisions, especially with lesbian mothers, expert
testimony from Case Evaluators (court appointed psychologists, psychiatrists,
medical doctors and social workers) are given great weight. There was a consensus
among them all that these reports are carefully read and everything mentioned
within them are seriously considered. The judges concurred with this by stating
that, even though these reports are not understood as the only sources for
information, they play an integral part in decision making. The evaluators
themselves stated that they do not take cases unless assigned to the case by the
court or approached by both parties to complete evaluations. About half of the time
evaluators are brought into the actual hearings and cross-examined by the attorney
of the parent who does not agree with the recommendation. According to
respondents, the purpose of these evaluations is to determine what is in the best
interest of the child or children. Evaluators interview primary parties, the
36


biological parents, when applicable the ancillary parties, step parents, grandparents,
uncles, aunts, and other people who would have regular access to the children),
and if the children) is (are) five years old or older, they also talk with the child
(ren). Through these interviews, psychological tests, home visits to watch the
actual interactions, and completed checks with cross references and psychological
and developmental dynamics are assessed before making a recommendation to the
court.
Guardians ad litem (GALs) are also appointed by the court to make
recommendations as to what is in the best interest of the children) regarding
parenting qualities and custody decisions. They talk to the children), school
teachers, day care workers, and to anyone who wishes to talk to them about the
issues (the therapist, the pediatrician and whoever else is involved with the family).
Often the courts direct a GAL to begin with an investigation, especially when the
situation is so escalated that the parties are spending all their time and money
fighting in court and therefore, damaging or neglecting the kids. The idea to
engage the GAL is to try to sort things out, calm down the parties, and show them
alternative ways to negotiate the issues without making any psychological
evaluations. Having a GAL on the case is a much more common procedure and
evaluators are only assigned for extra expert information highlighting a different
focus. As one Guardian ad litem mentioned:
37


There are some counties, like Arapahoe county if custody is in dispute there
is automatically a GAL appointed to the case. That is becoming increasingly true
of the other counties.
The court and or the parties may then request supplementary evaluators. The
evaluators reports can not be given to the people interviewed and assessed, they
can only be released to the attorneys, judges, and GALs. Evaluators reports are
basically from a psychological perspective; in many cases they work together with
GALs, as a GAL can help more in determining the custody decision by attempting
to get a more complete picture of the family background. They relay this
information to the evaluators to help them with their assessment techniques. If
there is conflict between the parents the evaluators can not be involved whereas a
GAL can try to resolve the problem. According to a psychotherapist who also
works as a court appointed evaluator:
I am only a slide taking a look at one picture, and report that picture to the
court to help make their decision. The GAL is a moving picture, they start with the
family and stay with the family for a prolonged time.
Whereas there are cases in which a GAL, who might be an attorney performing this
service as a volunteer, does not have to make a recommendation, evaluators are
required to present their findings to the court as they are paid to do so. GALs
sometimes act as mediators between parties and their lawyers.
38


Nationwide, there is group of Guardian ad litems trying to achieve written
standards. In some states GALs can work without a law degree, in Colorado,
exclusively, guardian ad litems must have a law degree. During the last three years
attorneys who work as GALs have been developing standards for guardian ad
litems in conjunction with the Colorado Bar Association. Judges stated that they
are very interested in what the GALs have to say because they believe GALs
conscientiously do their homework and objectively work for the best interest of the
child. GALs also examine (usually in a period of 14 days) criminal records, and
drug and alcohol abuse reports before making a recommendation. Judges agreed
that GALs provide them with a valuable service and often times because they are
volunteers they are much less expensive than the evaluators. It is rare that courts
would not adopt GALs recommendations. The following is a GALs comment on
this issue;
I can V say that the guardian automatically will be given 100% weight, but
remember, usually they work with judges in front of whom they practice regularly
and they have proven in past to have backed up what they have said by presenting
admissible evidence and cogent arguments. In cases where the court also requires
evaluators they would also be considered as being highly credible sources because
they come in with training relevant to children.
In some cases parents are required to participate in a parenting program called
parenting after divorce. It is usually a four hour seminar which according to one
judge aims:
39


to tell parents O.K. so you are not married anymore but you are still going
to be Mom and Dad to this kidfor forever.
Most of the time, guardians ad litems either administer these programs or design
them.
We then asked our respondents whether in custody decisions the mothers
sexual orientation becomes an issue. Both judges said that is appropriate to bring
up the sexual orientation of the mother as it possibly may affect the child and they
would then have to decide whether there are any adverse effects to be considered.
On the other hand, attorneys, guardian ad litems, and court evaluators agreed that
the parents sexual orientation should be irrelevant in custody cases as it is not
listed in the statutory criteria. Evaluators do not address the parents sexual
orientation in their reports unless they are specifically asked to assess its effects on
the child; they focus on the quality of the parent-child relationship. Even though
the respondents did not rule out the possibility that a homophobic attorney or
evaluator may try to inflict a bias into the case, all emphasized the role of the judge.
Since the judge is the one who ultimately makes the decision his or her
biases were mentioned as being extremely influential. Judges, according to the
evaluators and GALs, should focus on inappropriate behavior in front of the child,
parenting qualities, and the quality of the relationship between the child and the
parent regardless of the parents sexual orientation, as their main concern is to
40


determine what is in the best interest of the child. However, invariably all of these
respondents, but the judges, shared their uneasiness regarding judges stereotypes
and biases. As one attorney commented:
This should never be brought up in court as it is not in the statutory criteria,
but when and if it somehow does, you see judges being affected by it. They are only
human. In theory it should be stricken from the record and again theoretically the
judge has to wipe it out of his/her mind. This is not what happens when you deal
with a homophobic or a seriously conservative, narrow-minded judge. The judge is
like a king or a queen on the bench and they do whatever they damn well please.
Including the judges, all of our respondents agreed that judges are given too much
latitude in determining what is in the best interest of the child. Attorneys
mentioned that if they could prove that a judge was prejudiced then they would try
to file a motion for a change of venue, to get out of that courtroom, but as this is
very difficult to do, they then rely more on evaluations of experts. Judges stated
that they find it very challenging to determine what is in the best interest of the
child as it is not clearly stated what factors should be taken into account and how
much weight should be given to each factor. The attorneys, evaluators, and GALs
also mentioned that where (in which county) the case is being tried makes a big
difference since some counties are known to have homophobic judges, or in rural
counties, because of the pressures judges may perceive from the general public,
they may rule against the homosexual parent solely based on the sexual orientation.
41


We wanted to explore whether the age of the child of a lesbian mother
makes a difference when it comes to custody decisions. Other than a court
evaluator and an attorney who without any hesitation said that it makes no
difference to them and to their cases, other respondents acknowledged the
importance of the childs age. Based on their responses, the judges are more
inclined to listen to the child and take his/her wishes and concerns more seriously if
the child is approximately 10 years and older. If the child is younger, judges then
determine what is in the best interest of the child without focusing strongly on the
childs input. The common understanding was that teenagers would be more
affected by the mothers same sex orientation than the younger children for
adolescents themselves are developing their own sexual identities and as a result are
seen being more prone to confusion. Court evaluators and guardian ad litems
reports, therefore, become extremely essential when teenagers are in question.
According to these respondents, though, if the child in question is doing well the
judges decision is less affected than if the child exhibits problem behavior such as
loss of sleep, doing poorly at school, or changes in social behavior. They also
frequently reported that how the child is being treated by his/her peers emerges as
an issue. As they focus on parenting qualities and parent-child relationship, if the
lesbian mother is a better parent, then they recommend that she gets the custody.
While making this suggestion they focus on the negative peer treatment and if this
42


needs to be addressed then they also propose family therapy, child oriented therapy,
bringing the child into contact with the parents heterosexual friends, etc. They
face some cases where the child actually wishes to stay with the lesbian mother but
rejects it overtly because of the peer pressure. Since through this action the child
may feel that he/she betrays the parent, they feel that therapy and other
psychological counseling may help the child to come to terms with these issues.
However, if the child is adamant about not living with the gay parent, then, even if
the lesbian parent comes out to be the better fit parent, they recommend that she
does not acquire the custody.
When asked how they prepare a custody case when they work for the
lesbian mother, attorneys stated that they do not prepare these cases any differently
than any others. However, they added that they would definitely attempt to get a
well-known evaluator (expert) who has been involved in these types of cases in the
past, one who understands the issues, knows the literature, and would not
discriminate against a lesbian because of her sexual orientation. They prepare their
clients that the decision would be affected by who the judge is, where the case is
being tried, how the client comes across, and how much the father is bothered by
her sexual orientation. They would tell the mother that her chance in this custody
battle is no more than 50% (much less than a heterosexual mother), but they would
not discuss more than this as they believe that each decision also depends upon the
43


particular facts of each case. In instructing the mother for the trial, they emphasize
what she should expect within the courtroom. As the courts are, in general, moving
in the direction of being open-minded toward father custody, attorneys, therefore,
cannot guarantee the mother that she would walk out with the custody of the child
regardless of her sexual orientation. Additionally, representing a lesbian client
always brings a nagging fear that one is going to draw a homophobic judge. They
stressed the point that the real issues are and should be concerning the best interest
of the child and to determine who is the better parent. Therefore, they believe
focusing on the sexual orientation of the parent would allow the court to forget the
real issue. Experts would handle that part, by preparing their client to talk about
her abilities as a parent, to explain to the court why she is a better parent, to have
witnesses to back her up, and to talk about her history of bonding with the child.
They knew that in these custody cases the lesbian mothers lifestyle could be an
issue, but as long as what the client does in front of the child is appropriate then it
could be handled in the trial. Just like they would expect from any other parent,
they insisted that their clients clean up their act, pay their bills, refrain from alcohol
and drug use, spend time with the child, and even though it should not affect the
court, not to bring their new girlfriend/partner into the courtroom. Some of the
court evaluators mentioned that their assessment involves teaching developmental
issues, also, especially to the mothers of teenagers, so that they make sure that the
44


mother understands them and is able to provide the child with whatever support the
child might need. They pointed out that men usually are economically in a better
position and can pay for high-priced experts which may provide them with an
incremental advantage. These court evaluators also said that they arej sometimes
perceived as immoral by the observers, like the newspaper reporters, who watch
them support the immoral lesbian mothers. Respondents (evaluators and GALs)
stressed the importance of presenting scientific evidence firmly and with integrity,
i
without judgment, but with clear objectivity as they may be against individuals who
1
testify based on rumors or on their stereotypes.
I
We also asked the respondents about the existence of custody standards and
what changes could be expected in the years to come. Some specified that first of
i
.
all the law should redefine what family is as our current definitions reflect the
stereotypes especially about gay and lesbian families as they are not legally bound.
They added that the law also should make it clear what the exact characteristics of
l
I
I
a good parent are as what is best for the children does depend solely ion these
definitions. In general, they all agreed that the best interest of the child standard
and the focus on the childs well-being in Colorado is a good standard] given the
wide latitude judges have, and they did not expect it to change in the near future.
i
I
Even though they pointed out judges possible biases because of religious, political,
personal, or social reasons, they concurred that the expert reports and guardian ad
45


litems involvement with the cases provide balance and may offset possible biases.
One attorney voiced his opinion in this matter:
l
1
There is a link between in what direction the society is moving and in what
direction the court is moving. The court is a reflection of the society, of where
people live, and what pressures they put on the judges. The appointment of the
judges is another important issue. District Court judges are appointed by the
Governor, the County Court Judges by the Mayor. It depends whether you have a
democrat or a republican in power. In some cases being a lesbian could be a big
strike against you. But this is the best standard we have and we try to make the
best out of it.
I
When they were asked about consistency of the standard, they reported that to have
consistency with any standard would be almost impossible as there could always be
!
subjective interpretations, but they were extremely favorable that the existing
standard promotes parents to show affection to the child and keep in contact with
the child, that courts are focusing more on good parenting and joint custody, paying
i
I
great attention to child needs, examining the existence of verbal, sexual, and
physical abuse, emphasizing parents emotional stability and mental health, taking
I
research into account, and relying more and more on court evaluators and GALs.
Court evaluators spoke of a desire to have more standardized evaluation procedures
and mentioned that the Metropolitan Interdisciplinary Committee on Child Custody
has been working on these procedures, however, they also complained about not
being able to reach an agreement among themselves. Judges and attorneys seemed
to be content with the existing standards; the only future changes anticipated were


in the direction of teaching parents how to co-parent after divorce and promoting
interaction between former spouses. A need for specialized family courts, courts
i
being more involved in parenting issues, more trained judges in family issues so
that one did not have to wait to get into court, were unanimously discussed.
i
I
We asked our respondents whether the sexual orientation of the mother
I
i
could be brought forward to change the existing custody arrangement. Based on
i
their accounts, this in and of itself would not be enough. For a custody change the
i
court needs to be presented with evidence of changed circumstances or that the
mothers behavior has become clearly unacceptable (such as demonstrating sex in
front of the child ). If the mothers behavior starts bothering the child such that it
is obvious to teachers and others who are involved with the child, then it could be
argued as changed circumstances. Attorneys and court evaluators concurred that
most of the time what affects the child(ren) is not the parents sexual orientation but
parents belittling one another, conflict between the parents, and Dad calling Mom
immoral or sinful. How the mother, on her own and with the child, handles this
situation is regarded as very important for her case. They pointed out that most of
i
the time the mothers behavior is very discreet, but fathers (and other relatives)
make the case public and then turn around and complain about their children being
j
stigmatized. They insisted that in these cases there should be parenting education
i
for both parents mandated by the court.
47


What happens when the mother is not discreet was another question asked
of attorneys, evaluators, and GALs. They noticed that if the mother, for example is
i
I
active in the gay communitys organizations or lives openly with her!partner, as
long as the child with the help and support from the parents can understand this
j
lifestyle and handle the possible notoriety around these issues, the mouthers
lifestyle should not be a problem. In contrast to the judges sentiments, court,
I
evaluators favored mothers affectionate behavior toward her partner and they
I
!
encouraged the mothers to constantly ask their children) how things are at school
i
and in the neighborhood so that if the child is faced with discrimination he/she can
be removed from that situation.
Even though attorneys, court evaluators, and GALs kept insisting that the
stigma factor is not a nexus, they also invariably pointed out that it is lip to the
j
judges discretion not to give custody to the mother simply based on her sexual
orientation. Because of this wide latitude, judges are not obliged to forin their
I
decision on any sort of substantial evidence. The amount of political clout some
i
religious groups possess in certain regions was mentioned as a mitigating factor
affecting judges decisions. Court evaluators can present current research,
however, if the judge is him/herself prejudiced and believes that homosexuality is
immoral, or if the judge feels the pressure from a conservative region then the judge
can rule against the mother by taking into account only a part of the evidence or by
48


I
I
not taking evidence into consideration what so ever. The only legitimate
I
justification the judges then need to give is stigma within the society, peer pressure,
j
and possible future problems in the childs mental and emotional well-being.
Consequently, they claim that their decision, therefore, is in the best interest of the
child. According to one attorney:
i
I had a case in Greeley where I had an evaluation in the mother's favor,
several experts opinions in the mothers favor, and several witnesses praising her
parenting skills. Dad only had himself. The judge didn V even listen io any of the
evidence I presented, he, boom, gave the kids to the dad. He said given our society
this was in the best interest of the child. He chose to believe only what the dad
said, yes, but this is his prerogative, he has this discretion. We all know that all of
our own experiences in life, our own prejudices, and our own personal beliefs do
color what we want to believe, right? This is not an issue about being fair.
Second Study: Survey of Citizens of Colorado
To test the first hypothesis, which states that the rural area will have a
greater tendency to stigmatize than the urban area, a t-test was conducted using
i
j
mean stigma scores. The mean stigma score for the rural group was 2.98 (from a
scale of 1-5). The mean stigma score for the urban group was 3.05. Thle difference
I
between the means for the two categories was not statistically significant.
The second hypothesis stated that the higher the level of religiosity, the
greater the tendency to stigmatize. An ANOVA test was conducted using mean
49


stigma scores by level of religiosity. The critical F = 1.83. The F score was 3.9109.
This indicates significance and supports the hypothesis.
The third hypothesis stated the lower the tendency to stigmatize, the greater
the likelihood of recommending custody to the lesbian mother. Seventy nine
percent of respondents selected joint custody. Fourteen percent of respondents
chose the father having sole custody of the child. Six percent of respondents
selected "other" by explaining that they did not have enough facts to make a proper
decision or that they would not consider either parent because divorce and
homosexuality are wrong. One of respondents thought the mother should get sole
custody. Respondents were grouped by selection each made for custody then a
mean stigma score was calculated. Respondents who decided that the father should
have sole custody of the child had a mean stigma score of 3.6. Respondents who
decided that the mother should get sole custody had a mean stigma score of 2.4.
Respondents selecting joint custody had a mean stigma score of 2.87. Respondents
selecting "other" had a mean score of 3.5. This indicates support for the hypothesis
that the lower the tendency to stigmatize, the more likely the lesbian mother will
get custody. More importantly, these scores may also indicate that the lower the
tendency to stigmatize, the more likely the mother will not be denied custody, as
indicated by a mean stigma score 2.87 for those who preferred joint custody.
50


To test the fourth hypothesis, which states that men indicate a greater
tendency to stigmatize than women, a t-test was conducted using mean stigma
scores to compare men to women. A t-score of 3.11 (P(T<=t) 0.001) at .05 alpha
indicates significance for men having a higher tendency to stigmatize than women.
This supports the hypothesis.
The fifth hypothesis, which states that tendency to stigmatize is inversely
related to level of education, was tested by calculating mean stigma scores by
educational level to compare means. Respondents with a middle school education
level had a mean stigma score of 2.9. Respondents with a high school education
level had a mean stigma score of 3.0. Respondents with one to two years of college
experience had a mean stigma score of 3.1. Respondents with three or more years
of college had a mean stigma score of 2.9. Respondents with a graduate level
education had a mean stigma score of 3.0. Respondents who indicated "other" had a
mean stigma score of 3.4. Based on these mean scores, no significant difference
was found to support the hypothesis that tendency to stigmatize is influenced by
educational level of the respondent.
51


CHAPTER 5
DISCUSSION
A divorce situation inspires a myriad of personal challenges and competing
demands. Some of these challenges may include that the roles and structure of the
family need to be redefined, the cause for the separation may be troublesome and
have lingering effects, the children need support, the legal proceedings may be
tedious and the personal costs incite new anxieties. The greatest anxiety may be the
custody process. During this proceeding the mullet-faceted lives of those involved
with the child are scrutinized to determine with whom the child will live. Court
evaluators, guardian ad Litems, judges, attorneys, family members and parents
participate, among others, in this process. All of them must ask the same
important question when faced with a custody proceeding: What factors must be
considered to make the best determination for the child? The major factor of
interest to this research study was sexual orientation of the mother, i.e., whether or
not and why or why not sexual orientation be factor? The answers to these
questions offer varied implications.
Judges said that it is appropriate to bring up the sexual orientation of the
mother as it possibly may affect the child. They would then have to decide
whether there are any adverse effects to be considered. Respondents to the survey
52


supported the judges reasoning. Giving a mean score of (4), respondents disagreed
with the item, Custody of the child should be decided without knowledge of the
parents sexual orientation. Attorneys, GALs and court evaluators felt it is
irrelevant and, furthermore, they pointed out that it is not cited in the statutory
guidelines of considerations. Why would judges want to know the sexual
orientation, in this case, of the mother? They claim that it relates to the age of the
child because if the child is old enough, the judge would want to ask the child with
whom he/she wants to live. In fact, all but two of the legal respondents
acknowledged age of the child as a factor, in terms of being able to ask the childs
preference. Survey respondents agreed by stating, "When deciding custody, it is
important to ask the child with whom he/she wants to live." Referring to the
vignette, one survey respondent noted, Is Susan sexually active with a woman or a
close intimate companion? Ask the childs opinion and be respective of both
interests. Presumably the adolescent child is more likely to be confused about
sexual identity than a younger child. Anticipating repercussions from this, court
evaluators and GALs explore the dynamics of the family to ensure the child is
getting proper support. Attorneys prepare by making sure the mothers life is in
order so there are no questions regarding her abilities to provide a permanent and
stable home for the child.
53


Other legal professionals believe that in Colorado courts, at least in theory,
the nexus approach is preferred over the per se classification, when dealing with
child custody issues involving lesbian mothers. However, based on the interviews
it became clear that depending on the county where the custody trial takes place
(rural versus urban) a lesbian mother can be denied the custody of her children)
based solely on her sexual orientation. One possible explanation for this, offered
by the legal professionals who were interviewed, is that the judges may feel
pressure in rural communities from the more conservative residents. Judges
would be pressured to support the sentiments of the community which do not
accept homosexuality. The survey results disagreed.
The second study indicates that region does not have an effect on tendency
to stigmatize. This may be due to the situation of stigma being created out of
perception not fact. Arapahoe county, for example, may be equally as conservative
as Crowley county and may have a similar tendency to stigmatize a lesbian mother.
The perception from legal respondents, however, was that Arapahoe county was
liberal and more open-minded given the diversity of an urban setting and therefore
would not be as likely to stigmatize a lesbian mother compared to Crowley county.
Given that no difference was shown between the two counties, the perception that
Arapahoe county would be more supportive of a lesbian mother may have been
54


incorrect. This was not the only factor which showed no difference between the two
counties.
Education level did not make a difference either. This challenges two
common assumptions that rural communities and individuals with a low level of
education would have a greater tendency to stigmatize another person than
individuals who live in urban areas and those with a higher education. The mean
stigma score for the respondents in both the urban and rural areas was 3. Given the
options of the Likert scale items, this represents a neutral score. It is also
important to note that respondents were neutral about some of die most common
assumptions regarding lesbians and their children. Survey respondents scored a (3)
on the following items; gay parents raise gay children, a lesbian mother puts her
lover first and children of lesbian mothers have a difficult time figuring out their
sexual identity.
If optimistic, one may interpret that neutral scores for these items is a sign
that false perceptions regarding homosexuals is dissipating. Neutral scores from
both the urban and rural counties may also be a product of statewide attention
garnered through a ballot initiative from two years ago. This initiative sought
approval for excluding sexuality from equal protection ordinances. The initiative
may have raised awareness about gay and lesbian issues. Further research may
.55


replicate this in other states or regions where an initiative of this kind has not taken
place. Further research could examine if judges would respond differently based on
the outcome or the existence of the initiative. However, a neutral score may also
indicate that the items presented were not compelling enough to incite a stronger
position. Without a strong position, a person or community may be influenced on a
case by case basis, accounting, in part, for the inconsistency in the standard. If a
particular community is only compelled to respond to a case that happens locally
then a neutral score may be warranted and perceptions from legal professionals that
community pressures vary may be substantiated.
Unlike the Likert scale items, the vignette inspired a more extreme answer.
The custody decision, offered in the vignette, demonstrated a preference for joint
custody. Fourteen percent thought the father should get sole custody compared to
one percent who thought the mother should get sole custody, even though she is
said to be the primary caretaker indicating maternal instinct award was not a
factor. Responses to several items on the survey may have predicted this kind of
support for the father. Survey respondents agreed with the statement "a father can
be as good a parent as a mother" and they were neutral about the statement
"children belong with their mothers." Perhaps the survey respondents are open-
minded given willingness to consider the father. With mens rights groups
56


receiving more attention, this heightened awareness may have influenced
respondents to consider the father equally as competent as the mother.
Overshadowing the responses for sole custody is that 79% of respondents
preferred joint custody. This favors the lesbian mother because it indicates that
sexual orientation is not as important compared to the desire to have both parents
involved with the child. While the survey respondents claimed they wanted to
know the orientation and agreed that children of lesbian mothers are harassed by
peers they still chose joint custody, thereby validating the mother's involvement
with her child. This is consistent with the survey respondents strongly agreeing
that an ideal family is a mother, father and child. More important than the
preference for joint custody is the decision not to deny the mother custody, which
in some communities is a viable threat. As one respondent asserted, Both seem fit
parents and deserve time raising the child. Joint custody will help Dwayne be more
responsible. Susans interest in another woman is not an issue.
The overwhelming response to joint custody supports current sentiment of
wanting both parents involved in the life of the child. Realizing that courts have
tended to favor the mother and that both rural and urban populations thought the
ideal family consisted of a mother, father and child, joint custody ensures that the
father can have continued involvement with his children). In fact, while men
57


revealed a significantly higher tendency to stigmatize than women, they too,
preferred joint custody over sole custody of the father. One may argue that men
have a higher tendency because it has been difficult for them to gain custody and
the disclosure that the mother is a lesbian would only improve their chances for
success. Heightened awareness regarding fathers responsibilities for their children
may have encouraged men to be more assertive about their views on homosexual
mothers and voice their negative sentiments. In spite of this, men still preferred
joint custody, once again, affirming that the child should have both parents. One
survey respondent commented," Both parents seem to have interest and love for
the child. It would be unfair to give sole custody to one party."
Another possible explanation for the joint custody preference is that the
vignette presented an amicable relationship between the two parents. Had the
father been angrier with the disclosure of the mother's interest in another woman,
perhaps survey respondents would have chosen differently. Because their
relationship appeared relatively friendly* the survey respondents may have been
more likely to consider joint custody than if one of them felt bitter from the
divorce. The preference for joint custody must also warrant further inquiry into the
effects of stigma. Does the particular stigma matter? If the mother had been a
58


criminal or possessed some sort of disability would joint custody still be preferred?
If both possessed a stigma, would joint custody have been preferred?
The "best interest of the child" standard does not specify which "clear-cut
factors" are to be considered and how much weight each of them should be given.
Interestingly, attorneys, court evaluators, and guardian ad litems were concerned
about the wide discretion judges possess in these cases and pointed out that their
decisions may be tarnished due to political, religious, and personal pressures and
stereotypes. In spite of this, rather than offering to changes, they favored the
existing system that is characterized by them as not always being necessarily fair
and just. This is in reference to the latitude provided for a judge's discretion.
Giving the custody of the child to the lesbian mother may be in the child's best
interest when she is proven to be the better parent and the one who has bonded with
the child. Lesbian mothers, however, may face legal obstacles stemming from
unsubstantiated assumptions which prevent them from getting custody. Some legal
opinions indicate support for rulings based solely on sexual orientation, while some
research indicates no support for the assumptions used to deny custody to the
lesbian mother. Given this situation how is a lesbian mother to receive protection
from biased opinions?
59


All of the legal respondents, especially court evaluators, concluded that
courts must rely more heavily on the expert testimonies that are informed from the
social sciences and suggest ways to deal with results of societal stigma, in
particular, peer harassment. Sociologists must also work harder to further expand
existing knowledge regarding gay and lesbian families. Researchers interested in
family issues are encouraged to redefine "family" so those new structures, which do
not perpetuate the "ideal norms", are included in the legal definitions of family."
Further research is sorely needed to better understand the implications of court
decisions concerning lesbian mothers pursuing custody, and it is also needed to
establish and solidify communication between social researchers and the legal
system so that other stigmatized populations do not experience similar inequalities.
It also strongly suggested that legal professionals maintain their focus on the
quality of the relationships among family members rather than the structure of the
family.
60


Appendix A
Questionnaire and Cover Letter
61


February 5,1995
Dear Participant,
You have been selected to participate in a study focusing on child custody. The purpose
of the research is to assess public sentiment regarding whether sexual orientation should be a
factor in a child custody decision. You are asked to complete the survey and return it in the
envelope that has been provided for you. Participation in this study is voluntary and you are free
to withdraw your participation at any time without prejudice.
To ensure that your participation is included in the research, please complete the
following directions:
This study is being conducted as part of my Masters degree in Sociology. The research is
being supervised by Dr. D uran-Aydintug. If you should have questions concerning your rights as
a subject, you may direct those questions to the Office of Research Administration, CU-Denver,
Box 123, 80204, telephone (303)556-2770.
To ensure confidentiality, identifying information has been omitted. I am responsible for
storing all of the data. Dr. Duran-Aydintug and I are the only people who will have access to this
information. This research might be published but identifying information will be omitted. If
you would like information regarding the outcome of this study, you may complete the final page
of the survey and include it with the survey in the envelope that is provided. You may also mail
the final page of the survey in a separate envelope to the address that is listed on that page.
Again, this is voluntary.
If you have questions regarding this study, both during and after the research is
completed, you may contact me at (303)556-8306. By completing and mailing the survey, you
are contributing to science by further expanding the body of knowledge available in this field.
To my knowledge, there are no risks by participating in this research.
Thank you for your thoughtful consideration and participation in this study.
1. Please mail the completed survey back to me in the envelope that is
included bv February 24th.
Sincerely,
62


SECTION A
Have you ever been involved in a child custody suit?____yes ______no
In no, please proceed to section B.
If yes, were you
a) a parent seeking custody
b) the child
c) friend or relative seeking custody
d) other, please explain_______________________
Is that custody suit currently in progress?
___yes ______no
If no. in what year was the custody decision made?____________
SECTION B
Please Indicate the level at which you agree or disagree with the following statements by
circling either strongly agree (SA), agree (A), neutral (N), disagree (D), or strongly disagree (SD).
The ideal family is a mother, father and child.
SA A N D SD
When deciding custody it is important to ask the
child with whom he/she wants to live?
SA A N D SD
For a mother to get custody, her moral behavior
should be the most important factor.
SA A N D SD
If a competent mother is a lesbian, she should
still get custody of the child.
SA A N D SD
Gay parents tend to raise gay children.
SA A N D SD
Children who have a lesbian mother are
harassed by their peers.
SA A N D SD
Children belong with their mothers.
SA A N D SD
A lesbian mother puts her lover first
SA A N D SD
A father can be as good a parent as a mother.
SA A N D SD
It is healthy for young children to be exposed to
different views about life.
SA A N D SD
Teenagers have a difficult time figuring out their
sexual identity when they have a homosexual
parent
SA A N D SD
Custody of a child should be decided without
knowledge of the parent's sexual orientation.
SA A N D SD
63


SECTION C
The following represents a child custody case. We ask that you please read the case
study and decide for yourself what custody decision, you think, should be made.
Please circle one of the answers following the case study.
Susan and Dwayne Petrie were married for a pretty long time. Following a brief separation period,
the Petries mutually filed for divorce. Irreconcilable differences was stated as the cause. During the
custody hearing for the child, several friends and relatives spoke in support of both parents, among them
was the child's school teacher. He admired Susan's willingness to volunteer as a teacher's aid. Dwayne's
brother fondly shared stories of Dwayne taking his child on camping trips when Susan was away on business.
Following their testimonies, Dwayne and Susan both expressed concerns about the other's fitness
as a parent Susan said she deserved the child because she was always responsible for taking
care of the child. Dwayne said he was concerned for Susan's growing interest in another woman.
Dwayne and Susan each filed for sole custody of the child.
Based on the information provided, who should get custody of the child?
a) Dwayne should get sole custody.
b) Susan should get sole custody.
c) They should have joint custody.
d) Other
Please explain:___________________________________________________________________________________________
Finally, we would like to ask you a few questions about yourself, for statistical purposes.
Sex: male ____female Date of birth: / /
Race/Ethnic heritage:_______________________ Occupation:______________________________
Please check the highest level of education you have completed:
__middle school
__high school
__1-2 years of college
__3 or more years of college
__graduate school
_other, please specify____________________________________________________________
How religious are you? Please circle one number with 10= extremely religious and 1= not at all religious.
123456789 10
64


Would you like to receive the results of this research once the study has been completed?
If yes, please state your name, address and phone number so that the results can be
forwarded to you.
(Name)
(Street)
(City) (Zip Code)
(Phone Number)
You may include this information, along with your survey, in the envelope which is provided.
You may also put it in a separate envelope and mail it to:
Kelly Causey
University of Colorado
Department of Sociology
CB 105, PO Box 173364
Denver, CO 80217-3364
"Thank you"
'65


Appendix B
Interview Guideline
66


Interview Guideline forjudges, attorneys, court evaluators, and guardian ad litems
To all:
Please describe your role in the custody process.
When (under what conditions) are court evaluators and guardian ad Litems
appointed by the court?
How much weight is given to their reports and testimonies?
When does homosexuality of the mother become an issue, if at all?
when the partners live together?
when the mother is indiscreet?
when mother demonstrates affection to the partner in front of the children)?
Does homosexuality of the mother warrant a change of custody and/or visitation?
What demonstrates an adverse effect on the child?
Is stigma a nexus?
When judges refer to societys intolerance or potential harm from peers and/or
neighbors what substantiates this claim? How do they know this?
Is there enough latitude with the best interest of the child standard? Is there too
much latitude with this standard?
In light of recent custody cases (Bottoms v. Bottoms) is there a custody standard?
What can we expect to change, that is how will the custody standard evolve in the
years to come?
67


If a lawyer:
What advice do you give to a lesbian mother? How do you prepare your case?
What helps her case?
What are her chances for getting custody compared to a heterosexual mother?
68


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