Children can visit gay father overnight Judge had objected to lover's presence

October 30, 1997|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The Court of Special Appeals overturned yesterday an Anne Arundel County judge's ruling that barred two youngsters from visiting their gay father overnight and in the company of his lover.

Gay rights groups hailed the ruling as a leap forward because it applies standards for child visitation conditions to gay parents that have been in effect for heterosexuals for nearly two decades.

"What this case tells every Circuit Court judge in the state is that the law that they have been applying to heterosexual unmarried couples must be applied to gay and lesbian couples too," said Nancy Polikoff, an American University Law School professor who was one of three lawyers for Robert G. Boswell, the father.

That "is all we asked for," said Beatrice Dohrn, legal director of the Lambda Legal Defense and Education Fund, which supplied much of the legal firepower for the appeal. "Apply the law to lesbian and gay parents like you do to anyone else."

The decision restates a 1994 opinion from Maryland's intermediate appellate court that says judges can consider parental adultery and sexual orientation in making visitation orders only if there is proof that the children would be harmed. It is similar to custody and visitation standards in most states.

The three-judge panel cautioned that "this is not a case about gay and lesbian rights," but about the welfare of children. The evidence "must support a factual determination" that children would be harmed before a parent's visitation rights could be so restricted, the court ruled.

Judge Lawrence H. Rushworth heard no evidence about that, the panel said, nor did the children's mother seek those limitations.

"The court has got to give some sort of a reason why visitation should be restricted," said Andrea Colender, an Annapolis lawyer on Boswell's legal team.

Rushworth ordered the limitation after hearing testimony from the children's psychologist and a social worker. But neither voiced concern about overnight weekend visits.

Cynthia E. Young, the lawyer for the children's mother, Kimberly Boswell, said that she had no problem with striking down the condition that forbade Robert Boswell to visit the children around "anyone having homosexual tendencies or such persuasions" because it put an unreasonable burden on him.

She said her client has not decided whether to ask the Court of Appeals to review the decision or how to proceed in Anne Arundel County Circuit Court, where another judge must amend Rushworth's order.

The more radical Lesbian Avengers group viewed the decision as a "dressing down" of Rushworth and supporting its allegation that he is homophobic, said Cheryl Cort of the Baltimore chapter.

The chapter filed a complaint against Rushworth in August with the Maryland Commission on Judicial Disabilities. The commission's probes are confidential, and Cort said the Avengers has not heard whether it was concluded.

Rushworth could not be reached yesterday, but has said he feels children are best served visiting noncustodial parents without third parties around. He recused himself from the case in August 1996.

Boswell, of Glen Burnie, was allowed to visit his children, a 9-year-old boy and 6-year-old girl, every other weekend and every Wednesday by Judge James C. Cawood Jr. He wants to return to that arrangement, his lawyers said.

They described visits with his children as difficult under Rushworth's April 1996 divorce decree, because Boswell could not have the children at home without sending his companion away or had to meet his children elsewhere.

Pub Date: 10/30/97

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