Plaintiff (husband) and Defendant (wife) were married with two children. Plaintiff applied to the Court for a decree of divorce, child custody, and other ancillary relief. The Plaintiff argued that because Defendant was lesbian, the Court should prohibit Defendant from sharing the same bedroom or ﬂoor with any person during unsupervised visits with their children. He was concerned that if his children learned that their mother lived with a lesbian partner, they would be inﬂuenced by and therefore develop homosexual attitudes and practices. Defendant requested that the Court grant joint custody. For the past two years, both parties had informally shared custody of their children.
At issue in this case was whether the sexual orientation of a mother is a legitimate ground for limiting her right to child custody.
The Court heard expert testimony that Defendant’s sexual orientation was an irrelevant consideration for child custody. According to the South African Constitution, namely its provision against discrimination based on sexual orientation, the law cannot regard homosexuality as abnormal. Nevertheless, the Court stated that Plaintiff is entitled to be concerned about harm to his children, and the question instead is whether Plaintiff’s fear is reasonable.
The Court stated that in child custody disputes, the child’s best interest is the paramount consideration. The mother’s right to non-discrimination may therefore be limited if the Court determines that a custody arrangement is likely to pose a risk to the child. While the Court recognized that lesbian relationships are not inherently wrong or abnormal, it nevertheless must consider the social stigma that a child might suffer from his or her peers and society in general. The Court then noted that in certain circumstances, the state may be justiﬁed in discriminating against a lesbian mother in child custody decisions. However, the Court stated that in the present case the limitation of Defendant’s right to non-discrimination is not justiﬁed, and there is no legitimate reason to deny her custody of her children on the basis of her sexual orientation. This is true despite concerns that the children will come to recognize the social stigma under which their mother lives.
The Court concluded it is unfair to limit the defendant’s right to custody of her children merely on the basis of her sexual orientation. The Court therefore granted Plaintiff and Defendant joint custody.