Boston. -- Last Tuesday Kay Bottoms won ownership of her 2-year-old grandson in a Virginia courtroom by morally disowning her daughter. On that day, the judge announced her victory by declaring her daughter's defeat. The young mother was legally labeled ''unfit'' and ''immoral.''
In legal annals this custody fight will be a landmark case about gay rights -- or lack of rights -- to their children. Indeed, Sharon Bottoms' crime that made her unfit is that she lives in a lesbian relationship. What she and April Wade do in the privacy of their own home is a felony in their state.
In 1985, the Virginia Supreme Court had ruled that a father's homosexuality alone placed an ''intolerable burden'' on a child. He was denied custody. In this case, Judge Buford Parsons wrote, ''The mother's conduct is illegal . . . her conduct is immoral . . . [it] renders her an unfit parent.'' This time a biological parent didn't lose a custody to the other biological parent, but to a grandparent.
To say that the laws regarding the custody rights of homosexuals are in flux is to use flux as a synonym for chaos. There are about 4 to 6 million homosexual parents of about 6 to 10 million children in the country, most of them children from earlier marriages.
In some states a divorcing homosexual parent routinely loses custody in a dispute with a heterosexual parent. In other states, gays and lesbians can adopt children. Indeed in Fort Worth, Texas, a lesbian just adopted the child that her long-term lover had conceived through donor insemination.
For every decision that finds homosexual parenting unfit and immoral by its very nature there is a ruling like the one in New York that approved a gay adoption saying: ''This court finds a child who has . . . two adults dedicated to his welfare. . . . There is no reason in law, logic or social philosophy to obstruct such a favorable situation.''
In such confusion, I am sure the Virginia case will be appealed. But what intrigues me the most about this story is not just its legal dimension but also its human dimension.
The family in this intergenerational dispute over minors and morals is not without personal problems. The father of the boy is, as people say discreetly, not a factor. Until this custody issue arose, the grandmother, Kay Bottoms, 42, had a live-in boyfriend for 17 years. That was once illegal in some states, is still immoral in some minds. On the witness stand, the daughter, Sharon, 23, said that she left home at 18 because this boyfriend sexually abused her.
When Kay testified that living with lesbians ''is just going to mess him up,'' did this young grandmother forget that there were infinite ways to ''mess'' children up? When she worried out loud that the boy would be confused about men, women, gender, sex, did she forget that confusion comes in many guises?
How confusing will it be, after all, for this small boy to understand why he is allowed only two visits a week by his mother? How confusing to be forbidden from sleeping at her house? How confusing when he discovers inevitably that his grandmother had his mother ruled ''unfit,'' labeled ''immoral?''
I don't believe that being raised in a homosexual family is as easy as it is in books like ''Heather Has Two Mommies.'' Nor should it be grounds for losing custody on the illusory notion that a child must be protected. No court can stop Sharon Bottoms from being homosexual. No court can rule and no grandmother can pretend that Tyler doesn't have a lesbian mother.
Kay Bottoms is not the only grandparent dismayed by a son's or daughter's life, choices, habits, morals, religion, child-rearing ways. She's not the only one who ever wanted to pick up a grandchild and run. Not the only one who had trouble accepting a gay son, a lesbian daughter.
How different this story could have been. At their best, grandparents can provide a buffer, a wider circle of acceptance, more family for grandchildren who go through rough spots and tough times. They can provide support as well for parents, especially young parents who may still need a bit of mothering.
Even in the courtroom last week, there were softer words among the harsh ones. ''I would never deny him his mother,'' said Kay Bottoms, looking at the floor. ''She's a good grandmother,'' said Sharon Bottoms, avoiding her mother's eyes.
The courts specialize in wins and losses. The mother and daughter were in conflict instead of concert. Today in Virginia there is a new test case. There might have been a family.
Ellen Goodman is a syndicated columnist.