Will My Sexual Orientation Affect My Timesharing Arrangement?

A mother and her two small children sit on a bench in the woods, facing away from the camera

One of the major issues in every divorce case is the division of timesharing between parents and the establishment of a parenting plan. Whether you are apart of a same sex couple or heterosexual couple, the division of time with your children is an emotional task that needs expertise, compassion, and knowledge of the law. Contact your Florida Child Custody Attorney today to discuss your unique situation and your desires in a parenting plan.

Time sharing refers to the schedule enacted by the court to determine the amount of time spent with each parent. Florida Statute 61.13(2)(b)(1), explicitly states:

“It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate… There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”

Simply stated, Florida favors shared or 50/50 custody. However, this has not always been the case. As seen in past cases, Florida courts held sexual orientation to be a valid reason to withhold custody of a child. For instance, in cases like Maradie v. Maradie, Packard v. Packard and Ward v. Ward, the court held the sexual orientation of a parent to be a valid reason to withhold time sharing and award primary custody to the heterosexual parent. These cases occurred between the years of 1996 and 1997. In Maradie v Maradie, 680 So. 2d 538 (1996) the court awarded primary custody to the father as the mother was a lesbian and “a homosexual environment is not a traditional home environment and can adversely affect a child.” Id.  Ultimately, the court held that sexual orientation of a parent may be considered when determining custody arrangements and the moral fitness of the parent. Id. A year later, the court was confronted with a similar case. Packard v Packard, 697 So. 2d 1292 (1997). When determining custody of the children, the court “awarded custody of the parties' two minor children to appellee father because it was in the best interest of the children to be raised in a more traditional family environment. The court made its ruling based upon the fact that appellant mother was a lesbian.” Id. However, when confronted at the appellate level, court remanded the issue back to the trial court, to determine what was meant by “traditional family environment.” Id. Finally, in Ward v. Ward, father sought review of custody award to mother on the grounds that mother was living a homosexual lifestyle, and the conduct had an adverse effect on the child. Ward v. Ward, 742 So. 2d 250 (1996). The court affirmed the decision to grant modification of the custody arrangement as they found the mother was exposing the child to inappropriate behavior for her age and that exposure and behavior was so significant that it could have an adverse effect on the child. Id. That inappropriate behavior, being the sexual nature of mother and her lesbian partner. These rulings and outdated ideals were not overturned until 2000.

In the Jacoby v. Jacoby case that the court found sexual orientation alone should not be considered a factor in timesharing. Jacoby v Jacoby, 763 So. 2d 410 (2000). Once again, mother and father were involved in a dissolution of marriage where custody of children was involved. Id. The mother was a homosexual living with her lesbian partner. Id. The trial court awarded custody to the father, penalizing the mother for her homosexual behaviors. Id. However, the court of appeals reversed the judgment, holding that a parent should not be penalized due to their sexual orientation without evidence that such conduct harms the children. Id.

The court overruled this long standing assumption that simply being a homosexual and living out such a lifestyle has a negative effect on the children within the home. This was a huge victory for the homosexual community in the courts.

Presently, the elements the Court looks to to determine custody of a child is summed up in the phrase “best interest of the child.” In assessing the best interest of the child standard, the court looks to the parent’s mental, physical and moral status; criminal history of parents; relationship between the child and parent; housing situations of each parent; ability of parent to meet child’s physical, mental and emotional need; parent’s involvement in the child’s life and any other factors the judge determines relevant to a custody determination. Fla. Stat. 61.13(3).

Overall, you will not be penalized for your sexual orientation. In fact, the court looks solely to your ability to parent your child and provide a safe, loving, and healthy environment. If your partner is attempting to use your sexual orientation against you in your child custody dispute contact your Florida Child Custody Attorney today. We will be able to fight for you and ensure your parental rights are protected, and you are awarded proper and fair timesharing with your child based on the best interest of the child.

Speaking to an attorney at our Florida office is free of charge, and we accept calls 24 hours a day, 7 days a week. Contact us at 850-307-5211 or complete an online contact form to get in touch with a member of our team today.

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