Impermissible, holds Maxwell v. Maxwell (Ky. Ct. App. Oct. 19, 2012):
[W]e now turn to the family court’s decision to award Robert sole custody. We begin by addressing Angela’s contention that the court erred by considering factors unrelated to the best interests of the children. The focus of the family court’s decision was that Angela’s same-sex relationship was harmful to the children. The family court states in its order:
The Respondent is seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.
First, we observe that under the statutory mandate of KRS 403.270(2), the court is required to determine custody based on the best interests of the child by considering the factors discussed previously herein…. The statute’s next section states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.” KRS 403.270(3). Therefore, Kentucky’s custody statute is designed to focus on conduct that disturbs the interaction between the parent and child. Here, the family court’s decision relies heavily on Angela’s same-sex relationship as problematic without demonstrating that the children were harmed or that their relationship with Angela was harmed. In fact, the evidence suggested that the children were adjusting quite well if not thriving. Thus, under KRS 403.270(2), the court is to consider all relevant factors; however, KRS 403.270(3) does not allow sexual orientation to be a determining factor unless there is a direct negative impact on the children….
[N]ot allowing a parent to have custody of a child because of a threat of private discrimination violates the due process and equal protection clauses of the federal and state constitutions. Although sexual preference has not enjoyed federal constitutional protection under the due process clause, the United States Supreme Court has said in other contexts that homosexuals may not be singled out for disparate treatment. Romer v. Evans, 517 U.S. 620 (1996). We believe that the court’s determination that because Angela is in a same-sex relationship, it is sexual misconduct is not only incorrect but also singles her out for disparate treatment. Further, the United States Supreme Court held in Palmore v. Sidoti, 466 U.S. 429 (1984), in a case involving interracial marriage that custody cannot be denied based on the private biases of others. Hence, characteristics such as race, religion, or sexual identity provide no basis for generalized court concern. Finally, in Vinson v. Sorrell, 136 S.W.3d 465 (Ky.2004), the Court said that “[p]arents of a child have a fundamental, basic and constitutional right to raise, care for, and control their own children.” Thus, it is a violation of Angela’s due process, equal protection, and fundamental right to parent her children using only her sexual orientation as a determinative factor….
The only issue specifically mentioned by the family court, which was related to future harm to the children, is that the children might be teased about their mother’s same-sex relationship and that it might cause difficulty with the parents’ communication. If the children are subject to teasing, it will likely occur whether their mother has custody or not. The harm from removing them from a positive and loving relationship with their mother seems much more consequential. As far as communication problems, most divorcing couples with children must learn after a breakup to communicate properly and deal with conflict. Angela’s sexual orientation does not seem causative or primary to these parents’ difficulties with communication. In sum, the evidence indicated that the children are thriving and that the present arrangement for physical custody of them has not hampered the parents communicating about the children’s schooling, extracurricular activities, health matters or vacations. Harm to these children must have an evidentiary basis and cannot be assumed. Here, harm has not been shown….
Finally, we deal with Angela’s argument that the family court abused its discretion by restricting the parties from cohabitating with a person that he or she is not married to during parenting time. Because we are remanding this case to the family court, the prohibition on non-family members spending the night should be retried on remand. This retrial must be done with the understanding that the cohabitation of any party, while a factor, is not dispositive on its own. It must be ascertained with the children’s best interests in mind. Clearly, changes in moral standards and the inability of same-sex couples to legally marry are also relevant. Consequently, the family court must determine the efficacy of the prohibition based on the best interests of the children.