Last edited: February 14, 2005

Homosexuality Secondary in Custody Ruling

Moore’s Comments Shift Focus of Case

Birmingham Post-Herald, February 20, 2002
2200 N. 4th Avenue, Birmingham, AL 35202
Fax: 205-325-2410

By William C. Singleton III, Birmingham Post-Herald

The recent state Supreme Court ruling denying custody to a lesbian mother had little to do with the issue of homosexuality, even though Chief Judge Roy Moore made it one, attorneys for both parties said.

Wendy Crew, who represented the California mother who sought custody of her three children now living in Birmingham, said the woman’s sexuality shouldn’t have been a factor in the case.

John Durward, attorney for the father, who has since remarried, said the woman’s lesbian lifestyle was mentioned in court but the trial judge’s ruling and the state Supreme Court’s ruling Friday were not based on that.

"The main issue was: Did she carry her burden to modify custody enough to justify sending the children across country?" Durward said. "She didn’t."

Moore’s written opinion, authored in addition to Justice Gorman Houston’s, highlighted the woman’s sexuality and cited historical law that called homosexuality "immoral" and against nature.

The custody battle symbolizes a cultural tug-of-war as Alabama and society in general grapples with the growing acceptance of homosexuality in the backdrop of continued resistance to officially recognize same-sex relationships.

And Moore’s legal opinion has reignited that battle.

"He seems to be saying no matter how horrific the non-gay parent is ... and how strong and good the gay parent is, they (the gay parent) should never have custody," Crew said. "That seems contrary to the best interest of children."

Gay and lesbians rallied on the steps of the state Capitol on Tuesday, pushing for the inclusion of homosexuals into hate crime legislation. Currently, Alabama’s hate crimes law do not include homosexuals. The rally commemorated the third anniversary of the death of Billy Jack Gaither, a 39-year-old Sylacauga man who was brutally killed Feb. 19, 1999, because he was gay, according to court testimony.

Moore’s legal opinion has become another rallying cry for the gay community.

"In these days when we remember the tragic deaths of Matthew Shepherd [sic], Billy Jack Gaither and all others who have suffered and died from hateful crime and evil; in these days when the Chief Justice of the Alabama Supreme Court uses religious language that can only be described as violent and deadly ... let us proclaim the reconciliation, the peace and hope and love of a God who reigns forever against darkness, against evil, against our being torn from one another," said Rev. Timothy Holder, rector of Grace Episcopal Church in Woodlawn. Holder was one of the speakers at the rally.

While the rally centered around the issue of homosexual rights, the ruling in the custody case did not focus on the mother’s lesbian relationship—at least on the surface.

Both the mother and father have declined interviews to protect their privacy and that of their children, their attorneys said.

The couple was divorced in November 1992 in Los Angeles, but both received joint legal custody of their three children, according to court documents. The father left California, eventually moving to Birmingham. The children lived with their mother for much of the time after the divorce.

In June 1996, after the mother began a homosexual relationship, she petitioned a California court to modify custody to allow the children to visit their father in Alabama, according to court papers.

"They wanted to come to Alabama to establish a relationship with their dad," Crew said. The agreement was that the children were to remain for one year, she said.

However, Durward said, the mother did not make that a part of the petition. In April 1999, the mother filed another petition to regain custody of her children. The father, in turn, filed a complaint to have the case transferred to Alabama.

During a Jefferson County domestic court hearing in June 2000, the mother accused the father of physical abuse. The father used the mother’s alcohol problem against her, according to court documents.

During the hearing, the father referred to the mother as a "lying, alcoholic lesbian," court testimony reveals. Both the youngest and middle sons testified during the trial. The oldest child did not testify because she was away at summer camp.

The 15-year-old boy testified that when he had expressed a desire to live with his mother, the father used numerous derogatory terms to describe her sexuality. The youngest son, who was 13 at the time of the hearing, made similar statements.

"There was a lot of unconverted testimony about the father’s behavior," Crew said.

Durward said the most serious physical abuse charge was that his client struck the 15-year-old boy. He acknowledged this but said it was a response to the boy hitting his older sister.

"My client did slap the boy with an open hand, basically to make a point that ‘Look, there’s always somebody bigger than you, so don’t try to be a bully,’" Durward said.

Durward said the incident was brought to the mother’s attention, who called her husband "a great dad." He said her e-mail comment was admitted as an exhibit in the hearing.

But 15 months after the incident and after she filed her petition to regain custody, the mother called the Alabama Department of Human Resources to investigate the father.

"DHR interviews everybody and takes no action," Durward said, adding that the DHR found nothing wrong in the home.

The mother also said the children’s grades fell when they moved in with their father. But the father countered that their grades fell after the mother started her homosexual relationship.

Crew said the mother proved she was a good parent and should have custody of the children.

"There was no testimony whatsoever that her lifestyle was any way detrimental to the children," she said.

Testimony, however, did reveal the children were involved in extracurricular activities at school and in church activities.

"She’s a very supportive parent and the children had testified that’s where they wanted to be," Crew said.

Durward, however, said in Alabama, a judge can consider the children’s request but "what the child wants to do is not controlling on the court." He added that the middle son said "the father was too strict and the mother allowed them to do what they wanted to do."

Despite the testimony, the judge said there was not a compelling reason to award custody to the mother. Alabama Civil Court of Appeals Judge Sharon Yates reversed the lower court ruling. Friday’s Supreme Court ruling overturned her decision.

The state Supreme Court ruled that "the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue."

Crew said she is considering appealing to the U.S. Supreme Court.

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