Appeal in Case of Gay Couple Ordered to Split Up Over Child
January 31, 2005
By 365Gay.com Newscenter Staff
Annapolis, Maryland—An appeals
court was told Monday that a lower court ruling that bars a man from living
with his partner while raising his 12-year-old son is unconstitutional.
The argument was the center piece of a legal brief filed
by Lambda Legal and the National Center for Lesbian Rights on behalf of [the
Father. Names removed at the request of Lambda Legal].
The brief argues that the lower court ruling violates the
U.S. Supreme Court’s 2003 decision on privacy.
[The Father] and his ex-wife, residents of Virginia at the
time, separated when their son was four years old. For the next
five-and-a-half years, the child lived with [the Father] and his partner, [the
partner], in a suburban Virginia home the couple purchased together.
The home had a back yard and was near a good school, [the
Father] noted Monday. Together, the two men provided a stable loving home, he
After the boy’s mother moved to Florida, she petitioned
for custody. A Virginia court issued an order giving [the Father] physical custody
of the boy but requiring [the partner] to move out of the family’s home.
In order to maintain two separate residences, the couple
sold their house and moved into smaller apartments in Maryland. Though [the
partner] visits his family as much as he can, the restriction keeps them
all from living in the same home together.
“This child’s world was turned upside down all
because a Virginia court issued a knee-jerk antigay custody restriction,”
said Susan Sommer, Supervising Attorney at Lambda Legal.
“He lost his home, his school, his park and most
importantly the proximity of the caring adult who has helped raise him. No one
wins with this arrangement, and it’s imperative that the court step in and
put the child’s interests first.”
A trial court in Maryland denied [the Father's] request to
remove the restriction. In the appeal filed today, NCLR and Lambda Legal urged
the Maryland Court of Special Appeals to remove the custody restriction
because of the drastic decline in quality of life it has caused for the child,
and also because it is unconstitutional.
The Virginia court based its decision on that state’s
sodomy law, which was struck down, along with 12 others nationwide, in a U.S.
Supreme Court ruling in 2003.
“[The Father] is a devoted parent who has done a
tremendous job raising his son,” said Shannon Minter, Legal Director for the
National Center for Lesbian Rights.
“[The partner] always has been a positive influence
in the child’s life. There is no reason that [the Father] should not be able
to live with his partner of nearly ten years, and the trial court was wrong to
let this harmful and unconstitutional situation stand,’ Minter said.
Though the child’s mother opposes letting [the partner]
move back into the home, she answered “I don’t know” to numerous
questions asking her if she had concerns about [the Father] and [the partner] living
together with the child. Lambda Legal and NCLR argue that the Virginia order
doesn’t benefit the child, and instead harms him.
Attorneys for the mother will file a reply to today’s
appeal before a date for oral arguments are set.
The case closely resembles that of Theron McGriff, an
Idaho man who was told by a court he could not have visitation rights with his
children while he lived with a male partner. Last year the Idaho Supreme Court
upheld that ruling.
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