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Sexual Orientation, Religion or Physical Disability and Child Custody in California

Occasionally when assisting clients in child custody cases, we are asked about the effect sexual orientation, physical handicaps, or religious practices/beliefs have on court child custody orders. We have successfully assisted in cases where clients were associated with at least one of these factors, including a few that had more than one in their specific case. As you progress through this information, you’ll notice a common factor that is apparent in each scenario.

Sexual Orientation

Assume for a moment that a couple is getting divorced because one of the spouses came out as homosexual. During the child custody proceedings, the other spouse argues that the opposing party’s sexual orientation is a bad influence on the children. For almost 30 years, courts have consistently held that a parent’s sexual orientation cannot solely be responsible as a determining factor in custody cases. Over time, the issue of sexual orientation has become increasingly open in mainstream society. In our experience, the issue has become non-existent in child custody determinations. Whether heterosexual or homosexual, orientation is deemed to be irrelevant to a child’s best interests by the court and family law judges.

Exception: Unless the sexual conduct of the homosexual parent places a child in physical danger such as sexual abuse, family law judges generally do not care whether a father or a mother engages in homosexual conduct in their private lives.


Family courts are not permitted to deny a parent custody or visitation on the basis of their religious beliefs or practices. In addition, courts will not typically prevent a parent from talking to a child about religion or including them in religious practices. As you may venture to guess, this is tied to the US Constitution and freedom of religion.

Exception: As mentioned, an individual’s religious practice is protected by the First Amendment and a family law judge doesn’t have the right to interfere in a family law case unless there is concrete evidence that the child is being placed in danger as a result of the religious practices. In our years of practice, we have never seen a case where custody was limited or denied due to the religious practices of a parent.

Physical Handicaps

Initially, it would seem logical to assume a physical handicap would be a factor in a child custody case because the disability may inhibit a parent’s ability to take care of a child (or children). In many scenarios, this is likely to be true. However, family courts are prohibited from basing custody decisions solely on a parent’s physical handicap. It is nothing more than another factor that the court considers when it examines all elements of the family dynamic and the care necessary for the children.

Exception: Strong, apparent evidence that a parent with a physical handicap cannot provide the basic needs of a child or children which results in a negative consequence toward their well being.

Earlier, we mentioned a common theme among all three instances discussed here. In case it wasn’t apparent, none of the scenarios carry a negative implication when applied to child custody cases unless there is strong evidence that the children are subject to harm or danger as a result of the practice or circumstance. The top priority held by the court and California family law is the welfare of children, so unless this becomes a question, sexual orientation, religious beliefs/practices, or physical handicaps will not be a sole deciding factor in determining custody.

If you’re a parent involved in a child custody matter and you feel that a fair outcome is in jeopardy due to factors such as those discussed here, please contact us so we can discuss in further detail and protect your rights as a parent.

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