This Article analyzes how courts making child custody determinations consider the sexual orientation of competing parents. It examines the crucial and troubling tension between a strong cultural belief in what I call mimetic reproduction and a reform designed to achieve equality orientation- blind custody decisions. Mimetic reproduction is the deeply embedded belief that children become like their parents through modeling and imitation. Courts rely on mimetic reproduction to make predictions about a parent's possible influence on the child. Today, orientation-blind custody decisions are often reached using a nexus test that prevents courts from considering orientation unless it proves harmful to a child. Because sexual orientation can only be taken into account when it is harmful, lesbian and gay (LG) parents are constrained from using mimetic reproduction arguments to advance their custody cases. LG parents must simultaneously convey that they are good parents and that they will not model homosexuality for their children. They must also demonstrate that they do not pose a risk of harm to the children. If LG parents and their advocates feel compelled by courts to continue arguing that they are not modeling homosexuality, they are arguing against mimetic reproduction, a process that seems natural and universal. When mimetic reproduction and orientation-blindness interact, LG parents are disadvantaged, the neutrality of courts is undermined, and the ability of courts to act in the best interests of children is compromised. Despite ongoing debates about nurture versus nature, mimetic reproduction will continue to have traction in custody decisions because of its historical, cultural, and practical value. Given this reality, LG parents and their advocates should work within, rather than against, theories of mimetic reproduction. Instead of arguing that they do not make their children gay through modeling, LG parents could argue, for example, that they create an environment in which it is safer for children to openly express their own sexual orientations. They could develop counter-narratives that highlight the positive aspects of a child's retaining access to an LG parent because of the traits that that parent can model. Courts should become more receptive to arguments emphasizing the positive aspects of LG parenting to prevent orientation-blindness from acting as a cover for bias.
Kim H. Pearson,
Mimetic Reproduction of Sexuality in Child Custody Decisions,
Yale J.L. & Feminism
Available at: https://digitalcommons.law.yale.edu/yjlf/vol22/iss1/3