Procedural Posture

The plaintiff filed a complaint to the family tribunal to obtain custody of her children, which had previously been granted to her former husband.

Facts

Following the divorce of the plaintiff and her husband (the respondent), custody of the two children was originally granted to the plaintiff. The original custody decision was reversed because of the plaintiff’s drug addiction. Three years later, the plaintiff requested custody on the grounds that she had recovered from her drug addiction and that her former husband was living with his male partner.

Issue

Whether a change of custody should be granted because of the respondent father’s sexual orientation.

Domestic Law

Civil Code of Argentina, Article 206.

International Law

Convention on the Rights of the Child, Article 3 (“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”).

Reasoning of the Court

The plaintiff advanced two main arguments to persuade the Court that she should be granted custody of her two children. The first was that she had completely recovered from her health problems, which had been the main reason for deciding to grant custody to the respondent. The second was that the children, by living with their father, were placed in a situation of “moral danger”.

The respondent contested the claim that the plaintiff had recovered from her drug problems and that she was able to exercise parental authority. He maintained that the plaintiff had never taken advantage of her visitation rights. Furthermore, she had proved herself to be irresponsible by not taking care of her children’s education and health when they lived with her.

The respondent also denied that the children were in a situation of “moral danger”. The plaintiff had failed to provide any evidence to support this allegation. On the contrary, the children enjoyed everything that was necessary for their physical, psychological and emotional development, as the plaintiff herself had recognised on previous occasions.

In the respondent’s view, the “right of the mother to stay with her children” had to be balanced against the principle of the best interests of the child, affirmed by the Convention on the Rights of the Child.

The Court observed that its decision concerning custody had to be based on the suitability standard provided by Article 206 of the Civil Code as well as the principle of the best interest of the child affirmed by Article 3 of the Convention on the Rights of the Child.

The suitability standard involved an assessment to determine which parent was more fit and more able to satisfy the conditions required to guarantee a child’s full and comprehensive development. However, the Court noted that, since these conditions could change over time, judicial decisions concerning custody were always open to revision. In the present case, the Court had to establish which parent was more suitable to exercise parental authority at that precise moment.

The Court then considered the arguments presented by the plaintiff: serious moral concerns about her former husband and his current relationship; the need to safeguard the morals and the well-being of her children; the situation of moral danger in which they had been placed while in the custody of their father; and the fact that she had completely recovered from her health problems.

The Court first reviewed evidence about the living conditions of the children while they were in their father’s custody. According to an inspection of their residence, the children looked well cared for and had an affectionate relationship with their father. The plaintiff herself had agreed this was so on previous occasions and the evidence provided to the Court did not identify a change in this regard.

The Court rejected the claim that the children were in “moral danger” or that there were “concerns of a moral nature” because they lived with their father. On the contrary, it had been demonstrated that the respondent complied with all his parental responsibilities.

The Court noted that social intolerance of, and hostility towards, homosexuality were widespread, and that there was a tendency to speak about homosexuality as if it were not a form of human behaviour but a sickness. This discourse focused on the morality of homosexuality, but it was the Court’s responsibility to decide whether a parent was suitable to exercise parental authority, regardless of his or her sexual orientation.

The Court held that “the lifestyle as well as the religious, political or ideological beliefs of a parent can only be judged if they have a negative impact on the development of the child”. The Court therefore argued that its analysis could not and should not focus on the respondent’s “non-conventional sexual behaviour”, since this did not per se constitute a factor implying that he was not suitable to exercise parental authority. In the Court’s view, the issue at stake was whether a person, whatever his or her sexual orientation, was or could be a good parent. Any other analysis would have constituted prohibited discrimination. The plaintiff’s arguments, based on alleged “serious concerns of a moral nature” or “moral danger” for her children, were therefore dismissed.

The Court found that no pervasive evidence that a change in custody would favour the plaintiff’s children. The Court rejected the plaintiff’s complaint and held that the respondent should retain custody.

LSF y ACP, Family Tribunal of the 4th Court District of the City of Cordoba, Argentina – Spanish (full text of judgment in Spanish, PDF)