How Domestic Abuse Misinformation Hurts Both Women and Men

When my book, Domestic Violence: The 12 Things You Aren’t Supposed to Know, was published eleven years ago, my greatest fear was that it would be misinterpreted as a defense of violent men — or worse, as a denial that violence against women is a problem. As I emphasized and reiterated numerous times throughout the book, my purpose was not to deny or minimize violence against women. Rather, it was to take to task those who have falsified data and concealed information in order to portray all men as violent and all women as victims. As I explained:

[I]t would be regrettable if anything in this book were to be used as a basis for eliminating programs and services for abuse victims…. Calling attention to the untold half of the story about domestic violence should only serve to increase awareness that the problem is even more widespread than we may have thought before; that when the male victims are added in, there are even more victims than we previously thought. If anything, the information in this book should therefore impel more, not fewer, programs; more services, not fewer; more research, not less; and ultimately, it should impel the development of treatment methods that are more grounded in reality and therefore more likely to be effective than the current approaches that are not working.

It appears that these words, for the most part, have largely been ignored. In a recently published law review article, for example, my book is cited as an example of a “fathers’ rights” book that claims women lie about being victims in order to support the “domestic violence industry.” In reality, neither those words nor that claim is made anywhere at all in my book.

In the never-ending gender wars, it seems everyone must get classified as either “for” women or “against” them, and if you challenge any statistic or claim that ostensibly was created for the purpose of securing special advantages for women, then you are “against.” Well, in the immortal words of Joe Biden, that’s just a bunch of malarkey.

In the book, I explain why many of the things we have been told (that sporting events fuel violence against women; that 95% of all incidents involve men beating up women; that it’s the leading cause of death for women; and hundreds of other myths that people seldom question) are not true. I did not do this because I am against women. I did it because I am for truth.

The domestic abuse field has been plagued by misinformation for many years. It seems that a lot of people have believed that it is necessary to make wildly inflated claims about violence against women in order to get people to care about the issue. And apparently a lot of people, at the same time, have also believed that information about male victims must be suppressed.

From the standpoint of a person who honestly believes that people only care about fantastic outbreaks of large-scale epidemics but couldn’t care less about individual people, I suppose lying about the magnitude of the problem would be very tempting. The motivation for suppressing or concealing information about male victims, however, is a bit more difficult to explain.

Some advocates seem to view domestic violence as a zero-sum game. Any protection afforded to male victims is viewed as somehow “stealing” such protection away from women. Of course, this is not true. It is possible to provide legal protections for male victims without diminishing the legal protections that are available to women.

The most plausible explanation, I believe, is that many people in the domestic violence field have wed themselves, in one way or another, to a feminist theory of domestic violence. According to Gloria Steinem, domestic violence is the means by which men, as a class, maintain power and control over women, as a class. Predominant domestic violence treatment protocols are founded on this belief. To acknowledge male victims would be to acknowledge that the feminist theory of domestic violence is invalid. I think it is likely that the originators of false information and propaganda about domestic violence simply are not yet prepared to discard the feminist theory of violence as propounded by Gloria Steinem.

How false claims about domestic violence hurt women

One misgiving I have had about the book is that I did not explain as fully as I might have how false information about domestic violence actually does more to harm abused women than to help them. I did mention this, but the focus of the book was more on the fact that portraying violence as an exclusively male phenomenon prevents men and boys who are victims of domestic violence from being acknowledged, and therefore prevents them from getting the help they need.

Misinformation about domestic violence hurts women, too.

To begin with, since most couples violence is mutual, and is at least as often initiated by the woman as by the man (according to studies cited in the book), it stands to reason that women will be put at greater risk of retaliatory violence if there are no legal, social or moral inhibitions against women’s initiation of violence against men.

In addition, and just like the fable about the boy who cried wolf, repeatedly making false claims about domestic abuse victimization ultimately weakens the credibility of the movement.

Most importantly, though, adhering to a false theory about the nature and cause of domestic violence obstructs the development of treatment modalities that may actually be effective in addressing the problem. If domestic violence is simply viewed as the means by which men as a class maintain power over women — that is to say, simply the means by which “the patriarchy” sustains itself — then there will be very little chance of the real causes and correlates being discovered. As I expressed it in the book,

Those involved in the treatment of offenders need to honestly and openly acknowledge that not all batterers are alike; that “patriarchy” and “male privilege” usually have very little to do with it; and that things like low self-esteem, dependence, poverty, unemployment, lack of education, alcoholism, drug abuse, mental illness, stress, biological and neurological factors, cohabitation at an early age, parentage at an early age, parental rejection, abusive childhood, weak parent-child attachment, tolerance of corporal punishment (a.k.a. child abuse), marital dissatisfaction, and yes, sometimes even female violence, do in fact have a lot to do with male violence. Unless these issues are addressed honestly and objectively, the real causes of violence will never be treated.

(Citations omitted here for the sake of brevity.)

Another way that false propaganda embracing the Steinem model harms women is by perpetuating sexist stereotypes. The double standard that a man should not hit a woman but it does not matter if a woman hits is a man is founded, in large part, on a belief that men are – or should be – capable of taking care of themselves, and women are not. It reflects a belief that women need protection because they are weaker than men, but men should not need anything because they are stronger. Sexists have no problem telling an abused man to “man up” and “take it like a man,” but would never suggest to an abused woman that she “woman up” or “take it like a woman.” Female violence is minimized, or even laughed about, because women are regarded as ineffectual. Of course, this is not true. Some women do, in fact, have sufficient physical strength to inflict considerable damage on another person. Nor is women’s supposed deficit in physical strength particularly significant, given that any woman can make up for with a knife or a gun what she might lack in physical strength.

The double standard reflected in the propaganda reinforces a belief that a man should be strong enough to control a woman: If he is so weak as to “let” a woman or a girl beat him up, then he is not “a real man.”

It should not be necessary to explain that it is not really in women’s best interests to teach boys and men that their defining characteristic — what makes them “real” and therefore worthy of the title of “man” — is their capacity and willingness to use physical force to control women.

The double standard also reinforces a stereotype of all men as being stronger than all women. It is exactly this stereotype that has been responsible for the denial of equal opportunities to women in law enforcement, firefighting, and certain types of military service.


In the eleven years since the publication of my book, I am pleased to report that many service providers and workers in the field of domestic violence either have come to expressly acknowledge that male abuse victims exist, or have made at least some effort to start using gender-neutral language. A few, like the Mayo Clinic, have even developed information and resource listings explicitly for male victims analogous to the ones they have developed for female victims. It has also been reported that even though they legally may only be required to provide free screening of female children for child abuse, some health care providers screen all children for it regardless of sex. These are the kinds of positive changes I had hoped my book would help bring about. So far, none of these things appears to have diminished anyone’s level of concern for women.

The truth is really very simple: The pain of domestic abuse does not discriminate on the basis of sex. It is not something that anyone, male or female, should have to endure.

I have been informed that my book, Domestic Violence: The 12 Things You Aren’t Supposed to Know may be going out-of-print soon. Send an email to me at, using “BOOK” as the subject-header, for ordering information if you are unable to obtain a copy through regular channels.

Custody rights of gay and lesbian parents


I can bear [all else except that] … my two children are taken from me by legal procedure. That is, and always will remain to me a source of infinite distress, or infinite pain…. The disgrace of prison is as nothing compared with it.1

Nineteenth century poet and playwright Oscar Wilde wrote those words while serving time in prison for sodomy. Although judicial attitudes are changing, historically courts have not favored awards of custody to non-heterosexual individuals.2

Reasons for judicial hostility varied, but it is possible to identify five broad categories of explanations: (1) bad moral example; (2) risk of child sexual abuse (founded on a belief that non-heterosexuals are sociopathic sexual deviants); (3) deficient parenting (because unwilling to place child’s needs ahead of parent’s sexual needs); (4) gender identity confusion for the child; (5) social stigma causing emotional or psychological harm to child.

Moral unfitness

In colonial and nineteenth century America, non-procreative sex of any kind was considered immoral, and punished criminally. Virtually any kind of sexual activity other than sexual intercourse between a husband and wife for the purpose of procreation was classified as a crime against morals and decency. Thus, sodomy was broadly defined to include anal sex whether it was between a man and a woman, or between a man and a man. The idea, basically, was that sexual pleasure was inherently sinful; it was tolerated only for the limited purpose of producing offspring.

Sodomy and the “crime against nature”

Prohibitions against sodomy have taken different forms in different places over the years, but they all have their roots in religious teachings. In the United States, they derive from the Christian Bible.

Biblical prohibitions have been the subject of differing interpretations over the centuries. Eleventh century medieval Christian theologians employed it to refer to a wide range of non-procreative sexual practices. Later theologians sometimes used it interchangeably with, or confused it with, “unnatural acts,” although the latter phrase derives from Romans I, and is broader in scope than “sodomy.” For example, bestiality may or may not be included within a definition of sodomy, but it always comes within the definition of an “unnatural act.” On the other hand, even vaginal sexual intercourse between a married man and woman could be an “unnatural act” if performed in an unusual position, or with contraceptive intent.3

Theologians also were not in agreement about whether it was possible for a woman to commit sodomy. Many took the position that only a man could be guilty of sodomy. Some, however, contended that since the definition of sodomy was any non-procreative sexual activity, a woman, too, could be guilty of it.4

The English Parliament transformed the religious proscription into a secular one by creating the crime of “buggery,” which was made a capital offense in 1533. Buggery was defined as sexual intercourse between a human and an animal (bestiality), or anal intercourse between a man and a woman, or between a man and a man.5

Colonial American statutes carried forward the English prohibition, sometimes calling it sodomy, sometimes calling it buggery, and sometimes referencing “the crime against nature.”6

In colonial America, only the male participant in a non-procreative sex act could be punished criminally. Depending on the circumstances, lesbian sexual activity might have been punishable as “lewd and lascivious behavior,” but it was not punishable as sodomy, buggery, or a “crime against nature,” which were far more serious offenses, sometimes punishable by death. The only exception was New Haven, where “women lying with women” was prohibited by law for ten years. In all other colonies, the laws targeted only male non-procreative sexual gratification.7

Sodomy, buggery, and/or “the crime against nature” remained serious criminal offenses throughout the nineteenth century and the first half of the twentieth century. Many states added oral sex to the list of proscribed sexual activity during this time.

In the twentieth century, sexual regulation increasingly focused less on non-procreative heterosexual activity, and more on homosexual activity in particular. Numerous laws discriminating against non-heterosexual individuals were enacted at both the state and the federal level (e.g., exclusions from federal employment and military service; exclusions from employment as teachers; disqualification from adoptive parenting, etc.)

Consistent with this history, courts originally held, as a matter of law, that anything other than a heterosexual sexual orientation rendered a person unfit to parent, or at least raised a presumption of unfitness to parent.8 Although most courts no longer apply a per se rule that every non-heterosexual person is unfit to parent, a few courts continue to consider it evidence of “lack of moral example” and treat it as a negative factor in their best interest analyses on that basis.9

Impact of the sexual liberalization and no-fault movements

Aversion to homosexual practices survived the sexual liberalization and no-fault movements of the 1960’s and 1970’s, notwithstanding legislative efforts to eliminate moral judgments from the custody decision-making process. Evidence of this can be found not only in the reports of judicial decisions during this time, but also in the approach that states took to the liberalization of their sexual regulations. For example, during the last quarter of the century, when many states were either legalizing or decriminalizing sexual activity between consenting adults, prohibitions against non-heterosexual activity often were left intact. Moreover, some state legislatures even added new crimes specifically singling out same-sex activity for proscriptive regulation.

In the context of custody law, aversion to homosexual practices clearly was of a higher order than the aversion to what were considered immoral heterosexual practices (fornication and adultery, for example.) Sexual orientation continued to be a significant consideration in custody cases long after marital infidelity ceased to be.10 Instead of resting their decisions on moral grounds, though, most courts began explaining denials of custody to non-heterosexual persons in other ways.11

Other rationales for denying custody to gay, lesbian, and bisexual persons


Child sexual abuse

Until 1973, homosexuality was listed as a sexual disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual. Gay, lesbian, bisexual, and transgendered persons were believed to be suffering from a mental illness or defect that caused them to be sexual “deviants.”12 Especially during the first two-thirds of the twentieth century, it was widely believed that non-heterosexual individuals preferred children as sexual partners. People associated homosexuality with pedophilia.13 That was why non-heterosexuals generally were not permitted to be teachers, child-care workers, Boy Scout leaders, and so on.

Some judges, when refusing to award custody to a non-heterosexual parent, did not provide much explanation other than a conclusory assertion that such a placement would put a child at risk of harm. It is likely that a belief in a connection between homosexuality and pedophilia played a role in these decisions.


In 1981, the Centers for Disease Control published a Morbidity and Mortality Weekly Report about five otherwise healthy gay men who had been diagnosed with an infection that normally appears only in individuals with significant immune system damage. Soon, more cases like these were reported, principally in gay men. Eventually, the disease came to be known as acquired immune deficiency syndrome (AIDS). Although it also affected intravenous drug-users, blood transfusion recipients, and sometime s heterosexual women and men, gay men were the principal victims. The new association between homosexuality and terminal illness revitalized antipathy toward gay men. The wives and ex-wives of gay fathers argued that a parent with AIDS or HIV posed too great a health risk to be permitted to have custody or contact with children.

Most courts that have considered this argument have rejected it because AIDS and HIV can only be transmitted through the exchange of bodily fluids (blood or semen), not casual household contact.14

Psychological or emotional harm

Some courts have assumed that psychological harm is “inevitable,” or have established a presumption that an openly homosexual parent has an adverse psychological or emotional effect on children.15 The trend, however, is to require actual proof of harm rather than assuming it.


Perceiving sexual orientation as a choice, some courts have treated a parent’s unwillingness to renounce his sexual preference as evidence that the parent places his own interests ahead of those of his children. Of course, if the parent’s activities or relationships actually interfere with her parenting in some way – e.g., where a parent devotes more time and attention to her partner, and/or the gay community, than to her child — that, too, may be cited as a reason for denying her custody.16


Some courts have denied custody to non-heterosexual parents on the grounds that social prejudice against openly gay and lesbian couples may be psychologically or emotionally harmful to the children in their care.17 The fact that a child is subjected to ridicule or harassment by his peers due to the parent’s sexual orientation may suffice to establish the necessary nexus between the parent’s sexual orientation and a negative impact on the child’s emotional well-being. There have been cases where courts have denied custody based on a parent’s failure to dispel rumors about her sexual orientation, where the rumors have made the child feel bad.18

Other courts, consistent with the rationale of Palmore v. Sidoti,19 have declined to treat community hostility toward non-heterosexuals as a permissible basis for denying custody to a non-heterosexual parent.20


See the discussion of transgendered parents, infra.

Presumptions and burden of proof

Courts have approached the question of non-heterosexual parents’ rights in one of three ways:21 (1) a per se rule that anyone who is not heterosexual is unfit to parent, as a matter of law;22 (2) a rebuttable presumption that a child will be harmed in some way by placement in the custody of a non-heterosexual parent;23 (3) a “nexus” rule, under which harm is not presumed to flow merely from a parent’s sexual orientation itself, but that custody or visitation rights may be denied or restricted if it is shown that a parent’s sexual orientation has, or is likely to have, an actual adverse impact on the child.24

As societal acceptance of gay, lesbian, bisexual and transgendered persons has grown, there has been a general movement away from the per se rule.25 Today, most courts apply the “nexus” rule.26 In most states, the fact that a parent is gay, lesbian, bisexual or transgendered is not sufficient, by itself, to disqualify him or her from custody. The party seeking to disqualify a person on that basis must produce evidence to show that the person’s sexual orientation has or is likely to have an actual adverse impact on the child.

Evidence of adverse impact

It may be expected that in a state that applies the “nexus” rule, a closeted non-heterosexual parent (one who keeps his sexual orientation concealed, at least from the child) should be on roughly equal footing with a heterosexual parent.27 It is difficult to imagine how a person’s sexual orientation could have an impact on a child if she does not know about it. Outward expressions of affection toward a same-sex partner in a child’s presence, on the other hand, are often – though not always — deemed harmful to a child.28 Some judges apply a double standard in this respect, assuming damage to a child from witnessing a same-sex couple’s hugs, kisses or other displays of affection but not when a heterosexual couple engages in these behaviors in a child’s presence.

There are several other ways in which a nexus between a parent’s sexual orientation and a negative impact on the child has been proven. Evidence that it is a contributing cause to the child’s depression, anxiety or other psychological or emotional disorder may suffice.29 Involving a child in gay community activities,30 or giving higher priority to a same-sex relationship than to the child,31 may support a finding of a nexus to harm to the child. Courts are split as to whether witnessing a parent kissing or engaging in other displays of affection with a same-sex partner is harmful to children, but it generally is not difficult to convince a judge that being nude or engaging in sexual activities in a child’s presence has a harmful effect on the child. And of course, if a non-heterosexual parent actually engages a child in sexual activity, i.e., if the parent perpetrates child sex abuse, then a court normally will find that the child has been harmed by it, just as courts generally find children are harmed by heterosexual child abuse.

Transgendered persons32

There have not been very many reported cases addressing the custody rights of transgendered parents. This is probably because transgendered people historically have been thought to be mentally ill and dangerous to children.33 It was viewed as a basis not only for denying custody, but also for restricting visitation; to some courts, it was a reason to terminate parental rights altogether.34

Some courts continue to assume that any contact between a child and a transgendered parent is harmful to the child.35The modern trend, though, seems to be to apply the same rule that is applied in the case of gay and lesbian parents, so that a parent’s transgendered status operates as a bar to custody only if there is a nexus to some provable harm or danger to the child’s emotional well-being or development, or to an adverse affect on the parent-child relationship.36

In one highly publicized case, a Florida court approved a mediated agreement placing a child in the custody of Michael Kantaras, a female-to-male transsexual, largely because no showing of a nexus between the parent’s transsexuality and harm to the child had been made.37

While the trend seems to be toward greater acceptance of transgendered persons, courts can be expected to proceed with caution in this area. There is a concern that contact with a transgendered parent may negatively affect a child’s understanding of sexuality, or his or her own gender identity. Courts may view a child’s difficulty understanding his parent’s transsexuality as an emotional or psychological danger to the child.38

In Daly v. Daly39 the Nevada Supreme Court affirmed the termination of a male-to-female transsexual’s parental rights on the basis that he was an embarrassment to his daughter.

Of course, if the other parent is unfit, or if other “best interest” factors very strongly favor the transgendered parent, a court might assign less weight to the child’s discomfort or embarrassment, particularly if the other parent has fostered and encouraged the child’s discomfort.40

If a transgendered person can keep his or her gender identity issues and practices hidden from the child, then they should not be a bar to custody, at least not in a state where courts apply a “nexus” test.41 It is conceivable that a court may be persuaded to grant custody to a transsexual if the child has no difficulty dealing with it and if the parent’s transsexuality does not appear likely to create issues for the child in the future.42 The fact that a transgendered person does not act on his gender-identity proclivities in the presence of his children (i.e., remains closeted, and appears likely to remain closeted in the future when he is around his children) may be important to a court. A court may even regard it as an essential pre-condition to an award of custody, at least when the custody of the children of a male-to-female transgendered person is at issue.43

A growing number of jurisdictions have enacted laws intended to promote greater acceptance of transgendered persons. In 1994, San Francisco enacted an ordinance prohibiting discrimination against transgendered persons.44 Since then, several other jurisdictions have followed suit.45

Consistent with the rationale in Palmore v. Sidoti46 a court in a state where such laws have been enacted may be expected to require a greater showing of harm to preclude an award of custody to a transgendered parent than the harm stemming from the community’s, the court’s or the child’s own prejudices against transgendered persons alone.

Constitutional protections

Although sexual orientation is not yet treated as a suspect classification for purposes of Fourteenth Amendment analysis, this does not mean that states are free to discriminate against non-heterosexual persons. In Lawrence v. Texas,47 the U.S. Supreme Court invalidated state prohibitions against homosexual practices (specifically, Texas’s criminal sodomy law) on the basis that consensual sexual conduct is a liberty interest protected by Fourteenth Amendment substantive due process.

In Romer v. Evans48 the U.S. Supreme Court held that discrimination on the basis of sexual orientation is not permitted if it is not reasonably related to a legitimate state interest; and abhorrence of homosexuality, standing alone, does not qualify as a legitimate state interest. Of course, the state, in its role as parens patriae, has a legitimate interest in protecting children from harm. But a court’s denial of custody to a non-heterosexual person without requiring any proof of actual harm or danger to children cannot be said to be reasonably related to that interest. Accordingly, the per se rule appears to be constitutionally suspect.49

Of course, neither these Supreme Court precedents nor any legislative enactments preclude courts from taking sexual orientation into consideration in child custody cases if some nexus to a specific danger of harm to the child’s interests (such as emotional difficulties adjusting to the parent’s sexuality) is demonstrated. They do, however, cast serious doubt on the continuing validity of cases treating a parent’s sexual orientation as a reason, in itself, to deny the parent custody of children.

This is a sample chapter from my book, The History of Custody Law. The entire book is available in paperback or as a Kindle e-book at:

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  1. OSCAR WILDE, DE PROFUNDIS 34 (R. Ross ed., 1909)
  2. Elizabeth Trainor, Annotation, Initial Award or Denial of child Custody to Homosexual or Lesbian Parent, 62 A.L.R.5th 591, 601 (1998)
  5. William Eskridge, Jr., Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946, 82 IOWA L. REV. 1007, 1012 (1997); Ed Cohen, Legislating the Norm: From Sodomy to Gross Indecency, 88 S. ATLANTIC Q. 181, 185 (1989).
  6. Puritanical New England colonies enacted prohibitions that went far beyond those that Parliament had enacted. For example, in 1646 a New Haven man was hanged for engaging in masturbation. See John Murrin, “Things Fearful to Name”: Bestiality in Early America, in AMERICAN SEXUAL HISTORIES 17 (Elizabeth Reis ed., 2001); see also Robert F. Oaks, “Things Fearful to Name”: Sodomy and Buggery in Seventeenth-century New England, 12 J. SOC. HIST. 268 (1978); Jonathan Ned Katz, The Age of Sodomitical Sin, 1607-1740, in GAY/LESBIAN ALMANAC 23 (1983).
  7. Murrin, supra note 6 at 15; Katz, supra note 6 at 29-30.
  8. See, e.g., Ex Parte H.H., 830 So. 21 (Ala. 2002) (Moore, C.J., concurring) (arguing that gay and lesbian parents should be deemed presumptively unfit to have custody of children); Roe v. Roe, 324 S.E.2d 671 (Va. 1985) (failing to conceal the fact that one shares his bed with a same-sex partner amounts to “flaunting” one’s immorality, rendering one unfit to parent as a matter of law.) To these courts, proof of an adverse effect on the child is unnecessary, as it is believed to be inevitable that a parent’s involvement in homosexual activity will have an adverse effect on the child in every case.
  9. cf. Tucker v. Tucker, 910 P.2d 1209 (Utah 1996) (describing it as immoral because it involves cohabitation with a person other than one’s spouse while still married)
  10. See, e.g., Pascarella v. Pascarella, 512 A.2d 715 (Pa. Super. Ct. 1986)
  11. But cf. M.J.P. v. J.G.P., 640 P.2d 966, 969 (Okla. 1982) (holding that an award of custody to a lesbian parent was contrary to the child’s best interests because it would result in the child believing there is nothing morally wrong with lesbianism.)
  12. See George Chauncey, From Sexual Inversion to Homosexuality: Medicine and the Changing Conceptualization of Female Deviance, SALMAGUNDI 114 (1982-1983); Siobhan Somerville, Scientific Racism and the Invention of the Homosexual Body, in QUEER STUDIES 241 (Beemyn & Eliason eds., 1996); JENNIFER TERRY, AN AMERICAN OBSESSION: SCIENCE, MEDICINE, AND HOMOSEXUALITY IN MODERN SOCIETY (1999).
  13. A 1970 national survey found that 70% of Americans believed that non-heterosexuals are dangerous “because they try to get sexually involved with children” or will “try to play sexually with children if they cannot get an adult partner.” A.D. KLASSEN, C.J. WILLIAMS & E.E. LEVITT, SEX AND MORALITY IN THE U.S.: AN EMPIRICAL ENQUIRY UNDER THE AUSPICES OF THE KINSEY INSTITUTE (1989). As the recent debate over the Boy Scouts’ policy of excluding gay men from leadership positions demonstrates, this belief has endured beyond the first half of the twentieth century. See also ANITA BRYANT, THE ANITA BRYANT STORY: THE SURVIVAL OF OUR NATION’S FAMILIES AND THE THREAT OF MILITANT HOMOSEXUALITY 114 (1977) (warning that a “deviant-minded |gay| teacher could sexually molest children”); Timothy J. Daley, Family Research Council, Homosexuality and Child Sexual Abuse (2002), retrieved from on April 16, 2014 (asserting the existence of a “disturbing connection” between “the gay lifestyle” and pedophilia.)
  14. Steven L. v. Dawn L., 561 N.Y.S.2d 322 (Fam. Ct. 1990); Doe v. Roe, 526 N.Y.S.2d 718 (Sup. Ct. 1988); Conkel v. Conkel, 509 N.E.2d 983 (Ohio Ct. App. 1987); cf. FLA. STAT. § 61.13 (2011) (prohibiting courts from denying a party custody solely because of HIV infection.) Of course, it may be still be relevant if the disease impairs a party’s physical health in a way that interferes with his ability to care for children. H.J.B. v. P.W., 628 So. 2d 753 (Ala. Civ. App. 1993).
  15. See, e.g., Pascarella v. Pascarella, 512 A.2d 715 (Pa. Super. Ct. 1986) (finding it “inconceivable” that a child could be exposed to a parent’s same-sex relationship and not suffer emotional disturbance); Bottoms v. Bottoms, 457 S.E.2d 102 (Va. 1995) (declaring that harm to child is inevitable)
  16. See Bark v. Bark, 479 So. 2d 42 (Ala. Civ. App. 1985); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980)
  17. See, e.g., S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. Ct. App. 1987); Jacobson v. Jacobson, 314 N.W.2d 78 (N.D. 1981) (denying custody to mother cohabiting with her lesbian lover, on the basis that the child could suffer the “slings and arrows” of a disapproving society.)
  18. See, e.g., Bowen v. Bowen, 688 So. 2d 1378 (Miss. 1997)
  19. 466 U.S. 429 (1984). In that case, the United States Supreme Court ruled that a judicial desire to protect a child from a community’s race-based hostility and prejudice cannot be made the basis for a custody decision.
  20. See, e.g., S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985); Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Dist. Ct. App. 2000) (holding that the perceived bias of the community against non-heterosexuals is not a proper basis for a finding of negative impact; also, the mere possibility that conflict between religious teachings and a parent’s sexual preferences may confuse a child is not sufficient unless there is evidence of actual harm to the child); Inscoe v. Inscoe, 700 N.E.2d 70 (Ohio Ct. App. 1997).
  21. See Felicia Meyers, Note, Gay Custody and Adoption: An Unequal Application of the Law, 14 WHITTIER L. REV. 839, 840-43 (1993)
  22. Id. at 840; see, e.g., Jacobson v. Jacobson, 314 N.W.2d 78, 82 (N.D. 1981) (denying a lesbian mother custody of her child despite the trial court’s finding that both parents were fit.) A court applying the per se rule may also restrict the noncustodial parent’s visitation rights for the same reason. Joseph R. Price, Comment, Bottoms III: Visitation Restrictions and Sexual Orientation, 5 WM. & MARY BILL RTS. J. 643, 649-50 (1997)
  23. See, e.g., S.E.G. v. R.A.G., 735 S.W.2d 164, 166 (Mo. Ct. App. 1987) (presuming harm from peer teasing and social ostracism likely to occur); see generally Katja M. Eichinger-Swainston, Note, Fox v. Fox: Redefining the Best Interest of the Child Standard for Lesbian Mothers and Their Families, 32 TULSA L.J. 57, 58 (1996)
  24. See, e.g., Mardie v. Mardie, 680 So. 2d 538, 540 (Fla. Dist. Ct. App. 1996); Bezio v. Patenaude, 410 N.E.2d 1207, 1216 (Mass. 1980); Eichinger-Swainston, supra note 23 at 59; Trainor, supra note 2 at 601 (1998)
  25. Heidi C. Doerhoff, Note, Assessing the Best Interests of the Child: Missouri Declares that a Homosexual Parent is Not Ipso Facto Unfit for Custody J.A.D. v. F.J.D., 64 MO. L. REV. 949 (1999)
  26. See, e.g., OR. REV. STAT. § 107.137 (2011) (authorizing courts to consider marital status, social environment and lifestyle only if shown to be emotionally or physically damaging to the child); Ex parte J.M.F., 730 So. 2d 1190 (Ala. 1998); Packard v. Packard, 697 So. 2d 1292 (Fla. Dist. Ct. App. 1997); Pryor v. Pryor, 709 N.E.2d 374 (Ind. Ct. App. 1999) (holding that sexual orientation, standing alone, is not a sufficient basis for denying custody); In re Marriage of Teepe, 271 N.W.2d 740 (Iowa 1978); Paul C. v. Tracy C., 622 N.Y.S.2d 159 (App. Div. 1994); Di Stefano v. Di Stefano, 380 N.Y.S.2d 394 (App. Div. 1976); Mohrman v. Mohrman, 565 N.E.2d 1283 (Ohio Ct. App. 1989); Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. Ct. 1985); Massey-Holt v. Holt, 255 S.W.3d 603 (Tenn. Ct. App. 2007); In re Marriage of Cabalquinto, 669 P.2d 886 (Wash. 1983), appeal after remand, 718 P.2d 7 (Wash. Ct. App. 1986); ); M.S.P. v. P.E.P. 358 S.E.2d 442 (W. Va. 1987); cf. Feldman v. Feldman, 358 N.Y.S.2d 507 (App. Div. 1974) (holding that sexual deviation and aberrant sexual practices do not necessarily make a parent unfit to have the custody of children.)
  27. See Hodson v. Moore, 464 N.W.2d 699 (Iowa Ct. App. 1990) (holding that custody will be awarded to a lesbian mother if she is discreet and does not engage in any inappropriate behavior in the presence of the children)
  28. See, e.g., Lundin v. Lundin, 563 So. 2d 1273 (La. Ct. App. 1990); see generally N. Maxwell & R. Donner, The Psychological Consequences of Judicially Imposed Closets in Child Custody and Visitation Disputes Involving Gay or Lesbian Parents, 13 WM & MARY J. WOMEN & L. 305, 307 (2006); but cf. Teegarden v. Teegarden, 642 N.E.2d (Ind. Ct. App. 1994) (declining to presume that lesbian displays of affection have an adverse impact on children.)
  29. See, e.g., Knotts v. Knotts, 693 N.E.2d 962 (Ind. Ct. App. 1998); In re Marriage of Wiarda, 505 N.W.2d 506 (Iowa Ct. App. 1993)
  30. J.B.F. v. J.M.F., 730 So. 2d 1190, 1195-96 (Ala. 1998); Hertzler v. Hertzler, 908 P.2d 946, 951 (Wyo. 1995) (restricting mother’s visitation rights because she involved the children in a same-sex commitment ceremony and took them to a gay and lesbian rights parade); but cf. Pleasant v. Pleasant, 628 N.E.2d 633, 636-42 (Ill. App. Ct. 1993) (holding that it is error to restrict a mother’s visitation rights for taking her son to a gay pride parade, where there was no evidence that he had been harmed by the parade)
  31. See Charpentier v. Charpentier, 536 A.2d 948, 950 (Conn. 1988) (affirming custody award to father, where the evidence showed that the children felt neglected by their mother because of her new same-sex relationship); Hall v. Hall, 291 N.W.2d 143, 144 (Mich. Ct. App. 1980) (affirming custody award to the father on the basis of a belief that the mother would choose her lesbian relationship over her children).
  32. Transgendered people are “individuals whose gendered self-presentation (evidenced through dress, mannerisms, and even physiology) does not correspond to the behaviors habitually associated with the members of their biological sex.” VIVIANE K. NAMASTE, INVISIBLE LIVES: THE ERASURE OF TRANSSEXUAL AND TRANSGENDERED PEOPLE 1 (2000). As used herein, the term includes cross-dressers as well as pre-op and post-op transsexuals.
  33. The DSM-IV included “gender identity disorder” as a mental disorder. AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, DMS-IV-TR (4th ed. 2000). The most recent edition uses the phrase, “gender dysphoria.” Research does not support the notion that transgendered parents are inherently dangerous to children, however. See R. Green, Sexual Identity of 37 Children Raised by Transsexual or Homosexual Parents, 135 AM. J. OF PSYCHIATRY 692 (June 1978) (“Children being raised by transsexual or homosexual parents do not differ appreciably from children raised in more conventional family settings.”)
  34. See, e.g., Daly v. Daly, 715 P.2d 56 (Nev. 1986); Cisek v. Cisek, No. 80 C.A. 113, 1982 Ohio Ct. App. LEXIS 13335 at *3 (Ohio Ct. App. July 20, 1982); cf. In Re Darnell, 619 P.2d 1349 (Or. Ct. App. 1980) (terminating a mother’s parental rights on the basis of her refusal to discontinue relationship with a transsexual); see generally Phyllis Randolph Frye, Facing Discrimination, Organizing for Freedom: The Transgender Community, in CREATING CHANGE: SEXUALITY, PUBLIC POLICY, AND CIVIL RIGHTS 451, 454 (John D’Emilio et al. eds., 2000).
  35. See, e.g., J.L.S. v. D.D.S., 943 S.W.2d 766, 775 (Mo. Ct. App. 1997) (reversing an order that had awarded visitation rights to a transgender parent, on the grounds that there was not an adequate showing that such contact was in the child’s best interest.)
  36. See Julie Shapiro, Custody and Conduct: How the Law Fails Lesbian and Gay Parents and Their Children, 71 IND. L.J. 623, 633 (1996). A majority of courts today follow the “nexus” test rather than the per-se rule. Id. at 635; see, e.g., Christian v. Randall, 516 P.2d 132 (Colo. Ct. App. 1973).
  37. Judge Gives Transsexual Father Custody of Children in Florida, N.Y. TIMES, February 22, 2003. Courts generally seem to find a potential for harm to children more readily when the case involves a male-to-female transgendered person than when it involves a female-to-male transgendered person. Compare Christian v. Randall, 516 P.2d 132 (Colo. Ct. App. 1973) (granting custody of a child to female-to-male transsexual) with Daly v. Daly, 715 P.2d 56 (Nev. 1986) (terminating parental rights altogether on the basis of the parent’s male-to-female transsexuality) and Cisek v. Cisek, No. 80 C.A. 113, 1982 Ohio Ct. App. LEXIS 13335 (Ohio Ct. App. July 20, 1982) (terminating all visitation with the father after his sex-change operation, on the grounds that a child would have difficulty adjusting to the change.)
  38. See Cisek v. Cisek, No. 80 C.A. 113, 1982 Ohio Ct. App. LEXIS 13335 (Ohio Ct. App. July 20, 1982); Kari J. Carter, Note, The Best Interest Test and Child Custody: Why Transgender Should Not Be a Factor in Custody Determinations, 16 HEALTH MATRIX 209, 221 (2006); David Freedman et al., Children and Adolescents with Transsexual Parents Referred to a Specialist Gender Identity. Children and Adolescents with Transsexual Parents Referred to a Specialist Gender Identity Development Service: A Brief Report of Key Developmental Features, 7 CLINICAL CHILD PSYCHOL. & PSYCHIATRY423, 424 (2002) 
  39. 715 P.2d 56 (Nev. 1986). The court cited the father’s sexual reassignment surgery as evidence that he was a “selfish person whose own needs, desires and wishes were paramount and were indulged without regard to their impact on |his| daughter, Mary.” Id. at 59.
  40. See, e.g., In re V.H., 412 N.W.2d 389 (Minn. Ct. App. 1987)
  41. Id.; see also P.L.W. v V.T.R.W., 890 S.W.2d 688 (Mo. Ct. App. 1994); D.F.D. v. D.G.D., 862 P.2d 368, 376-77 (Mont. 1993)
  42. See In re T.J., No. C2-87-1786, 1988 WL 8302 at *3-4 (Minn. Ct. App. Feb. 9, 1988) (awarding custody to a male-to-female transsexual)
  43. Id.; see also In re V.H., 412 N.W.2d 389, 393 (Minn. Ct. App. 1987).
  44. San Francisco, Cal., Ordinance 433-94 (December 30, 1994); see also SANTA CRUZ, CAL., MUNICIPAL CODE §9.83.010 to .120 (1992)
  45. See, e.g., CAL. CIV. CODE § 51 (2011); MINN. STAT. §§ 363A.03, .12 (2012); N.M. STAT. § 28-1-2(Q) (2011); R.I. GEN. LAWS §§ 11-24-2, -24-2.3 (2011) (hotels and public places); see also MO. REV. STAT. § 557.035 (2011) (hate crimes.) It should be noted that few, if any, of these laws explicitly apply to child custody determinations, but they do reflect a growing cultural trend toward acceptance of transgendered persons.
  46. 466 U.S. 429 (1984).
  47. 539 U.S. 558 (2003).
  48. 517 U.S. 620, 634 (1996)
  49. See, e.g., Moses v. King, 637 S.E.2d 97, 98 (Ga. Ct. App. 2006) (holding that a mother’s cohabitation with her lesbian partner is not a proper basis for depriving her of custody, in the absence of proof that the child was harmed or exposed to inappropriate conduct); McGriff v. McGriff, 99 P.3d 111 (Idaho 2004) (citing Lawrence v. Texas in support of the proposition that sexual orientation, standing by itself, does not disqualify a parent from having custody of children); A.O.V. v. J.R.V., Nos. 0219-06-4, 0220-06-4, 2007 WL 581871 at *11 (Va. Ct. App. Feb. 27, 2007) (same); see also Trainor, supra note 2 (Supp. 2011) at 601 and cases cited therein (refusing to presume harm from the mere possibility of confusion about sexuality.)

Improving Statutory ‘Best Interest’ Factors


With broad, fundamental changes to custody law under serious consideration in North Dakota and other states, looking at ways to improve existing “best interest” statutes may seem a bit mundane. The broad, sweeping changes that are being enacted, however, typically leave existing statutory lists of “best interest” factors intact. The North Dakota shared parenting ballot measure, for example, would only establish a presumption that equal shared parenting is in a child’s best interest. Presumptions are rebuttable. Since the proposed amendment leaves the existing list of “best interest” factors intact, a court applying this statute, as amended, would naturally conclude that equality must be ordered unless the “best interest” factors support a different kind of arrangement (such as sole custody.) Accordingly, even if the North Dakota amendments pass, the “best interest” factors will continue to play a significant role in custody decisions.1

The next few blog posts will look at the kinds of improvements that might be made to existing lists of “best interest” factors.

Disposition to permit frequent and continuing contact with the other parent

The parties’ relative dispositions to encourage and permit frequent and continuing contact by the other parent with the child is the most recent addition to many states’ lists of “best interest” factors.2 This factor is not often determinative, by itself, of a custody issue. Nevertheless, taken in conjunction with other factors, it might tip the scale in favor of the innocent parent if the other parent is engaging in alienating behavior or interfering with another person’s parenting time. It also provides at least some disincentive to try to “hog” parenting time for oneself in order to establish oneself as the child’s primary caregiver and so on.

Proposed lifestyle changes

One criticism of “best interest” factors is that they focus entirely on past behaviors and present circumstances, locking people into caregiving patterns that may not necessarily be in children’s best interests in the future.

Responding to this concern, the state of Wisconsin has added the following factor to its “best interests” list:

The amount and quality of time that each parent has spent with the child in the past,
any necessary changes to the parents’ custodial roles and any reasonable life-style
changes that a parent proposes to make to be able to spend time with the child in the

The wording of this factor reflects two major departures from the “primary caregiver” standard. Courts historically have interpreted the “primary caregiver” factor as requiring them to conduct a quantitative analysis of the amount of time each parent has spent performing caregiving functions. By inserting the words “and quality” the legislature is directing courts to consider not only the quantity of time a parent has spent caring for a child, but also the quality of the time spent.

Even more significant than this is the addition of the second clause: “any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.” The addition of this new language about the future acknowledges that caregiving patterns are not static, and that people are adaptable to change.

About this new language, commentator Thomas J. Walsh has observed:

It offers a parent, who entered into an agreement with his or her spouse to be the bread winner in the family, the opportunity to reassess that role in light of the divorce. That parent would have the opportunity to change that role of bread-winner-only to the role of bread winner and caretaker. When two people, contemplating an indefinite marital union, enter into an agreement to structure their lives in a certain way in order to maximize efficiency, it is not fair to penalize one parent because he or she failed to consider the effect of that decision if the parties divorced.4

Of course, an argument can be made that custody decisions should focus on what is best for children, not on fairness to parents. Allowing a court to consider what changes a parent may be able to make going forward doesn’t just promote fairness to parents, though. It also promotes the best interests of children. Willingness to change, and adaptability to change, are both key to good parenting.

The problem with a factor that is worded in this way is that it requires a court to speculate about the future. Since anyone can promise anything they want about how they plan to change in the future, it would seem fairly easy for this factor to be misused. Consequently, it might be prudent for a legislature that is considering adding this factor to its list to also add a factor dealing with a parent’s ability and willingness to carry through with proposed lifestyle changes. Alternatively, a party’s failure to carry through with proposed changes that formed the basis, or a partial basis, for a previous custody order might be made grounds for modification of the custody order.

To be continued…

These are just a couple of the changes that could be made to improve statutory lists of “best interest” factors. Future blog posts will explore other possibilities.

My book, The History of Custody Law, is available in paperback and as a Kindle e-book:

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  1. The text of the proposed amendment may be viewed online at
  2. See, e.g., 1994 Minn. Laws ch. 630 (codified as amended at MINN. STAT. § 518.17, subd. 1(a)(13) (2012))
  3. WIS. STAT. § 767.41(5)(am)(4) (2011)
  4. Thomas J. Walsh, In the Interest of a Child: A Comparative Look at the Treatment of Children Under Wisconsin and Minnesota Custody Statutes, 85 MARQ. L. REV. 929, 970-71 (2002)

Shared Parenting Ballot Measure No. 6: What is going on in North Dakota?

North Dakota voters will have an opportunity this year to vote on an initiative that would give both mothers and fathers equal rights in custody cases, and make equal time the default position. Current North Dakota law is silent about whether sole or joint custody is in children’s best interests, or how much time each parent should be allowed with his or her children. Instead, judges are simply instructed to consider a variety of “best interest” factors.1 2014 ballot measure 6 would sharply limit judicial discretion when making custody decisions. It would require courts to award each parent equal rights and responsibilities unless a good reason for doing something different exists.

The text of the ballot measure is as follows:

This initiated measure would amend section 14-09-06.2 of the North Dakota Century Code to create a presumption that each parent is a fit parent and entitled to be awarded equal parental rights and responsibilities by a court unless there is clear and convincing evidence to the contrary; the measure would also provide a definition of equal parenting time.

The initiative measure has the support of a number of organizations. These include Lawyers for Shared Parenting; Leading Women For Shared Parenting; the North Dakota Libertarian Party; American Coalition of Fathers and Children; Divorce Corp.; and several others. Actors Kiefer Sutherland and Jason Patric, as well as several prominent attorneys, have also voiced their support.

Arguments for Ballot Measure No. 6

Jill Bjerke, chairperson of the initiative’s sponsoring committee, has advanced the following arguments in support:

  • Sole custody generally is not in children’s best interests;2
  • Equality of parental rights is more consistent with the U.S. Constitution than the current system is;
  • Making equal shared parenting the default position will make custody proceedings less adversarial;
  • An equality presumption will reduce custody litigation and lighten the burden of overworked courts.

Ms. Bjerke has also suggested that the initiative will give children the benefit of being raised by both parents, rather than by their mothers alone, which is currently the norm.

Arguments against Ballot Measure No. 6

Arguments that have been advanced in opposition to the measure include:

  • Families shouldn’t have a “one size fits all” solution imposed on them; instead, judges need discretion to decide what is best for them;
  • Measure 6 is said to focus more on parental rights than on children’s interests;
  • The current system is working fine;
  • Sharing custody is a bad idea in high-conflict cases;
  • It will increase litigation;
  • It fails to give stay-at-home mothers any special recognition;
  • Equal custody time will greatly reduce the amount of child support that mothers receive from fathers.

Who is opposing Ballot Measure No. 6?

Organizations working to defeat Ballot Measure No. 6 include the North Dakota Women’s Network; the American Association of University Women; the North Dakota Council on Abused Women’s Services; Prevent Child Abuse North Dakota; the American Civil Liberties Union; and the North Dakota Bar Association.

In some ways, it makes sense that women’s special interest groups would oppose this initiative. As discussed in my blog, The History of Custody Law, and in my book of the same name, American custody jurisprudence has long recognized a preference for mothers. When the law was gender-neutralized in the late twentieth century, the rule that mothers should always be awarded sole custody of children unless proven to be completely unfit to parent gave way to a facially-neutral list of factors that courts are to consider when deciding custody. The factors are usually so vaguely worded that it is very easy work for a judge to interpret and apply them in a way that will continue to favor the mother in every case, if he or she is so inclined. In short, the “best interest” standard arguably hasn’t eliminated the maternal preference; it has just driven it underground. Assuming social and cultural norms still favor maternal care over paternal care, women’s interests obviously are better served by a vaguely worded set of “best interest” factors than by one that demotes mothers to a position of equality with fathers in custody cases.

It is not quite as easy to understand why abuse prevention organizations are opposed to it. The measure does not require placement of children in the custody of an abusive parent. It would not create a conclusive presumption of shared custody. To the contrary, equality would just be the starting point. If there is evidence of abuse, then a court would still have the power to award sole custody to the non-abusive parent.

It is considerably more difficult to understand why the American Civil Liberties Union and the North Dakota State Bar Association are opposed to the measure.

The American Civil Liberties Union (ACLU)

The ACLU’s mission, as trumpeted on its web page, is this: “The ACLU is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.”3

The rights mentioned are: First Amendment (speech, press, religion, association, assembly); Equal Protection (the right to be free from unlawful discrimination); Due Process (the right to be treated fairly by the government when it tries to take something away from you); and Privacy (freedom from unwarranted government intrusion into your personal and private affairs.) The site says it “also works to extend rights to segments of our population that have traditionally been denied their rights….”4

The long history of courts and legislatures denying custody and other parental rights to fathers in this country, as reflected in the maternal preference and tender years doctrines, and in pre-Stanley v. Illinois legislation and judicial decisions categorically denying parental rights to unwed fathers, would lead one to expect the ACLU would be on the side of fathers in this instance. One also would expect that the organization’s supposed commitment to the Equal Protection clause’s guarantee of equality would impel it to support a ballot measure that calls for equal parental rights and responsibilities. Finally, since the Supreme Court has recognized parental rights to be part of the “liberty” protected by the Due Process clause, one would think that supporting parental rights – those of both men and women – would be an ACLU priority.

Here, the ACLU seems to be working for goals diametrically opposed to those set forth in their mission statement. Here they are working to preserve judicial discretion to deprive a parent of “liberty” rights protected by the Due Process clause. They are working to preserve a system that enables courts to practice discrimination and get away with it. By working to preserve judicial discretion to inquire into every minute detail of parents’ lives in order to determine which one is “best” for a child, they are working to promote government intrusion into people’s personal and private affairs. And last but not least, they are working to block the extension of rights to segments of the population that have traditionally been denied their rights.

It appears the ACLU has once again lost its focus, this time in a very big way.

The North Dakota State Bar Association

The North Dakota State Bar Association’s activities in opposition to the measure are also problematic.

In Keller v. State Bar California,5 the United States Supreme Court ruled that a state bar association’s use of compulsory dues to finance political or ideological activities with which a member might disagree violates the member’s First Amendment right of free speech if the expenditure is not reasonably and necessarily incurred for the purpose of regulating the legal profession. How is the North Dakota Bar Association’s opposition to a shared parenting initiative related to regulating the legal profession?

The U.S. Supreme Court acknowledged, in Keller, that “where the line falls between permissible and impermissible dues-financed activities will not always be easy to discern” but suggested that “the extreme ends of the spectrum are clear: Compulsory dues may not be used to endorse or advance [or, a fortiori, oppose an] initiative, but may be spent on activities connected with disciplining Bar members or proposing the profession’s ethical codes.”6

Opposing a change to a state’s substantive child custody laws is not, by any stretch of the imagination, an activity connected with disciplining Bar members or proposing the profession’s ethical codes.

Here, an outfit calling itself “Keeping Kids First” was established to oppose Ballot Measure No. 6. The specifics of the relationship between this outfit and the North Dakota Bar Association are not yet completely clear. It does appear likely, however, that bar association funds, possibly including member dues, were donated and used in connection with its establishment and/or operation.

The North Dakota Bar Association has responded by claiming the ballot measure is a social policy measure, not a political activity. First Amendment rights are not restricted to political speech, though. Views about social policy are also protected. Moreover, the Keller court specifically cited social policy initiatives as examples of speech falling at the “prohibited use of funds” end of the spectrum. Indeed, it described advocacy in connection with a ballot measure relating to social policy as being at the “extreme end,” the “prohibited use” end of the spectrum.

Had the Bar Association simply published the views of its members in a Bar publication, it probably would have been operating well within its rights. According to Leading Women For Shared Parenting, though, the Association went beyond that, actually donating some $60,000 of Association money to the outfit to actively campaign against Ballot Measure No. 6. If this is true, then it would seem that a pretty strong case can be made that the Association violated the First Amendment rights of those of its members who support the measure.


Why have the ACLU and the North Dakota Bar Association chosen to involve themselves in this issue, even to the extent of risking legal liability for violating constitutional rights? One possible explanation is that bar association members, or at least members of the family law section of the bar association, make a lot of money on custody litigation, so they naturally would like to preserve the status quo. The bar association, however, claims the new law would intensify litigation, not reduce it. On the other hand, a bar association’s crystal ball is no better than anyone else’s. And it might be that some members do fear diminished demand for their services if the measure is passed, despite what their leadership says.

This can’t be the whole explanation, though. For many years, the family law sections of state bar associations have been actively campaigning against other kinds of family law reforms, too. Proposals to make child support guidelines and alimony fairer to noncustodial parents and men typically draw fierce opposition from the family law sections of bar associations. And job security or greed would not explain the ACLU’s decision to become involved in a campaign whose purpose seems to be more about diminishing civil liberties and equal rights than protecting and advancing them.

Something else – or something additional — must be going on. I will not speculate about what that may be. This would be a good question to ask of your state’s chapter of the ACLU, and the family law section of your state’s bar association.

My book, The History of Custody Law, is available in paperback and as a Kindle e-book:

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  1. N.D. CENT. CODE § 19-09-06.2 (2014).
  2. She cites the Research Consensus Statement on Co-Parenting After Divorce, Conclusions of the First International Conference on Shared Parenting, as reported in Psychology Today.
  3. retrieved from on October 16, 2014.
  4. Id.
  5. 496 U.S. 1 (1990)
  6. Id.

“Commitment to marriage” as a new “best interests” factor

(Photo: Kattygalvez, public domain)

(Photo: Kattygalvez, public domain)

Covenant marriage laws, like proposals to reinstate fault-based divorce, are addressed to the grounds for divorce. It is unclear how, if at all, they would affect the outcome of custody cases. Whether a legislature decides to enact either kind of proposal or not, it may nevertheless want to consider adding a new consideration to the state’s list of “best interests” factors. The new factor might be something like: “responsibility, dedication to family, and except when it has been breached, respect for the marriage commitment.” Including a factor such as this in the basic custody statute might help remove some of the incentive for couples to divorce without good reason when there are children involved. It would also recognize the fact that in many cases it is not in children’s best interests to experience the divorce of their parents, and that a parent who pursues a divorce for the wrong reasons is not acting the best interests of the children.1

There may be cases in which a divorce is in a child’s best interests, such as where a parent is abusing the child. Proposals to add “respect for marriage” to the list of “best interest” factors will need to address this. One possible solution would be to make the factor subject to an exception for cases involving domestic violence or child abuse.

Out-of-wedlock births

Of course, it must be borne in mind that these ideas (covenant marriage, fault-based divorce, adding “respect for marital commitment”) would apply only to custody issues that arise between married parents. They would have no effect on the determination of custody in cases involving contests between a parent and a non-parent; between a parent and the state; or between/among non-parents. They would also have no effect on the determination of custody in cases involving children born out of wedlock. This is significant, inasmuch as the marriage rate is declining, and the rate of out-of-wedlock births is increasing.2 Currently, about 40.7 percent of births in America are out-of-wedlock.3 Accordingly, efforts to reform custody laws that focus solely on reforming marriage and divorce laws will necessarily be incomplete.

My book, The History of Custody Law, is available in paperback and as a Kindle e-book:

Purchase at

  1. Steven L. Varnis, Broken vows, therapeutic sentiments, legal sanctions. (divorce), 35 SOC’Y 32, 37 (1997)
  2. Julissa Cruz, Marriage: More Than a Century of Change(FP-13-13), National Center for Family & Marriage Research, Bowling Green State University, retrieved on October 4, 2014 from
  3. Hamilton, B.E., Martin, J.A., Ventura, S.J., Births: Preliminary data for 2012, National vital statistics reports, vol 62, no. 3, Hyattsville, MD: National Center for Health Statistics (2013)