8 Geo. Mason U. L. Rev. 389 (1985-1986)
Homosexuality and the Custodial Parent in Virginia - The Effects of Roe v. Roe

handle is hein.journals/gmaslr8 and id is 395 raw text is: HOMOSEXUALITY AND THE CUSTODIAL PARENT IN
Child custody disputes always involve a subjective judicial decision
that has an overwhelming impact on the lives of all involved. Most ju-
risdictions1 have traditionally applied the best interests of the child
standard to resolve the custody issue.2 An additional material change
in circumstances test is employed when courts must determine
whether a change in the initial custody order is warranted.' Although
Virginia requires an evaluation of all relevant factors in applying these
tests,4 they are inherently vague and thus allow for substantial discre-
tion by the trial court. This discretion, while essential on the one hand,
provides the seed for judicial abuse on the other, especially in cases
involving a homosexual parent.
Courts have differed in their application of the best interests test
in cases where a homosexual parent is involved. Some courts have held
that homosexuality is merely a relevant factor to be weighed as part of
all of the evidence and have required that a nexus be demonstrated
between homosexuality and harm to the child.5 Other courts have de-
clared the parent who exposes the child to his or her homosexual pref-
erence to be unfit per se.6 In Roe v. Roe7 the Virginia Supreme Court
for the first time reviewed a situation in which a custodial father en-
tered into a live-in relationship with his homosexual lover and held that
the father's continuous exposure of the child to his immoral and illicit
relationship rendered him an unfit and improper custodian as a matter
of law.8
1. H. Clark, The Law of Domestic Relations in the United States 572 n.2 (1968).
2. E.g., Durrette v. Durrette, 223 Va. 328, 331, 288 S.E.2d 432,-433 (1982); Campbell v.
Campbell, 203 Va. 61, 64, 122 S.E.2d 658, 660 (1961); Phillips v. Kiraly, 200 Va. 345, 351, 105
S.E.2d 855, 859 (1958); Mullen v. Mullen, 188 Va. 259, 265, 49 S.E.2d 349, 354 (1948).
3. See, e.g., Keel v. Keel, 225 Va. 606, 611, 303 S.E.2d 917, 921 (1983); Featherstone v.
Brooks, 220 Va. 443, 446, 258 S.E.2d 513, 515 (1979); Campbell v. Campbell, 203 Va. 61, 65,
122 S.E.2d 658, 661 (1961).
4. Va. Code  20-107.2 (1984).
5. See infra notes 26-36 and accompanying text.
6. See infra notes 9-20 and accompanying text.
7. 228 Va. 722, 324 S.E.2d 691 (1985).
8. Id. at 727, 324 S.E.2d at 694.

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