Shenandoah Valley Friends
Reprinted from 
Friday, August 21, 1998
Custody Ruling Called ‘Miserable’
North Carolina high court takes children from Gay father
by Peter Freiberg
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| Beatrice Dohrn said the ruling will hurt unmarried heterosexuals: "It's not just that we lost, we took straight people down with us." |
For the second time in less than two months, the highest court in a Southern state has taken custody away from a parent for being openly Gay, raising fears that the region is becoming increasingly hostile to the rights of Gay parents.
In a decision handed down July 30, the North Carolina Supreme Court ruled 6 to 1 that a 39-year-old Gay man cannot retain custody of his two sons, even though he parented them alone for five years after his wife left him for another man. The court cited no adverse effects of his parenting on the children, now 12 and 9.
The court upheld a lower court opinion that included the father’s "active homosexuality" and his living with his lover as being among the "unfit and improper influences" that are "detrimental" to the best interests and welfare of his children.
The North Carolina decision comes after the Alabama Supreme Court, in a unanimous decision on June 19, removed an 8-year-old girl from the custody of her Lesbian mother because the mother lives in an open relationship with another woman. The Alabama court said that while the mother provided her daughter with good care, she exposed the child "to a lifestyle that is ‘neither legal in this state, nor moral in the eyes of its citizens.’"
Kate Kendell, executive director of the National Center for Lesbian Rights, said that while the trend in state courts has been to consider sexual orientation irrelevant to parenting ability, the two decisions signaled that southern courts "are going to by and large be very inhospitable places to litigate on behalf of Lesbian and Gay parents."
Kendell said the "bumpy ride" she foresees in the southern judicial system is being influenced by anti-Gay pronouncements made by some of the region’s politicians, such as Sen. Trent Lott (R-Miss.), the Republican majority leader.
"There’s no doubt in my mind," Kendell said, "that when you have a key elected official in the Senate comparing Lesbians and Gay men to alcoholics and kleptomaniacs, that judges who share similar prejudices would be emboldened to let their prejudices … rule their decisions." In the Alabama and North Carolina cases, Kendell said, "there was no question that the children’s welfare would be best promoted by staying with the Lesbian or Gay parent."
Stephen Scarborough, staff attorney in Atlanta in the southern regional office of Lambda Legal Defense and Education Fund, which was co-counsel in the North Carolina case, said he too is concerned about the regional implications of the two rulings.
"I don’t suggest that these two decisions constitute some tidal change … that’s going to sweep the whole region," Scarborough said, "but obviously they’re extremely negative developments, not only for the parties involved … but also for the thousands of parents in the region who are dealing with these [custody] problems."
Scarborough said a decision by a high court of one state can be "persuasive" to others.
"The North Carolina court did not cite the Alabama decision," he said, "but it’s very likely they are familiar with it. It’s very likely conservative judges will feel emboldened to do the wrong thing if other courts have recently done the wrong thing."
In North Carolina, the Supreme Court cited evidence that the Gay father, Fred Smith, and his lover of five years, Tim Tipton, "engaged in oral sex approximately once a week" in their bedroom behind closed doors, with the children present elsewhere in the house, and that the father saw nothing wrong with such conduct and would not counsel his children that such conduct was "improper."
The children, the court said, had also seen their father and Tipton in bed together. And the court said the children had seen the two men demonstrate physical affection, including kissing each other "on the lips" as the couple prepared to leave for work. (Smith says he has nothing against showing affection in front of the children, but hasn’t done so.)
"We conclude," the court said, "that activities such as the regular commission of sexual acts in the home by unmarried people, failing … to counsel the children against such conduct … allowing the children to see unmarried persons known by the children to be sexual partners in bed together, keeping admittedly improper sexual material [pictures of drag queens] in the home … support the trial court’s findings of ‘improper influences.’"
The court majority couched its language in terms of "unmarried people," and insisted that it was not asserting that "the mere homosexual status of a parent is sufficient, taken alone, to support denying such parent custody of his or her child or children." And some lawyers said the ruling posed potential custody problems for straight couples.
But the sole dissenter, Justice John Webb, argued that it was because Smith is a "practicing homosexual" that the majority decided to change custody from the father to the boys’ mother, Carol Pulliam.
Webb said the majority recited actions that it considers "distasteful, immoral or even illegal, " but the test, he said, "should be how the action affects the children and not whether we approve of it."
"I believe the evidence shows only that the defendant is a practicing homosexual without showing any harm has been inflicted on the children by this practice," wrote Webb.
Webb noted that the only evidence that the children suffered emotional difficulties was that the older son cried when told his father was Gay and asked his mother to take him from his father’s home. But when questioned in the initial trial, the son said he had no preference whether his father or mother received custody.
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| Kate Kendell of the National Center for Lesbian Rights: Southern courts are sending a "very inhospitable" message. (by Clint Steib) |
"All the evidence showed the children were well-adjusted," Webb said.
Sharon Thompson, who represented North Carolina Gay and Lesbian Attorneys, which was co-counsel with Lambda, called the ruling "a throwback to the ’50s mentality of feeling like the court can determine what’s moral and not moral and make decisions based on that."
Beatrice Dohrn, legal director for Lambda, called the decision "miserable" and said the North Carolina Supreme Court had overturned the state’s previous standard for changing custody from one parent to the other.
"The standard was, you don’t change custody unless there’s some basis to believe that some harm will come to the children where they are now," said Dohrn. "The court said, ‘We reverse that. ... The standard’s going to be you can change custody when you think it’s going to be good for the kids to do so.’"
Dohrn said that although the decision was anti-Gay, the court ‘s effort to appear evenhanded "practically issued an invitation" to all parents to seek a custody change if their ex-spouse is living with another person and they are not married.
"It’s not just that we lost, we took straight people down with us on this one," Dohrn said.
Dohrn said the court had applied a "double standard" to Smith.
"Non-Gay parents are not judged negatively for showing affection in front of their children, or for being honest with them. For any parents, these are healthy examples to model to children."
Smith told the Blade this week that he is "still kind of numb" about the decision.
"It most definitely was anti-Gay," Smith said. "There was nothing they had on me. I was a good parent, my kids were doing well, they were well adjusted. There was no reason except for [being Gay]. They kind of made up a reason, the fact that I wasn’t married.
"It’s a sad day," Smith said, "when a woman can leave her children, leave the state they live in, for her own personal satisfaction, and then … without due reason come back and take the kids when she’s finished having her fun."
Smith and Pulliam were married in 1982. They separated in 1990, when Pulliam went to live in Kansas with a man with whom she was having an affair. Pulliam and Smith, who divorced the year after their separation, agreed that Smith would have physical custody of the children. In 1993, Pulliam married William Pulliam, the man she had been living with.
Smith said that after he and his wife split up, he began to explore "that part of me" that he always felt was there — his homosexuality. He had no idea how to meet Gay people but looked in the phone book one day and found a Gay hotline listed. The hotline told him about a Gay bar in Asheville, N.C., not far from the tiny town of Fletcher where Smith lives and the General Electric factory where he works.
At the bar, he met Tim Tipton, 30, a nurse’s associate who moved in with Smith in 1995. On a trip to North Carolina to drop off the boys following their summer visitation in Kansas, Pulliam saw Tipton was living in Smith’s house and asked Smith if he was Gay.
"I told her yes; I don’t like to lie," Smith said. After Pulliam got back to Kansas, she and her husband demanded custody of the children. When Smith refused, the mother filed her lawsuit, arguing that Smith’s homosexuality and her remarriage warranted a change in custody.
A trial court decision went in favor of Pulliam, and the boys went to live with their mother and her husband in Kansas. Smith, who had been receiving child support from Pulliam, had to take a second job as a Home Depot sales associate to pay the child support he became responsible for. He currently works between 64 and 87 hours weekly.
Smith, represented by Lambda and North Carolina Gay and Lesbian Attorneys, appealed the decision. In October 1996, the state Court of Appeals overturned the trial court’s decision, asserting that there was no evidence that Smith’s changed circumstances were having an adverse effect on the children.
But the appeals court order that custody be returned to the father was stayed pending the mother’s appeal to the state Supreme Court.
Paul Stam, an attorney who filed a friend-of-the-court brief on Pulliam’s side for the North Carolina Family Policy Council, which the Raleigh News and Observer called a Christian Coalition ally, told the newspaper that Smith admitted in court to breaking the state’s "crimes against nature" law barring oral sex.
"If you are a regular bank robber and you keep your guns in the house and tell your kids it’s a good way of life, that’s not good," Stam said. "Raising a child means more than feeding and clothing. It should not include regular commission of criminal acts and telling children it’s fine to do." In this November’s elections, Stam is challenging Court of Appeals Judge K. Edward Keene, who wrote the decision returning custody to Smith.
But the Charlotte Observer, in a critical editorial, said, "Without evidence that the homosexual relationship had caused problems for the boys, it’s difficult to conclude that the court was moved by anything beyond the fact of the homosexuality."
Katharine Bartlett, a professor of law at Duke University, called the decision "terrible" and said it was certainly "very bad news for homosexual parents." As to whether the ruling is also bad news for divorced heterosexual parents who have had sex outside marriage and could face a custody change lawsuit, Bartlett said, "Who knows?"
Copyright © 1998 The Washington Blade Inc. A member of the gay.net community.