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32 UCLA L. Rev. 852 (1984-1985)
Assessing Children's Best Interests when a Parent is Gay or Lesbian: Toward a Rational Custody Standard

handle is hein.journals/uclalr32 and id is 866 raw text is: COMMENTS
ASSESSING CHILDREN'S BEST INTERESTS WHEN
A PARENT IS GAY OR LESBIAN: TOWARD A
RATIONAL CUSTODY STANDARD
INTRODUCTION
The parent-child relationship has received careful protection in
both civil and ecclesiastical law throughout Anglo-American his-
tory.1 Under modem American law, the Supreme Court has ac-
corded the status of fundamental liberties,2 warranting protection
against all but compelling state interests,3 to parents' rights in the
1. The doctrine of paternal supremacy, under which the ancient Greeks and
Romans tolerated infanticide, began a slow erosion during the second century A.D.,
under Emperor Hadrian. Since then it has been limited continuously, though never
abandoned, under Western European and British law. 1 W. BLACKSTONE, COMMEN-
TARIES *452. In Anglo-American history, preserving the parent-child relationship in
its full strength and purity has been seen as an obligation under natural and civil law,
moral principles, and religious tradition. J. SCHOULER, A TREATISE ON THE LAW OF
THE DOMESTIC RELATIONS § 223, at 345 (5th ed. 1895). Parents' rights at common
law derived from their duties to protect, educate, and maintain their children, see id.
§ 233, at 362; those rights included recompense for their investment as well as sufficient
authority to carry out their parental responsibilities. Id. § 243, at 383.
2. See Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the right to conceive and
raise one's children is among Americans' essential liberties); Pierce v. Society of Sis-
ters, 268 U.S. 510, 518 (1924) (the parental right to guide one's child intellectually and
religiously is a most substantial part of the liberty and freedom of the parent); Prince v.
Massachusetts, 321 U.S. 158, 166 (1943) (It is cardinal with us that the custody, care
and nurture of the child reside first in the parents); Stanley v. Illinois, 405 U.S. 645,
651 (1971) (The private interest .. of a man in the children he has sired and raised,
undeniably warrants deference and, absent a powerful countervailing interest, protec-
tion.); infra notes 62-72 and accompanying text.
3. The state's compelling interest in terminating a parent's rights is the protection
of the child from harm. Some states provide for the extreme measure of termination in
cases of severe or intractable child abuse or neglect. See, e.g., CAL. WELF. & INST.
CODE §§ 300(d), 360, 361(b)(l)-(4) (West 1984); IND. CODE ANN. § 31-6-4-3(a)-(g)
(Burns Supp. 1984); N.Y. Soc. SERV. LAW §§ 371, 372-b, 384-b (McKinney 1983 &
Supp. 1984-1985); WIS. STAT. ANN. § 48.13 (West 1979 & Supp. 1984-1985). More
common are statutes allowing for termination of a parent's rights based on the child's
having been placed outside the home for a specified length of time and the likelihood
that the conditions which led to that placement will not be remedied in the near future.
See, e.g., CAL. CIV. CODE § 232(7) (West 1983); DEL. CODE. ANN. tit. 13, § 1103(5)
(1981); LA. REV. STAT. ANN. § 13-1601(D) (West Supp. 1985). See generally Reynolds

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