Gay parents and the courts

September 29, 1994

There are rarely any winners when a marriage fails, particularly when children are involved. In recent years courts have discarded many of the traditional formulas for deciding such issues as child custody, maintenance and visitation rights. The trend has been to treat men and women more equally -- if not more fairly -- in such matters. At the same time courts have reduced the importance of factors such as infidelity that formerly preordained the outcome of many custody disputes.

But what if one of the partners is gay? Should a parent's sexual orientation influence the court's decision about who is entitled to custody of the children and under what circumstances? That is the issue now before the Court of Special Appeals in the case of North vs. North.

David K. North and his wife Kathryn were married in 1982 and had three daughters over the next decade, now ages 9, 6 and 3. Mr. North became pastor of a Washington church; his wife worked as a legal secretary. But Mr. North was leading a double life, secretly frequenting a gay bath house where he had anonymous sex with other men. In 1991 he discovered he was carrying the virus that causes AIDS. He told his wife, however, that he had contracted the disease from a woman with whom he had had an affair.

The couple separated and Mr. North moved in with a family friend who was also godfather to his youngest child. In June 1992, he admitted to Kathryn that he had lied about having an affair with a woman and that he was gay; he also told her that he had fallen in love with the man he was living with, who was also gay, and that the two wanted to get married. At that point, Ms. North determined to limit her children's contact with their father.

The Norths were divorced in April 1993. At the trial, the judge agreed with Kathryn that David's relationship with his partner posed a danger to his children and thus denied him normal visitation rights. David appealed, and on Tuesday attorneys for both sides presented oral arguments before all 13 judges of the Court of Special Appeals.

The judges must decide whether the mere fact of being gay is enough to judge someone an unfit parent. Gay rights advocates want Maryland to follow Virginia's Court of Appeals, which recently ruled that a child cannot be taken from a mother simply because she is a lesbian. That strikes us as reasonable. We see no reason to restrict the rights solely on the basis of their sexual orientation. But whatever the outcome, this case will affect the lives of gay and lesbian parents -- and their children -- in Maryland for years to come.

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