Last edited: April 28, 2005

Gay Pair Appeals Order to Split Over Child, January 31, 2005

By Ann Rostow, PlanetOut Network

SUMMARY: The National Center for Lesbian Rights and Lambda Legal have teamed up on an appeal in the custody case of a gay father, [Name removed at the request of Lambda Legal].

The National Center for Lesbian Rights and Lambda Legal have teamed up on an appeal in the custody case of a gay father, [Name removed at the request of Lambda Legal].

[The Father] and his ex-wife, [the Mother], divorced back in 1996, when their son [the son] was 4. [The Father] kept custody of [the son], and [the Father's] new partner, [the partner], moved into their home in Virginia. [The partner] had long been a friend to the family, and was also [the son's] godfather.

In 2000, [the Mother] moved to Florida, and sought custody of [the son] from a family court in the Washington, D.C. suburb of Alexandria, Va. In May of 2002, the court gave custody to [the Father], but only on the condition that [the partner] move out at the end of the school year.

At that point, the two fathers had been raising [the son] as a family for over five years, and [the son] was then 9. They had bought a house in Alexandria with a large back yard, and settled into comfortable routines, where [the partner] would make dinner and [the Father] would help [the son] with his homework. In ordering [the partner] out of the house, the Alexandria court was following archaic state policies, based in large part on the fact that sodomy was illegal in Virginia.

In June of 2003, [the Father] moved from the house in Virginia into a rented apartment roughly 26 miles away in Maryland. After transferring the custody decree from Virginia to Montgomery County, [the Father] then asked a Maryland court to remove the restriction and allow [the partner] to return to the family. In the year or so since [the partner] had moved out, [the Father] argued, [the son] had suffered.

The men were obliged financially to sell the house in Virginia, and without a second income, [the Father] could not afford to buy a comparable house in Maryland. Without his partner at home, [the Father] had less time for homework and less time for [the son] in general. Plus, [the son] missed his other father and worried about him.

These negative developments amounted to a material change in circumstances that could trigger a review of the custody arrangements, [the Father] told the court. In another motion, filed in February 2004, [the Father] noted that the U.S. Supreme Court’s ruling in Lawrence v. Texas, which struck sodomy laws like the one in Virginia, also called for a re-evaluation of the decree. Unless the presence of [the partner] was causing [the son] harm, there was now no legal justification for his eviction.

Last fall, however, the circuit court ruled against [the Father's] motions without holding a hearing or a finding of fact. Instead, the judge determined that nothing had materially changed since the Virginia court made its decree, and that no change in the custody order was justified.

On Monday, the two LGBT legal groups filed an appeal before the Maryland Court of Special Appeals, citing case law for the fact that a child who is upset and doing poorly as a result of a custody order is inherently in a “materially changed circumstance.” Furthermore, all custody decisions, including the decision about whether to review a custody order to begin with, are to be based on the best interest of a child. Finally, the groups argue, the anti-gay prejudice that underlay the Virginia edict is no longer supported by legal precedent.

“This child’s world was turned upside down all because a Virginia court issued a knee-jerk, anti-gay custody restriction,” said Lambda’s Susan Sommer in a statement. “He lost his home, his school, his park and most importantly the proximity of the caring adult who has helped raise him.”

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