Legal Guide

When an action involving divorce or separation is filed, the Courts acquire jurisdiction over the minor children born of the marriage and thus may decide issues of custody, visitation and support. The welfare of the child is the paramount consideration in custody and visitation matters. The Court is required to consider only what is in the best interest of the child.

Even without filing a divorce action, a parent may file a custody action when the parents separate. In addition, third parties (usually grandparents) may petition the Court for custody of a child. Between the mother and father, whether natural or adoptive, the law requires there be no presumption as to who will better promote the welfare of the child. But historically, children (and especially young children) have been awarded to the mother.

Only the natural or adoptive parents of a child have the legal right to be given custody of the child unless clear and cogent reasons exist for denying them this right. The law presumes that the best interest of a child will be served by committing it to the custody of a parent if the parent is a suitable person. This presumption is not overcome merely by showing that some third person can give the child better care and greater comfort and protection than the parent. However, a Court does not have to actually find a parent unfit for custody as a prerequisite to awarding custody to a third person.

In Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), the North Carolina Supreme Court held that the homosexual parent is entitled to the same consideration as the heterosexual parent in decisions on custody and visitation. Thus, a parent's homosexuality by itself should not be an issue unless it can be demonstrated that the child will be adversely affected if left in the custody or care of the homosexual parent. However, Pulliam demonstrates how courts sometimes find relatively innocuous activity to be detrimental to the child. In that case the supreme court seized on the fact that the homosexual parent was not married to his life partner in deciding to remove the child from the home. The court also noted that there were pictures of drag queens in the house and found these to be "admittedly improper sexual material in the home."

Even in situations where the judge is not homophobic and does not automatically feel that the homosexual home is unfit for children, the tendency is to place the child in a heterosexual home if all other factors are equal.

In deciding whether to award custody to a gay or lesbian parent, courts look at such factors as whether the parent is openly gay or lesbian, whether the parent has one or more lovers, whether the lover or lovers interact with the children and whether the children know of the parent's homosexuality. Many lawyers have interpreted the Pulliam decision to mean that a homosexual parent can get custody in North Carolina only if his or her lover (or sexual partners) live away from the home where the children reside.

Child custody decisions are never final and are reversible upon any showing of a material change in circumstances. Thus, if one parent is homosexual and wins custody while that fact is not known to the former spouse and the Court, and subsequently, it becomes known, it may be grounds for the other party to reopen the case based upon a material change in the circumstances.

Where custody is denied or not desired, the lesbian or gay parent is still entitled to visitation rights, unless the Court finds that visitation would be detrimental to the child. Courts have been known to restrict visitation, forbidding the parent from seeing the child with other homosexual persons present.

Other North Carolina appellate cases dealing with homosexuality and child custody include Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973); Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849 (1979); and Woodruff v. Woodruff, 44 N.C. App. 350, 260 S.E.2d 775 (1979).