The Neutered Parent

Despite family law’s broader recognition of nonmarital sexualities and nonmarital parental status in the past forty years, marriage has continued to shape the legal and social experiences of parents in a critical aspect of their lives — sexuality. Encompassing sexual behavior and sexual orientation, the sexuality of parents has curiously drawn little attention in legal scholarship, except in contexts the law has deemed aberrant. This Article breaks ground by widening the lens on parental sexuality to examine how the law’s conventional framing of evaluations of parental sexuality obscures the marriage-based structure of these appraisals. The law of custody and visitation, in particular, reveals a legal and social preference for that perceived as “sexually neutral” parenting, an ideal that assumes that parenting can and should occur far removed from parents’ sexuality. As I argue in this Article, family law has premised this ideal on a dichotomy of parental sexuality based on marriage and on traditional, gendered norms of parental sexuality within marriage. Parents hewing to traditional marriage-based norms of parental sexuality have been held up as embodying a “sexually neutral” baseline, pursuant to which their sexuality fails to register as problematic. By contrast, parents who have strayed from these norms — historically, sexually active heterosexual mothers and lesbian and gay parents — have tended to be perceived as “sexually salient.” The legal construction of a parent as “sexually neutral” or “sexually salient” shapes how courts assess harm in making child placement decisions and promises to influence evaluations of parental fitness across a variety of evolving family law contexts, including same-sex marriage. The dichotomization of parental sexuality based on marriage obscures the ability to assess actual harm to children. Moreover, this treatment of parental sexuality “neuters” parents. It metaphorically diminishes their sexual capacity by forcing sexually nonconforming parents to adhere to a standard of sexual neutrality that is fundamentally structured in opposition to them. Moreover, it undermines parents’ ability to achieve the laudable goal of experiencing meaningful adult-oriented parental sexuality in the context of successful parenting