Homosexuality and Child Custody through the Lenses of Law: Between Tradition and Fundamental Rights

Denise Amram


In the course of child custody disputes, the application of the principle of non-discrimination concerning parents and their sexual orientation was internationally recognised by the decision in Salgueiro da Silva Mouta v. Portugal. However, it does not yet seem to have been universally accepted, due largely to considerations regarding common morals, where some individuals still have difficulty in admitting that the capacity of a person to be a parent is not determined by his or her sexual inclination, but rather by his or her parental skills. The aim of this paper is to verify the impact that morality has on the principle of non-discrimination, and on the principle of the best interest of the child, which is, instead, universally accepted as the main guideline in deciding child custody disputes. Thus, comparing some international trends with Italian case law, the author explores whether, in Italy as well as in other European legal systems, the contrast between legal issues and ethical values can be solved in favour of an evolution of the traditional meaning of the family.



Cite as: D. Amram, Homosexuality and Child Custody through the Lenses of Law: Between Tradition and Fundamental Rights, vol 15.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2011), <http://www.ejcl.org/151/art151-1.pdf>.

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