The family has been dramatically transformed over the course of United States history—perhaps most especially in the long post-World War II era. The civil rights movement, feminism, gay liberation, the proliferation of LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) households, the sexual revolution, and technological advancements related to reproductive health have reworked the relationships between family members as well as between families and the outside world.
These changes have improved private life for many Americans, and American law has, with significant limitations, become more inclusive of an increasing number of nontraditional families. However, this recognition of a broader array of families has brought with it new questions about child custody. Unwed fathers, LGBTQ parents, and those parents who have used assisted reproductive technologies have struggled to have their rights to custody recognized by courts and lawmakers.
While fathers had superior custody rights in the colonial period and the early years of the republic, courts began to favor mothers over fathers as early as the 19th century. Fathers still could gain custody if it was deemed in the best interest of the child, and the child was born to a married couple. This legal standard did not extend to fathers of children born outside of marriage, effectively preventing them from obtaining custody of their children. By 1972, the feminist legal revolution had dawned, and the case of Stanley v. Illinois addressed this injustice. Peter Stanley and Joan Stanley had lived together with brief interruptions for 18 years. They shared a last name and three children but were never married. When Joan died, Peter Stanley had been acting as husband and father for nearly two decades. Practically and biologically, he was his children’s father. Legally, however, he was a stranger to his children. Because Peter was not married to Joan, the children were deemed wards of the state and sent away to state-appointed guardians.
Peter Stanley contested this decision, and the case reached the Supreme Court. There Justice Byron White delivered the ruling that restored Peter Stanley’s right to custody. He ruled that denying Peter Stanley custody of his children—when Joan’s custody as an unmarried mother had been protected—was a violation of the Equal Protection clause. The state had discriminated against Peter Stanley on the basis of his gender; thereafter the Constitution protected unwed fathers’ custody rights. This case opened up the possibility of custody to all unwed fathers, but Stanley was not alone in fighting for his children during this era. A host of parents who had traditionally been denied their rights, or who were not legally considered parents at all began fighting for custody rights.
Gay and Lesbian Parents
The immediate postwar period also marked a difficult time for the custody and visitation rights of gay men and lesbians. In the early years of gay liberation, many gay men and lesbians left heterosexual marriages to live a more openly gay lifestyle. These men and women wanted to leave their spouses, but not their children. A journalist at the time explained that child custody was seen as a particular priority in the fight for gay liberation in part because “gay parents are as likely as any to want custody. Like all parents, they are attached to their children and believe that having custody will be in the best interest of the kids.”
But to do so, gay parents had to fight against a skeptical family court system. In the postwar period, gay parents almost automatically lost custody and visitation rights as soon as their sexuality was revealed to the court (by themselves, political activities, arrests, or by spouses). The situation began to improve slightly in the 1970s when organizations such as the Lesbian Rights Project and Lambda Legal advocated against these policies. For example, in 1974 the New Jersey Superior Court case In the Matter of J.S. & C. (129 N.J. Super. 486; 324 A.2d 90) a reluctant court protected homosexual parents’ visitation rights only because other criminals, such as bank robbers, were allowed full visitation rights. Such legal reasoning was troubling, but it could, and increasingly did, yield the custody and visitation results parents hoped for.
Nonetheless, most courts still posed a difficult choice to gay parents—courts refused to allow gay parents to live with their children and with their partners. This was the basis by which the courts repeatedly restricted visitation or custody rights. For instance, in Jacobson v. Jacobson (314 N.W.2d 78 (1981)), the Supreme Court of North Dakota ruled that it would not give Sandra Jacobson custody of her children because she openly declared she would continue to live with her partner. The court insisted that “Sandra’s homosexuality may, indeed, be something which is beyond her control. However, living with another person of the same sex in a sexual relationship is not something beyond her control.” Court rulings like this only reinforced the norm and influenced the choices of homosexual parents for many years.
Many gay parents still cannot consider their custody rights secure given that the law varies from state to state. In 2000, the Supreme Court rejected non-parents’ rights to seek visitation if the biological parent did not wish the non-parent to have them in Troxel v. Granville (530 U.S. 57). This has posed difficult questions for gay parents who are barred in some states from adopting their partners’ biological children or from engaging in joint adoption (whereby both gay or lesbian parents adopt a child simultaneously). Often then one partner legally retains sole custody. When couples remain together, this poses few practical problems. But following a breakup, the non-adoptive parent can lose all rights to custody or visitation of a child he or she had been raising with his or her partner.
Like Peter Stanley, these men and women may act as parents but be strangers according to the law. For instance, in the 2006 Massachusetts case AH v. MP (447 Mass. 828), AH petitioned for joint custody for her ex-partner’s biological child. The couple had decided to have children together. MP birthed the child and became “Mommy.” AH became “Mama.” Two years later, after the couple decided to end their relationship, AH hoped to continue her relationship with the child. MP fought her. The case made it to the Massachusetts Supreme Judicial Court, which denied AH joint custody because she had not yet completed her adoption of the child nor provided care that they deemed equivalent to MP’s stay-at-home care. In other words, unless couples took advantage of legal means of establishing parenthood, Massachusetts did not grant “de facto” parental rights. A mistake in paperwork cost AH the child she had helped raise.
Other states, including Virginia, disallowed second-parent adoption entirely. This means gay non-biological parents have no custody rights.
Assisted Reproductive Technology
Parents also face custody questions when a child is born with the help of assisted reproductive technology. Such questions emerged almost as soon as assisted reproduction began, including when gay men privately donated sperm to lesbians away from the watchful eye of regulators in the 1970s. Occasionally, gay men would later demand custody rights to their biological children, such as in the 1986 California case Jhordan v. Mary K. (179 Cal.App.3d 386). This California ruling recognized both lesbian mothers and the genetic father, granting the birth mother custody. But rulings recognizing all possible parents—such as this—are rare.
The New Jersey Superior Court made a more definitive stamp on issues of custody and assisted reproductive technology with the 1988 ruling In the Matter of Baby M. (537 A.2d 1227, 109 N.J. 396). In this case, William and Elizabeth Stern had hired Mary Beth Whitehead, a married mother of two, to inseminate herself with William Stern’s sperm. She would carry her biological child to term in what is called traditional surrogacy. After giving birth, Whitehead unexpectedly decided she wanted to keep Baby M. The Sterns and Whitehead both claimed custody. Once the case reached the New Jersey Superior Court, it ruled that the surrogacy contract was void. The ruling gave custody of Baby M to William Stern as the biological father and granted Whitehead visitation rights as Baby M’s biological mother. Elizabeth Stern lost her rights as Baby M’s adoptive mother. The Baby M case instigated a wave of backlash from many states, including a near complete bans on surrogacy in Arizona, New York, Michigan, and Washington DC.
Nonetheless, the possibility of gestational surrogacy has unsettled the restrictions on surrogacy. In gestational surrogacy, a surrogate mother carries the fertilized egg of another woman, making her biological relationship with the child gestational rather than genetic. This has seemingly strengthened the genetic mother’s legal rights while weakening those of the gestational mother. Nonetheless, laws still vary greatly by state. For instance, Washington, D.C., still prohibits surrogacy, and the law states that any participants in surrogacy can go to jail.
In Virginia, an evolving set of statutes determines custody when surrogacy is involved. The commonwealth passed the first set of surrogacy statutes in 1991—shortly before the Virginia Court of Appeals considered a case that dealt with an amicable surrogacy contract. In this case, Baby Doe v. Doe ( 421 S.E.2d 913 ), the gestational mother did not claim custody rights; instead a guardian was appointed by the state to protect the infant’s legal interests and challenge the custody status of the child. Ultimately, the court decided to recognize the original contract, and Baby Doe stayed with the Does. But Virginia law has continued to evolve.
Most recently, the General Assembly revised the statute in 2010. Currently Virginia requires all parents to petition the commonwealth for a surrogacy contract, which is granted only when a home visit is complete, the court appoints a guardian for the child, and all requirements for a surrogacy contract are met. At least one of the intended parents has to be genetically related to the child and the “intended mother” who engages a surrogate must be infertile, unable to carry a child, or unable to do so without a significant medical risk. These requirements are extensive, and the last provision limits those who “qualify” to use a surrogate, making surrogacy particularly difficult for same-sex couples.
Under all surrogacy contracts, the gestational mother and her husband (if any) have custody of the child. It is only once the gestational mother and her husband relinquish custody to the intended parents that custody changes hands. Currently, gestational parents have three days to do so. (Previously, state law provided 25 days.) Virginia’s current law on surrogacy leaves open questions for many parents, particularly gay and lesbian parents.
The recognition of parental custody rights has become much more complicated as we, as a society, have expanded our definition of family. The complexity of this legal system mostly allows more parents to be involved in the lives of their children, but laws vary significantly across the United States and are constantly evolving.
Hinson, Diane, and McBrien, Maureen. “Surrogacy across America: Both the Law and the Practice,” Family Advocate (Fall, 2011), pp. 33-36.
Larson, Meredith. “Don’t Know Much about Biology: Courts and the Rights of Non-Biological Parents in Same-Sex Partnerships,” Georgetown Journal of Gender and the Law. Vol. 11, Issue 3. (2010), pp. 869–886.
McNaughton, Chris. “Who Gets the Kids?” Body Politic (June, 1977), p. 12.
Polikoff, Nancy. Beyond Straight and Gay Marriage (Boston: Beacon Press, 2008).
Rivers, Daniel Winunwe. Radical Relations: Lesbian Mothers, Gay Fathers, & Their Children in the United States since World War II. (Chapel Hill: North Carolina Press, 2013).
Smith, Matt. “FDA Considering 3-parent Embryos.” CNN (February 27, 2014).