Mimetic Reproduction of Sexuality in Child Custody Decisions

This Article analyzes how courts making child custody determinations consider the sexual orientation of competing parents. It examines the crucial and troubling tension between a strong cultural belief in what I call mimetic reproduction and a reform designed to achieve equalityorientation-blind custody decisions. Mimetic reproduction is the deeply embedded belief that children become like their parents through modeling and imitation. Courts rely on mimetic reproduction to make predictions about a parent's possible influence on the child. Today, orientation-blind custody decisions are often reached using a nexus test that prevents courts from considering orientation unless it proves harmful to a child. Because sexual . Law Teaching Fellow, Williams Institute, University of California at Los Angeles School of Law. This Article was presented at the 2009 Williams Institute's Work-in-Progress Series, the 2009 Emerging Family Law Scholars Conference, the 2009 Law and Society Conference, and the 2009 National LGBT Bar Association Career Fair and Conference. My research has benefited from the insightful comments of and conversations with Devon Carbado, Carole Goldberg, Angela Riley, Saul Sarabia, Frances Olsen, Jerry Kang, Jyoti Nanda, Patrick Goodman, Clifford Rosky, Nan Hunter, M.V. Lee Badgett, Christine Littleton, Sari Kisilevsky, Addie Rolnick, and Louis-Philippe Hodgson. I extend thanks to Brad Sears, Doug NeJaime, Eugene Volokh, Catherine Smith, Kenneth Karst, Hiroshi Motomura, Noah Zatz, Nancy Polikoff, Russell Robinson, David Cruz, and especially to Cheryl I. Harris for their critiques and suggestions. Thanks also to Christy Mallory and Hentyle Yapp for their excellent research assistance, to Stephanie Plotin and the research staff of UCLA's Hugh & Hazel Darling Law Library, and to Deborah Megdal and the editorial staff of the Yale Journal of Law and Feminism for editorial assistance. 1. 1985 WL 3464, at *3 (Tenn. Ct. App. Nov. 5, 1985). 2. 699 P.2d 875, 879 (Alaska 1985). Copyright @ 2010 by the Yale Journal of Law and Feminism 54 Yale Journal of Law and Feminism [Vol. 22:53 orientation can only be taken into account when it is harmful, lesbian and gay (LG) parents are constrained from using mimetic reproduction arguments to advance their custody cases. LG parents must simultaneously convey that they are good parents and that they will not model homosexuality for their children. They must also demonstrate that they do not pose a risk of harm to the children. If LG parents and their advocates feel compelled by courts to continue arguing that they are not modeling homosexuality, they are arguing against mimetic reproduction, a process that seems natural and universal. When mimetic reproduction and orientation-blindness interact, LG parents are disadvantaged, the neutrality of courts is undermined, and the ability of courts to act in the best interests of children is compromised. Despite ongoing debates about nurture versus nature, mimetic reproduction will continue to have traction in custody decisions because of its historical, cultural, and practical value. Given this reality, LG parents and their advocates should work within, rather than against, theories of mimetic reproduction. Instead of arguing that they do not make their children gay through modeling, LG parents could argue, for example, that they create an environment in which it is safer for children to openly express their own sexual orientations. They could develop counter-narratives that highlight the positive aspects of a child's retaining access to an LG parent because of the traits that that parent can model. Courts should become more receptive to arguments emphasizing the positive aspects of LG parenting to prevent orientation-blindness from acting as a cover for bias. INTRODUCTION 55 I. REFORM . ...... 59 A. The Nexus Test 59 B. Neutrality and Neutral Application 61 II. UNFORESEEN CONSEQUENCES 66 A. Mimetic Reproduction 66 B. Negative Interaction 72 1. Nice Genes 81 2. Taking Parents as They Are 84 III. POSSIBILITIES 87 A. The Stakes 87 B. Counter-Narratives 90 CONCLUSION 94 2010] Mimetic Reproduction of Sexuality in Child Custody Decisions