Can LGBTQ+ Parents Be Denied Custody? What Amendment J Didn’t Change—and Why Your Case Still Needs Strategy

LGBTQ+ families in Colorado may feel more secure after the enactment of Amendment J, but the law did not guarantee that custody disputes will always go smoothly. Courts still decide based on the “best interests of the child” framework—and biases, procedural missteps, or weak legal positioning can still jeopardize a parenting claim. This article examines what Amendment J changed (and didn’t), how Colorado courts approach custody disputes, and strategic steps LGBTQ+ parents should still take.

What Amendment J Actually Did — and What It Left Untouched

Amendment J repealed Section 31 of Article II of the Colorado Constitution, which had defined marriage as solely between a man and a woman. While the provision had been unenforceable since Obergefell v. Hodges (2015), its existence created lingering legal and political risk.

The repeal aligned Colorado’s constitution with current law and eliminated symbolic and legal barriers. However, it did not:

• Amend or override how courts apply parental responsibility statutes.
• Prevent disputes over non-biological parental rights.
• Resolve how parenting time is divided when parties disagree.

Custody outcomes are still determined under statutory law, particularly the best interests of the child standard found in C.R.S. § 14‑10‑124. While that law prohibits decisions based on gender or sexual orientation, results still depend on how the facts are presented—and whether the parent has clear legal standing.

How Colorado Courts Decide Custody: The Best Interests Framework

Under C.R.S. § 14‑10‑124, courts evaluate numerous factors to determine the best interests of the child. These include:

• The wishes of each parent
• The child’s wishes, if mature enough
• The relationship between the child and each parent
• The child’s adjustment to home, school, and community
• The mental and physical health of all individuals involved
• Each parent’s past involvement and ability to encourage a relationship with the other parent
• The geographic proximity of the parents

Importantly, subsection (1)(a.5) requires courts to consider whether expert evaluations are free from bias based on sexual orientation, gender identity, or gender expression. Subsection (2) also directs that courts cannot consider conduct that does not affect the parent-child relationship.

While the statute is designed to be neutral, application varies case by case—and non-biological or non-married LGBTQ+ parents may still face hurdles.

Situations That Complicate Custody for LGBTQ+ Parents

Despite legal progress, certain scenarios still pose legal risk:

• Non-biological parents without formal adoption: If one parent has not secured legal recognition, they may lack standing to seek parental responsibilities under C.R.S. § 19‑4‑105.
• Two-legal-parent limit: Colorado courts may enforce a two-parent cap under C.R.S. § 19‑4‑105(2)(a), which can exclude a third parent from rights, even if that person functionally co-parented.
• Bias in contested cases: Even when bias is legally impermissible, cultural or implicit biases can still surface in highly contested or high-conflict disputes.
• Evidence gaps: Parents who cannot show caregiving history, decision-making involvement, or emotional bonds may lose ground, regardless of sexual orientation.
• Modifications and relocations: Disputes over moving with a child or modifying existing orders still rely on proving substantial changes in circumstance, per C.R.S. § 14‑10‑131.

Even with constitutional clarity post-Amendment J, these challenges underscore the need for proactive legal planning.

Strategy Still Matters — Here’s What LGBTQ+ Parents Should Do

1. Secure Legal Parentage Early
   If you’re not the biological parent, complete a second-parent adoption or stepparent adoption—even if you’re married. This protects your legal status across state lines and in any future dispute.
2. Keep Records of Parental Involvement
   Maintain documentation of your role in caregiving, decision-making, education, healthcare, and parenting activities. This evidence is vital when evaluating best-interest factors.
3. Create a Thoughtful Parenting Plan
   A detailed parenting plan that anticipates future conflict (relocation, schooling, medical decisions) provides courts with a roadmap and shows good-faith cooperation.
4. Anticipate and Counter Bias
   In contested cases, be prepared to respond to implicit biases with factual evidence and, where appropriate, expert testimony. Don’t assume neutrality—show it.
5. Request Detailed Court Findings
   Courts must issue findings on the best-interest factors in contested cases. Ask the judge to specify how each factor was weighed, which can help in appeals or future modifications.
6. Act Early in Modifications or Relocations
   If you foresee needing to change a parenting plan or relocate with a child, consult counsel early and follow the procedures outlined in C.R.S. § 14‑10‑131.

The Bottom Line

Amendment J removed a symbolic and legal contradiction from Colorado’s constitution—but it didn’t erase the need for strong legal footing in parenting cases. LGBTQ+ parents still face challenges related to legal parentage, documentation, bias, and strategic planning.

If you’re preparing for a custody case or considering adoption, it’s wise to speak with an attorney who understands the evolving legal landscape for LGBTQ+ families in Colorado. Legal equality is the floor, not the ceiling—and the outcome of your case may hinge on how you prepare today.