Father asks court to void terms of custody

Va. judge told gay man his partner had to leave home if son lived there

April 13, 2005|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

A gay father asked Maryland's second-highest court yesterday to dissolve a court order that he says unconstitutionally forced his partner to leave their home as a condition of keeping custody of his son.

But lawyers for the child's mother contend a Maryland court should not change the order, which was issued by an Alexandria, Va., judge in 2002 when the divorced couple lived there.

"It's had a significant impact on the child to have the man who helped to raise him for half of his life have to leave the family home," Susan Sommer, a lawyer for 44-year-old Karl Ulf Hedberg of Rockville, told the Court of Special Appeals yesterday.

Sommer's group, the New York-based Lambda Legal Defense and Education Fund, is one of two gay-rights organizations representing Hedberg. He is asking the court to declare the terms of the Virginia order unconstitutional or order a Montgomery County judge to hold a hearing on his contention that the current arrangement is harming his son.

His lawyers point to a U.S. Supreme Court ruling from 2003 that erased a Texas anti-sodomy law that is similar to a Virginia law.

The group also is basing its case on Maryland law, which advocates say is more tolerant of gay and unmarried relationships than Virginia courts are.

"This would never have happened in Maryland," said Takoma Park lawyer Susan Silber, part of Hedberg's legal team.

But attorneys for the mother say that is irrelevant.

The case highlights differences between the two states over what constitutes the best interest of the child.

It is not unusual for a Virginia judge to make a single parent forgo having a live-in partner -- heterosexual or homosexual -- as a condition of retaining custody, said Rena M. Lindevaldsen, an attorney with the Florida-based Liberty Counsel, a conservative group that represents the mother. Even so, because there is no record of the Virginia court proceeding, the factors that led to the judge's decision are not known, she said.

In Maryland, a judge has to find specifically that the child would be harmed by the relationship, Silber said.

The appeals court will have to wrestle with unusual issues, said Stephen P. Krohn, an Annapolis lawyer who specializes in divorce and custody matters, because "each state honors judgments of other states."

At the same time, he said, it may view the original ruling as "contrary to Maryland public policy because there probably would have been a different result if the case started here."

Although Hedberg moved to Maryland and the Virginia ruling was entered in Maryland courts, he would need to show a significant change in the child's circumstances to give a Montgomery County judge a reason to reopen the custody order, Krohn said.

"It may be the wrong decision for the right reasons," he said.

According to court records and lawyers, the child lived with both parents until they split up when he was about 4 years old. In an informal custody arrangement, the child lived for about 5 1/2 years with his father and his father's partner, Blaise Delahoussaye, starting in 1996.

When Annica Detthow, the boy's mother, moved to Florida, each parent sought custody. In 2002, the Virginia judge awarded Hedberg primary physical custody -- with the condition that the partner move out of the house the men had bought together.

The men sold the house. In 2003, they moved 26 miles away to Rockville, each renting an apartment. The child was in a one-income household, in an apartment instead of a house and crying because he missed Delahoussaye, Hedberg's lawyers said.

Last year, Hedberg asked the Montgomery County court to allow Delahoussaye to return while Hedberg retained custody. In January, without taking testimony, a Montgomery County judge refused. Hedberg appealed.

Yesterday, Lindevaldsen argued that Hedberg is forum-shopping, which Maryland courts should not sanction.

"He is asking for this court to start all over," she said.

She said she did not see this as gay discrimination, nor is it about the 2003 Supreme Court ruling that decriminalized certain private sex acts between people of the same sex. Rather, she said, Hedberg did not prove that circumstances for his son changed drastically since 2002.

Alexandria lawyer Patrick H. Stiehm, who also represents the mother, said outside court that Detthow objects to Delahoussaye -- the child's godfather -- living with him because of the "role Mr. Delahoussaye placed in the breakup of the marriage" and other reasons.

The three-judge panel peppered attorneys for both sides with questions.

"Can a Maryland court enforce this restriction?" asked Judge Sally D. Adkins.

"Absolutely," Lindevaldsen replied.

Adkins said she thought it was the first time the Court of Special Appeals has been asked to modify the conditions of a custody agreement based on claims stemming from the outcome of a previous court order.

Through a sign-language interpreter, Hedberg, a hearing-impaired archivist at Gallaudet University in Washington, said the case is really about discrimination and his family.

"My main concern is the emotional stability of my son," Hedberg said.

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