Sunday, July 8, 2012

Child custody, sexuality & human rights: Atala ruling in perspective

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

Earlier this year, the Inter-American Court of Human Rights  issued its decision in Atala v. Chile (decision in Spanish; a summary of the decision in English can be found here), finding that the Chilean government violated a lesbian mother’s human rights by terminating her relationships with her three children and assigning custody to their straight father. As noted in a previous IntLawGrrls post by Alli Jernow, it was the first sexual discrimination case ever heard by the Inter-American Court. As such, the case generated quite a bit of interest in the United States, prompting a number of human rights organizations to file a 60-page Amici Curiae brief, including the International Women's Human Rights Clinic at CUNY Law. (Prior IntLawGrrls' posts on the Atala case can be found here and here.)
The Inter-American Court’s opinion closely follows the arguments presented in the brief, and re-conceptualizes the status of lesbian and gay parents engaged in custody disputes in family courts involving their former hetero partners.
As the amici argue, empirical social science data may be helpful in determining whether a parent’s sexual preference has an impact on their children, but prevailing social attitudes and moral imperatives have no place in the legal assessment of the best interests of the children. Further, the brief noted that social science research to date has shown that the sexuality of a child’s parents has no effect on the child’s development or behavior.
One of the main assertions of the Atala panel was that adjudicators who drew negative inferences from the sexuality of lesbian and gay parents in custody disputes did so by positing that the children would suffer in their care and therefore, affording those parents custody rights was not in the children’s best interest. In effect, the panel asserts, the courts were using the best interests of the children as a proxy for social discrimination, rather than raising legitimate concerns relevant to the best interest analysis. This is the most important contribution of the Atala decision to the international legal debate concerning the role of the state in both protecting individual rights (family and sexual orientation) traditionally perceived of as “private” matters and the myriad normative issues that arise when internationally defined individual human rights are violated by the actions of state governments.
Another interesting issue raised by the Inter-American Court was the promotion of an expansive view of the definition of family, which is to be distinguished from a closed or traditional definition limited to two parents of the opposite sex in a monogamous relationship.

The decisions of the Chilean courts in Atala revealed social discomfort with non-traditional definitions of family, particularly when the sexuality of one parent is disfavored in the existing cultural norms. The Inter-American Court ’s response again rejected the dominance of prejudice against non-traditional families in the best interest analysis, emphasizing that the more relevant determination is whether specific parental behaviors have a real, proven negative impact on the children’s well-being rather than, “speculations, presumptions, stereotypes or generalizations” about parental characteristics or preferences.
As the decisions of the Inter-American Court gain prominence in the evolution of international customary law with respect to human rights and the obligations of states to respect (if not protect) them, opinions like Atala provide litigants and advocates with a legitimate international human rights framework to utilize as a counter-narrative to the prevailing societal prejudices that gain traction in domestic family courts.

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