A bias for balance, in the best interests of the child

In a private family law dispute, paradigmatically a dispute over which parent the child should live with, the law has to decide which parent is better for the child to live with. I claim that when judges decide this question, the parent’s deviancy weighs negatively in the scales. After providing case law illustrations of lesbianism and naturism, I examine the main arguments courts give for this presumption against deviance: ‘frightening the horses’; ‘social isolation’; and ‘open futures’. I suggest that the first two of these arguments depend on the parent’s deviant status, and that the third argument does not support a general presumption against deviance. I then turn to the hardest question of whether the presumption against deviance is generally justifiable, concluding that judges should at least exercise care and caution, bearing in mind the circularity of the arguments employed against deviants and the stakes that are stacked against them.