Child Custody

Social issues are sometimes slow to affect custody decisions. Homosexual parents still pose dilemmas for judges. Although in many cases homosexual parents have won or retained custody, the Virginia Supreme Court in 1995 reinstated a trial court order awarding custody of a boy to his grandmother because the lesbian mother's sexual orientation was deemed potentially harmful to the boy (Bottoms v. Bottoms, 249 Va. 410, 457 S.E. 2d 102). Similarly, the Alabama Supreme Court in Ex parte H.H., 830 So. 2d 21 (Ala. 2002) refused to return custody of a mother's children to her, despite the mother's assertions that the father, the custodial parent, had abused the children. Although the majority in the decision did not address the fact that the mother was a lesbian, a concurrence written by the chief judge of the court suggested that the court should consider homosexuals as presumptively unfit to have custody of minor children. In contrast to these types of decisions, many courts have been more willing to grant custody to gay and lesbian parents when the parents are a same-sex couple. See also GAY AND LESBIAN RIGHTS.

Although the U.S. Supreme Court ruled in 1984 that removing custody from a white child's mother because of her marriage to a black man would be discriminatory (Palmore v. Sidoti, 466 U.S. 429, 104 S. Ct. 1879, 80 L. Ed. 2d 421), a Tennessee court in 1986 removed custody from a white mother who was living with a black man. In that case, when one of the children's guardians died two years later, the mother, who had by then married the man, was awarded custody of one of her children (Smith v. Smith, 1989 WL 73229 (Tenn. App).