“Is it true that, if a marriage breaks down because one spouse declares he/she is gay, the courts will award custody of the children to the heterosexual spouse?”
Old views classified gay/lesbian relationships as less stable than heterosexual ones. Modern studies have shown that this is not so. While there may still be some bias in the courts against same-sex male households — with the outdated view that the parent may be cruising bars — this view has totally disappeared in relation to same-sex female households. Certainly, the law that allows for gay adoption has helped, as have studies that show that children from gay/lesbian households usually grow up heterosexual and are psychologically healthy. The law is moving into the 21st century in recognition that all parents are to be considered equal, regardless of sexual orientation.
About 15 years ago, one of my clients was a lesbian mother in a stable same-sex relationship applying for custody of her children versus her unstable, heterosexual former husband. I was concerned, but she easily got custody. Today, that concern would never enter my mind.
Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce.