08/19/2011 02:41 am ET Updated Oct 17, 2011

My Ex is Homosexual, Does This Affect Child Custody?

In today's world, with a growth in diversity and a growing acceptance of equality in society, it is not uncommon for one of the divorcing parties in a child custody case to be homosexual.

Particularly in cases of divorce, this can raise many emotions for the other spouse and may cloud their view of the things that the court can and will consider when determining custody of a child.

In theory, the government, including the courts, cannot discriminate against you based on your sexual preference. However, as a practical matter, it could make your divorce more difficult depending on where you live.

In a recognition state, for example, it should not be an issue, and the judge would need to be very careful as there could be discrimination claims.

A number of states have upheld rulings that judges cannot consider the sexual preferences of a parent in determining custody unless there is clear, convincing evidence that there will be some harm brought to the child, or some type of adverse affect on the child.

It would be a legal error for a judge to enter an order that stated that a parent received or lost custody based on factors including the sexual orientation of a parent. Courts equate that classification to making a parenting decision based on race; it is prohibited.

However, in non-recognition states it will likely depend on the judge's personal opinions on the matter, though he or she probably won't come out and say it. Judges can hide behind the ambiguous "moral fitness" factor that is used by many states as one of the "best interest of the children" factors considered when determining child custody.

Typically, these states coincide with a judicial mentality that a homosexual parent is less fit than a heterosexual parent, no matter the faults of the heterosexual parent.

In one of the more famous cases, the Mississippi Supreme Court refused to allow a minor son to live with his gay father, even though the child's mother married a man with a history of violence and substance abuse who repeatedly beat her in front of the boy. The state's highest court upheld that judge's decision, but it did reverse the same judge's order that the father's long-term partner could not be in the home--a home they owned together--when the child visited his father.

That prompted a debate: Can the court restrict children from exposure to homosexual partners of a parent and/or environments where there may be homosexual people present?

Excluding the gender of the "new flame," the main concern to most judges is introduction of any significant other during the pendency of the divorce actions.

Judges become upset when they find out that one parent has moved in their significant other and introduced him or her to the kids while the case is pending.

So if Wife left Husband and moved in with her girlfriend, the concern would be that she is exposing the child to any romantic relationship, not just a same-sex one, while the children are still coping with the fact that their parents are separating.

The fact remains that discrimination against homosexual parents after a heterosexual divorce does exist in places and from time to time it could factor into a judge's decision, even if on a subconscious level.

But as outlined in my book "The 10 Stupidest Mistakes Men Make When Facing Divorce," 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.

Joseph Cordell is the Principal Partner of Cordell & Cordell, a nationwide domestic litigation firm focused on men's family law matters. Cordell & Cordell also provides a website dedicated to informing men on the divorce process and the challenges they face. Visit for more information.