As gay pride is celebrated here in San Diego, it seems appropriate to look at how a parent’s sexual orientation is treated in California family law cases.
Under Family Code section 3020, subd. (d), a parent’s “sex, gender identify, gender expression, or sexual orientation” must play no part in a court’s determination of custody and visitation matters. This provision is also stated in Family Code section 3040, subd. (c) as well as Family Code section 3011, subd. (b).
Even before the enactment of section 3020, case law held that courts could not restrain visitation rights simply because of a parent’s sexual orientation. (Marriage of Birdsall (1988) 197 Cal.App.3d 1024, 1030-1031.) Even when it comes to custody as opposed to visitation, courts have long held that a nonconventional lifestyle was not disqualifying as a matter of law. (See Marriage of Wellman (1980) 104 Cal.App.3d 992, 999.)
Nevertheless, as recently as 1975, one California court said that same-gender relationships could play a role in determining custody. (Chaffin v. Frye (1975) 45 Cal.App.3d 39, 46-47.) Again, this case is probably not good law in light of the enactment of section 3020.
What California does emphasize, under section 3020, is the “health, safety, and welfare” of children. Courts also must heed section 3020’s declaration that “children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child”.
The court must also consider, under section 3011, subd. (a)(4), “the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent”.