Together, Limon and Lawrence create a new best practice for judges to use when
considering custody arrangements made in the best interests of a child.
182 On one hand, a judge
may not seek to “control [the youth’s] destiny” and consider a youth’s emerging sexual orientation
as an undesirable goal.
183 On the other hand, when granting custody, the youth’s rights weigh
heavily in favor of the supportive parent.
When judges are hostile to nonconforming gender identities and expressions, the best
interests principle is unable to protect the LGBT youth’s best interests.
185 Under the guise of
protecting the child’s best interests, judges can make decisions based off their own personal biases.
Some have argued that the best interests principle should give children the benefit of the doubt in
situations where there is a risk of harm to a child and the exact consequences of an action or
decision are unknown.
186 “Because the best interests of the child standard is highly subjective and
deferential, it is insufficient to protect the rights of the LGBT youth. Instead, a court must move
beyond its own conceptions of the child’s best interest, recognize the LGBT youth’s rights, and
187 Ultimately, the youth’s best interests, including the eventual realization of
the child’s own rights, should trump parental rights.
3. The Judge’s Discretion
When determining custody arrangements, the judge, an agent of the State, in essence acts
as parens patriae, and in their role as the ultimate trustee, they delegate the duty of trusteeship to
the parent deemed most capable.
189 Issues arise when two parents’ views regarding how their child
should be raised conflict, as the court is unable to advance the rights of one parent without violating
the rights of the other.
In custody proceedings, courts generally do not consider First Amendment rights (such as
the freedom of religion) as the court may neither advance nor inhibit religion and is obligated to
maintain an attitude of neutrality.
191 Courts should also aim to avoid considering separate social
prejudices or personal disapproval when making best interests determinations.
192 In all cases, a
youth’s rights disallow the court from considering a youth’s sexuality or expression as an
193 Matthew J. Hulstein, a graduate from the University of Iowa College of Law,
in Recognizing and Respecting the Rights of LGBT Youth in Child Custody Proceedings, stated
that, “in many, though not all cases, the youth’s rights may impose an affirmative duty upon the
court to favor the supportive parent so that the youth may fully realize her sexuality or gender
194 Advocates of LGBT youth rights, based off these general court standards
and rooted in the Lawrence decision, find that if a judge grants custody to the non-supportive
182 Hulstein, supra note 68, at 189.
183 Id. at 189.
184 Id. at 189–90.