Breakthrough in international human rights law for gay parents in custody fights

by on April 23, 2010  •  In Family law, International

The Inter-American Human Rights Commission (IAHRC) has ruled that discrimination against a parent in a child custody dispute because of sexual orientation violates the American Convention on Human Rights. The Commission’s finding came in a case brought by Karen Atala, who is herself a judge (a Jueza de Garantia, or criminal court judge) in Santiago.  The Commission decision repudiates a 2004 ruling by the Supreme Court of Chile ordering that Atala’s three daughters be permanently removed from her custody. [Commission determinations are not published, but are conveyed to the appropriate national government, directing it to take action to ensure that similar future violations do not occur. An earlier decision in the case, granting jurisdiction, can be found at]

According to Paula Ettelbrick, who as ED of IGLHRC in 2004 took on coordination of U.S.-based support for Atala's case, this decision is "the only one outside of the European human rights system to analyze the rights of LGBT parents to continued custody and visitation with their children pursuant to the mandates of an international treaty." Atala spoke about the case at the Williams Institute's Global Arc of Justice Conference last year in Los Angeles.

Following are additional excerpts from Paula's analysis:

Karen Atala had been married for nine years when she and her husband decided to separate. They both agreed that it was best that their three young daughters remain with her. That is, until she met her now partner, fell in love, and invited her to share her life with her children. On January 30, 2003, within weeks after her partner moved in, the girls’ father filed a legal action claiming that the children will suffer harm if they live in a home with their lesbian mother and her partner. Thus began a seven-year legal odyssey.

Karen lost the critical first round and, as far as I know, has not lived with her children since May 2, 2003, when the Regular Judge of the Juvenile Court of Villarica issued a provisional order removing custody of the girls from the home of their mother and placing them with their father. There can be little doubt that this was a purely homophobic move, given that no hearing had been held and no evidence collected….

After the Juvenile Court’s provisional order, the case then was transferred to another judge, the Acting Judge of the Court of the First Instance in Villarica, who held a full hearing, taking evidence from experts and people close to Karen and her family. On October 29, 2003, that judge issued an opinion rejecting the father’s custody claim, stating that:

“The sexual orientation of the mother does not constitute an impediment to develop a responsible motherhood…The respondent suffers from no psychiatric pathology that would make her unfit to perform a mother’s role …no concrete evidence has been shown that the presence of the mother’s partner in the home is harmful to the well-being of the girls … having analyzed the evidence presented, there is no reason to presume the existence of bad or dangerous examples for the morality of the girls…the court concludes that the girls have not suffered any discrimination to date and what the witnesses for and relatives of the plaintiff express is a fear of possible discrimination in the future. With respect to this point it should be mentioned that this court must base its decision on definite and proven facts in the case and not on mere assumptions or fears.”

…[T]he father appealed to the Court of Appeal in Temuco…The Court of Appeal agreed that there was no proof that the children would suffer harm from living with their mother and her partner. On March 30, 2004, the Court of Appeal upheld the lower court’s judgment.

… [The father then appealed to the Supreme Court of Chile.] The Supreme Court issued an order preventing the girls from being moved to their mother until it could fully review the case and issue a final decision.

On May 31, 2004, three of the five justices on the Supreme Court overturned the decisions of both the trial court and the court of appeals. They characterized the daughters as being in a “situation of risk” that placed them in a “vulnerable position in their social environment, since clearly their unique family environment differs significantly from that of their school companions and acquaintances in the neighborhood where they live, exposing them to ostracism and discrimination, which would also affect their personal development.”

Rejecting the evidence as fully examined by the trial court and the court of appeal, the majority instead decided to venture into the land of speculation:

“Apart from the effects that that cohabitation could have on the well being and psychological and emotional development of the daughters, given their ages, the potential confusion over sexual roles that could be caused in them by the absence from the home of a male father and his replacement by another person of the female gender poses a risk to the integral development of the children from which they must be protected.”

The two dissenting judges of the Supreme Court determined, by contrast, that “the opinions contained in the record, both from psychologists and from social workers, infer that the mother’s homosexuality does not harm the rights of the girls.”


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