Gay father argues judge's visitation ruling was biased Children can't visit in companion's presence

September 07, 1997|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Judges should extend to homosexual parents the same protections they do to heterosexual parents when setting conditions for children to visit divorced parents, lawyers for a gay Glen Burnie man are arguing.

They are asking the Court of Special Appeals to overturn what they called a biased divorce decree in which an Anne Arundel County judge forbade Robert G. Boswell to visit his two children in the company of his partner or "anyone having homosexual tendencies or such persuasions."

Anne Arundel County Circuit Judge Lawrence H. Rushworth issued the ruling in April 1996 that also barred Boswell's children from overnight stays with him and visits "with anyone that the father may be living with in a nonmarital relationship."

No similar restrictions were placed on his former wife, Kimberly Boswell of Glen Burnie, with whom the youngsters live.

"The restrictions were not supported by any evidence," said Nancy Polikoff, an American University law school professor and one of three attorneys for the father.

Rushworth's ruling has drawn criticism from gay rights groups.

At Robert Boswell's request, the Lambda Legal Defense and Education Fund Inc., an advocacy group for homosexuals, is supplying legal representation for his appeal.

The more radical Lesbian Avengers organization filed a complaint last month against Rushworth with the Maryland Commission on Judicial Disabilities, alleging that the judge violated the state's Code of Judicial Conduct by showing bias against homosexual parents. Investigations by the commission are private.

Neither Lambda nor Robert Boswell signed the complaint. Cheryl Cort of Lesbian Avengers said Boswell's lawyers asked her organization to withdraw it.

Rushworth showed "appalling homophobia," Cort said, and used "incredibly offensive language" in the ruling.

The complaint, she said, is "to put on notice all judges that their bias against gay people needs to stay out of the courtroom."

Rushworth could not be reached. He recused himself from the case last year after the appeal was noted and after being accused of prejudice by Annapolis lawyer Andrea Colender, who also represents Robert Boswell.

Court records show no reason for Rushworth's decision to recuse himself, however.

Cynthia E. Young, Kimberly Boswell's lawyer, said the case is "only tangentially" about gay rights and more about the children.

Rushworth showed no prejudice, and was trying to foster a bond between father and children, she said.

Young cited trial testimony, some from experts, that the Boswells' son, now 9, said he would rather not be around his father's companion, and did not want to sleep at his father's home.

"The boy is disturbed by the relationship," Young said.

But the child liked the companion's dog and did not want his father's companion to move away.

The reason for restrictions on visitation are to prevent harm to a child, she said. And a parent's new intimate relationship is not a reason to restrict visitation, state courts have ruled.

But Polikoff, the father's lawyer, said no harm was shown, the children's mother did not seek the limitations, and there was no extended discussion of homosexuality as a visitation issue.

The children had stayed overnight with their father every other weekend for more than a year.

That leaves a wide berth for an intermediate appellate court to rule.

A broad interpretation could extend the same considerations to gay parents as to heterosexual parents in similar custody and visitation circumstances, said Beatrice Dohrn, legal director of the Lambda fund.

Other state courts have come down on both sides.

But the court could rule narrowly and order the county court to take extended testimony on visitation.

"If the court feels there is a dearth of information on this visitation, let's scrutinize this visitation," Young said.

"I'd welcome that."

Pub Date: 9/07/97

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