By L.A. Williams, Correspondent
Christian Action League of North Carolina
A May 6 ruling by the N.C. Court of Appeals that gave a lesbian woman joint legal custody of a child to whom she was neither biologically nor legally related has created more questions than answers, not the least of which is how can judges grant parental rights to homosexuals who cannot legally adopt as couples under North Carolina law?
“This is the first time an appeals court in North Carolina has ruled on the issue of custodial rights of homosexual partners,” said Tami Fitzgerald, attorney for the N.C. Family Policy Council in the organization’s special report on the issue. “Even though homosexuals are not permitted to marry … in North Carolina, they are still having children. When these couples separate, it creates a messy situation to determine who has custodial rights. Unfortunately, the children are the ones who ultimately suffer the most.”
The case — Mason v. Dwinnell — grew out of a domestic dispute between two lesbians who had an eight-year relationship. Dwinnell had been artificially inseminated with sperm from an anonymous donor and had a son which both she and Mason cared for. When he was 3 years old, they had established a Parenting Agreement declaring that Mason was a “de facto” parent and that all major decisions about the boy would be made together. After the women split up, a custody dispute landed them in court and led to what may become a precedent setting case.
“What this may be is a road map for homosexuals on how to create a legal right for a pseudo parent,” said Fitzgerald.
The Court of Appeals based its ruling on the fact that Dwinnell had voluntarily given Mason her parental rights and could not then change her mind and “assert those rights in order to unilaterally alter the relationship between her child and the person whom she transformed into a parent.”
On the same day in a similar case, the Court of Appeals denied visitation and custodial rights to a lesbian, Sue Ellen Estroff, who had been living with the mother of twin girls, ruling that the girls’ biological mother, Srobona Tublu Chatterjee, had not engaged in “conduct inconsistent with her constitutionally-protected status (as a parent).”
The women had lived together for five and a half years, during which Chatterjee became pregnant by a sperm donor and had twins. By the time they were 18 months old, the couple was separated and before their fourth birthdays the women were battling in court over custody and visitation issues. Despite their relationship and Estroff’s “unique and special role” in the lives of the children, the court found that there was never an agreement between the women that Estroff was a parent, custodian or legal guardian.
The unanimous rulings, though different, are both troubling and point to the problems created when homosexuals bring innocent children into the complexities of an aberrant lifestyle chosen by adults.
Judge Martha Geer who penned the opinions denied that a new legal precedent was being created or that the cases were affected by the fact that they involved same-sex relationships. Geer wrote that “The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties. What is relevant, however, is the method by which the third party gained authority to do so.”
But that method, in the Dwinnell case, was in part a parental agreement that is one of a growing number of ways that homosexual couples are finding to, in effect, circumvent laws that define marriage as between one man and one woman.
“This absolutely could weaken marriage in North Carolina, if homosexuals have the right to create this pseudo right to parenthood as if they are a married couple,” said Fitzgerald, who is examining the rulings’ legal ramifications and admits the problem is far from simple.
“This just shows that when you go against God’s plan for marriage and family, you create all kinds of nuances that make it difficult for children,” she said.
Custody battles are already complex with “natural” parents’ rights regarding the “care, custody, and management of their children,” based on the 14th Amendment and ensuing case law often coming into conflict with state statutes that call for rulings to be made in the “best interest of the child.”
Add homosexuality to the mix and children wind up in a no-win situation.
Despite studies that homosexual activists have used to push the idea that children fare equally well in lesbian and gay households as those raised by heterosexual couples, the truth is that a full third of homosexuals’ children become homosexual and children of transsexuals are also more apt to become homosexual or transsexual. Beyond the gender confusion is the fact that most homosexual relationships do not last long enough to offer stability needed in child-rearing. A study of homosexual men in the Netherlands, the first country to legalize same-sex marriage published in 2003 showed that the average length of “steady partnerships” was not more than two years. Plus, homosexual behavior is directly associated with higher rates of promiscuity, physical disease, mental illness, substance abuse, child sex abuse and domestic violence — none of which make for pleasant childhoods.
“You could argue that it is not in the best interest of a child to live in a homosexual home or to be scurried back and forth between two homosexual households,” Fitzgerald said.
Unfortunately, these two cases in North Carolina are among a variety of homosexual custody battles across the nation — some between gay ex-partners, others involving a mom and dad, one of which has turned to a homosexual lifestyle, or cases where a biological mom has rejected lesbianism but is being pushed to allow her child visitation with her former female lover.
That’s the case in Virginia where Lisa Miller is fighting to keep her 5-year-old daughter from her former lesbian lover. Miller and Janet Jenkins had legalized their relationship in Vermont in 2000 after which Miller became pregnant through artificial insemination. When Miller became a Christian, she renounced homosexuality, ended the relationship and moved to Virginia. Both Vermont and Virginia courts have ruled in the case with arguments before the Virginia Supreme Court coming last month and a ruling expected in June.
“We’re asking for people to join us in praying that the Virginia Supreme Court will protect little Isabella, her mother Lisa, and the bedrock institutions of legitimate marriage and family,” Janet Robey, Concerned Women for America’s Virginia State Director wrote in a press release.
Nearby, Liberty Counsel has been arguing a case in the Maryland Court of Appeals involving a woman whose husband left her to pursue a relationship with a man. To circumvent a Virginia custody order that specified that he not live with his partner, the father moved 26 miles away into Maryland and then asked the courts there to remove the restriction. When the court refused, he appealed with help from the National Center for Lesbian Rights, which is pushing to invalidate custody or visitation restrictions that protect children from situations in which parents are living with unmarried partners.
“This case shows how radical groups seek to eradicate the moral and common sense foundations of our laws,” wrote Liberty Counsel founder Mathew Staver on the organization’s Web site. “Courts have the right to protect children in custody disputes from being thrust into an environment where one parent is cohabiting with an unmarried partner. Revolving bedroom doors or untethered parental relationships with the same or opposite sex are not in the best interest of children.”
Staver also commented on the Miller case.
“The clash between Vermont and Virginia illustrates the need for protection, so that one state is not forced to accept same-sex unions from another state. This case will soon return to the High Court,” he said. “Same-sex advocates are using children to further their agenda. The agenda is self-centered. That is sad, because children are not political fodder.”