The Washington Supreme Court recently considered this exact issue and issued a ruling earlier this year that all Washington trial courts now must follow. Previously, the relevant Washington law contained a loophole that arguably allowed a judge to favor a heterosexual parent over a gay parent. According to the Supreme Court, a court in the state of Washington must remain neutral and impartial with respect to a parent’s religion and sexual orientation. The court held that even if a parent’ s sexual orientation violated a child’s strict religious upbringing, a judge may not use this reasoning as the basis for a custody decision. Furthermore, if a witness in a child custody case expresses bias on these issues, then the parties’ entire parenting plan may be invalid.

In making a decision about child custody, the court must consider a number of different factors related to the best interests of the child. The sexual orientation of a parent is not one of those factors, absent evidence of some harm to the child. A court must base a custody determination on the child’s needs and interests, not on a parent’s lifestyle choices. Custody determinations that rely on discrimination against one parent for his or her sexual orientation are likely to be invalid. In fact, the Washington statute addressing parenting evaluations specifically states that the psychologist performing the parenting evaluation must not discriminate against either parent on the basis of various factors, including sexual orientation.

The Washington Supreme Court’s ruling is consistent with federal law, as discussed by the U.S. Supreme Court in at least two different cases. Although these cases involved related but different issues, the decisions made it clear that basing child custody determinations on a parent’s sexual orientation violates the U.S. Constitution.

At Ashby Law, we know how stressful, emotional, and complex child custody proceedings can be. If you are facing a child custody case, whether you are mother or father, you need the advice and guidance of an attorney with a background in family law. Contact our office today, schedule a meeting with an experienced Washington child custody attorney at Ashby Law, and learn how we can help you with your child custody case.