One aspect of divorce that we are receiving more inquiries about is whether sexual preference may affect a gay man’s rights to his children.
The situations are similar. A married man with kids admits to himself he is gay. He wants to tell his wife and get a divorce, but he wants to understand his rights in advance.
As a matter of Michigan law, where I practice, it cannot. The government, including the courts, cannot discriminate against you based on your sexual preference. However, as a practical matter, it could make your divorce very difficult.
This is because child custody cases in Michigan are somewhat of a free-for-all. Either parent may file a motion to obtain a court order for child custody pending a final determination and in that motion make all sorts of allegations that the other parent has to refute. Granted, Michigan’s court rules do allow the judge to sanction a party for making a frivolous argument or strike a portion of a motion that is misleading, sensational, intended to harass, etc., but that does little good if the allegations are already made. You know the saying, “You can’t un-ring a bell.” Damaging accusations against a parent (e.g., he has boyfriends around our children), however untrue, are difficult to forget.
Strategically, when I represent the parent who is less than “normal” (to use the word loosely), I file a motion for a custody order early, before the other parent has an opportunity to make those damaging allegations. I focus on all of the parent’s positive traits and how they affect the best interests of the child.
In general, the standard to apply for any custody decision is the “best interests of the child” standard. In Michigan, the family courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant.
You will find the same or similar factors in other states.
One common factor is “moral fitness.” This is an amorphous factor that only impacts the decision if it affects the children. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a moody mother who lies to the court to alienate her children from their father will probably receive less. Similarly, a father who spends time with his children, supports his children, can feed, clothe and entertain his children, etc., deserves time with his children whether he prefers men or women in love.
Courts must also analyze each parent’s proposed homes for the child, each parent’s willingness to foster and encourage a relationship between the child and the other parent, the child’s affection with each parent, any domestic violence, any physical, mental or moral impediments to parenting, and “any other factor” relevant to the particular family.
Therefore, sexual preference may play a part in your divorce, but it cannot deprive you of your rights to your children absent some affect on their best interests, considering all of these factors.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.