Child's visits to gay father back in court Maryland's top judges to hear arguments in county case today

Could affect nongay parents

Ex-wife argues issue of sexual orientation not central to dispute

September 09, 1998|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Maryland's highest court will be asked today to reassess how local judges decide to limit a child's visits with divorced parents and their live-in companions, especially if the parent is gay.

The restrictions in this case were placed on overnight visits with a gay father by an Anne Arundel County judge who later was chastised by the state Commission on Judicial Disabilities for what could be considered anti-gay bias.

Gay rights groups have said the case is significant: Such restrictions hit gay couples harder because they cannot legally marry.

But the lawyer for Kimberly Boswell, the mother in this case, argues that sexual orientation is only a tangential issue and that the question should center on Maryland's vaguely defined "best interest of the child" standard in custody and visitation cases.

And legal experts say that while it is the first visitation case in which the Court of Appeals is being asked to rule specifically about a homosexual father, a ruling also is likely to affect thousands of heterosexual parents.

"If the rules are applied the same, then the courts will come up with reasonable rules. If it affects the majority community adversely, the majority will protect its own community," said Dwight Sullivan, staff attorney for the American Civil Liberties Union.

In 1996, Anne Arundel Circuit Judge Lawrence H. Rushworth barred overnight visits by the two children of Robert G. Boswell of Glen Burnie in the company of Boswell's lover or in the presence of "anyone having homosexual tendencies."

The Court of Special Appeals, Maryland's intermediate court, overturned that decision last year. It ruled that there was no proof that Boswell's relationship harmed the children and that only one child preferred not to sleep over at the home Boswell shares with his partner.

Kimberly Boswell is asking the Court of Appeals to reinstate Rushworth's ban on visits in the presence of her former husband's partner.

For two decades, Maryland courts have held that it is not the parent's relationship with a paramour, but how that relationship affects "the best interests of the child," that is to be taken into consideration in custody and visitation cases. Even a morally offended judge could not rule against visitations.

Cynthia E. Young, the mother's lawyer, said the difference lies in what standard judges should apply to visitation rules: Are the visits in the presence of Boswell's partner in the best interest of the child? Or, as the Court of Special Appeals has ruled, should she have to show the visits threaten to harm the child?

Young argues that asking her client to prove harm discounts remarks her son, now 10, made nearly three years ago. The boy said he would rather not be around his father's partner or sleep there, though he liked that man's dog.

A daughter, nearly three years younger, made no objection.

Showing harm, Young said, is burdensome because it would require proof the child is suffering.

" 'As long as there is no actual harm, I can do what I want, and there is no interest to the court' -- I don't think that is where we want to be. I think that is a scary standard," Young said.

She downplayed the father's homosexuality.

"It's a tangential issue," Young said. "The psychologist testified back at trial that the little boy had witnessed the two men sleeping face to face and had a reaction to this. It could have been a woman and he'd have the same reaction."

If nothing else, she said, an Anne Arundel judge -- not Rushworth, who recused himself after being accused of anti-gay bias -- should question the children again. The youngsters have had every-other-weekend overnight and every Wednesday daytime visits with their father and his partner for the past 15 months.

Robert Boswell's lawyers from Lambda Legal Defense and Education Fund, a gay rights group, argue that the only reason visits would not be in the children's best interest is if they are harmful to the youngsters. Without proof of harm, standard visitation should be the rule.

Beatrice Dohrn, a Lambda fund attorney, said it is unreasonable for courts to order a noncustodial parent to hide his or her companion from the children.

"So what does that mean? That the kid should be introduced to the partner the day after the marriage?" Dohrn said.

Instead, she argues, it should be up to the parent and partner, with the child, to "determine what the best way is to have a relationship between father and son."

Anything else would be a "tremendous regression" for gay and straight parents because it would allow a court to take into account that the parent has a nonmarital sexual relationship. A judge finding that immoral could end visitation.

"The impact of reversing what the law has been so far will not fall only on gay people," Dohrn warned.

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