The Fourteenth Amendment of the United States Constitution grants you the right to due process and equal protection. This applies to all legal proceedings, including custody disputes over your children between you and a spouse whom you are divorcing, whether of the same or opposite sex. Unfortunately, some family law judges may hold biased views on same-sex relationships. This bias may result in a custody decision that is unfair to you, especially if you are divorcing a different-sex spouse.
It is a violation of your Fourteenth Amendment rights to deny you custody or visitation rights on the basis of your sexuality and/or gender identity. However, the bias is not always overt. You must remain vigilant and consider the judge’s actions carefully to make the determination. The UCLA Women’s Law Journal offers some suggestions on how to recognize a judge’s anti-gay bias and, if present, what to do about it.
How to recognize anti-gay bias
You can research the judge to discover whether he or she has demonstrated anti-gay bias, whether subtle or overt, outside the courtroom in comments, statements or presentations before groups. This need not necessarily be overt anti-gay sentiment, although this may make your case stronger. Support for strict gender roles or stereotypes may also be an indication of the judge’s true feelings.
You can also look for evidence of anti-gay bias in the decisions that the judge has made regarding LGBT parents and custody in the past. If there is evidence that they were unfairly restrictive, it may be evidence of the judge’s animus.
What to do about it
If the judge has made a custody decision that you feel is unfair and violates your rights, you can take it to an appeals court and ask for a reversal. If you can obtain evidence of the judge’s anti-gay bias during the proceedings, or better yet, before they begin, you may be able to file a motion to have the judge disqualified.