Last edited: April 28, 2005

Gay Father Fights Antigay Custody Restriction

The Advocate, February 2, 2005

(AP)—A court ruling forcing a Maryland gay father’s partner to move out of the house where the father is raising his 12-year-old son “has been so negative for the child in so many ways,” the father’s lawyer said Monday. “It’s very upsetting to the child. He wants his father’s partner to be able to move back in, and they can just resume their normal family life,” said Shannon Minter, lawyer for [the Father. Names removed at the request of Lambda Legal]. Minter, legal director for the National Center for Lesbian Rights, filed a brief with the court of special appeals Monday asking the court to dissolve a Virginia court order prohibiting [the partner] from living in the house with [the Father] and his son. “The son just misses the partner very much. He had been living with them 5 1/2 years from about [the age of] 4 to 9 1/2. It’s very upsetting to the child,” Minter said.

In an e-mail response to the Associated Press, [the Father], who is deaf and whose native language is Swedish, said that before [the partner] had to move, “we were happy and thought we would be happy like everyone who has family. Our happy life was smashed in the result of the Virginia court’s ruling.... Our son has missed [the partner] very much that he cried on every night in the beginning and asked me why [the partner] moved out. I struggled to find a way to explain to him why this happened.”

According to court papers, after [the Father] and the boy’s mother, [the Mother], separated in 1996, [the partner] moved in with the father and son. Three years later, the two men bought a house together, and [the partner] played an active role in raising the boy. But in 2000, when the mother moved to Florida, she sought custody of the boy. A judge in Alexandria, Va., awarded joint legal custody to the parents, but gave [the Father] primary physical custody with the condition that [the partner] move out of the house. The two men then moved to Montgomery County, Md., and rented separate apartments. [the Father] filed suit in Montgomery County circuit court to dissolve the Virginia court order, but the suit was dismissed.

[The Mother] is opposing the move to dissolve the Virginia order but “has no objection to the father and her son living in Maryland” and is not seeking to alter the custody judgment, said Patrick Stiehm, her lawyer. “She is satisfied with the way things have gone to this point. She sees no reason for making that one particular change.” He would not elaborate on why [the Mother] does not want the order prohibiting [the partner] living with her former husband and her son changed.

Minter said because of the additional financial burden of maintaining two households, [the Father] and [the partner] had to sell the Virginia house and moved to smaller apartments in Maryland. “The father has lost the tremendous benefit of having a second person on the scene to help with chores and dinner and caretaking, so he’s been able to spend less time with the child,” Minter said.

The gay advocacy group Lambda Legal is also supporting [the Father's] lawsuit. “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 important—the proximity of the caring adult who has helped raise him.”

Minter said the lower court judge, without hearing arguments, mistakenly denied the motion to dissolve the Virginia order, saying the father had not shown any change in circumstances since the ruling in Virginia. “We think Maryland law is very clear if a parent is alleging that an existing order is detrimental to a child, that necessarily is enough to trigger a reconsideration of the order,” he said. Minter also said a change is warranted under a 2003 ruling by the U.S. Supreme Court striking down the Texas sodomy law.

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