When Homosexuality Ends Marriage: Courts Still Mostly Awarding Custody of Children to the `Straight' Parent

By Wyatt, Rebecca | The Washington Times (Washington, DC), October 26, 1999 | Go to article overview

When Homosexuality Ends Marriage: Courts Still Mostly Awarding Custody of Children to the `Straight' Parent


Wyatt, Rebecca, The Washington Times (Washington, DC)


When Clay McDonald, a pilot living in west Tupelo, Miss., and his lesbian wife divorced two years ago, their three children went in two directions. He got full custody of the two youngest daughters. His wife, "R.M.," got the oldest girl.

But Mrs. McDonald wanted her lover to see the children as well. After Mr. McDonald refused to allow the lover to take care of the children during visitation times, the ex-wife sued for custody.

In March, the Mississippi Chancery Court sent the younger two children back to their mother.

Mr. McDonald, who now only gets to see his children on alternate weekends, said he will take the case "all the way to the Supreme Court" to get them back.

"I may have to lose a couple of battles to win the war," he said.

Ordinarily, a court case involving a husband, his lesbian wife and their three children might not get much media attention these days, except for the complicating factor of the wife's lover.

"Love triangles," where the same-sex lover of a husband or wife wants access to the estranged couple's children, is increasingly a factor in divorce cases.

Michael Adams, one of the lawyers from the American Civil Liberties Union representing Mrs. McDonald, said courts are starting to treat homosexual parents differently.

"There's certainly a trend in many states to recognize what all the research shows, that gays and lesbians make great parents," he said.

Until now, most custody cases involving one homosexual parent have ruled in favor of the heterosexual partner. In 1998, for instance:

* The Alabama Supreme Court ruled in Finney vs. Finney that a remarried man and his wife would have custody of his daughter, thus removing custody from the homosexual ex-wife. This ruling in June, authored by Alabama Supreme Court Justice Champ Lyons, was based on Alabama's anti-sodomy law.

* The North Carolina Supreme Court took custody away from a homosexual father in Pulliam vs. Smith. With Chief Justice Burley Mitchell ruling for the majority in July, the court said that the active homosexuality of the father would be a bad influence on his two sons.

The Pulliam case was especially noteworthy because the mother had originally deserted the father, Fred Smith, back in 1991, after the marriage broke up. She moved in with a man she eventually married. Mr. Smith kept custody of his two sons until 1995, when his ex-wife found out that a male lover had moved in with him. She went to court to regain custody, claiming her ex-husband's homosexual practices were harming the boys.

A judge gave her custody, but a state Appeals Court reversed that decision, saying the boys did well in school and showed no major signs of emotional problems. The appeals court suggested more harm would come to the boys if they stayed with their mother.

However, the state Supreme Court ruled the boys, now 10 and 13, must stay with their mother because the father was engaging in sex behind closed doors with his lover.

* The Missouri Supreme Court ruled in September in DeLong vs. DeLong that a homosexual mother could not have custody of her children. The Missouri justices partially based their decision on the woman's sexual orientation.

* But a Maryland Appellate Court Judge, Howard S. Chasanow, wrote for a seven-judge panel that a homosexual father may continue to have overnight visits with his two children in the presence of his partner. This December 1998 ruling in Boswell vs. Boswell was based on the consideration that the same standard should be applied to both heterosexual and homosexual relationships in terms of custody and visitation. …

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