Mother concludes she's lesbian, leaves conservative religious household—should that affect child custody decision?

|The Volokh Conspiracy |

From In re Marriage of Black, decided Thursday by the Washington Supreme Court:

Rachelle and Charles Black were married for nearly 20 years and have three sons. They raised their children in a conservative Christian church and sent them to private, Christian schools. In 2011, Rachelle told Charles that she is a lesbian.

In the order of dissolution, the trial court designated Charles as the primary residential parent. The final parenting plan also awarded Charles sole decision-making authority regarding the children's education and religious upbringing. But the record shows that the trial court considered Rachelle's sexual orientation as a factor when it fashioned the final parenting plan. Further, improper bias influenced the proceedings. This bias casts doubt on the trial court's entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle's sexual orientation. Accordingly, we reverse….

To guard against discriminatory impulses in custody proceedings, many jurisdictions prohibit consideration of a parent's sexual orientation unless there is an express showing of harm to the children…. Washington courts apply an analogous requirement for "strict impartiality" regarding parents' conflicting religious beliefs….

The record here shows the trial court did not remain neutral when it considered Rachelle's sexual orientation as a factor for determining provisions in the parenting plan. Although the trial court concluded that Charles is the more stable parent for a number of potentially legitimate reasons, including his availability to the children and the parenting duties he performed in the years preceding the dissolution, the record indicates that Rachelle's sexual orientation influenced the trial court's written ruling and final parenting plan. For example, the trial court found that Charles was the more stable parent in part because he is better suited to maintain the children's religious upbringing, which includes certain beliefs about same-sex relationships:

Here, [Charles] is clearly the more stable parent in terms of the ability to provide for the needs of these children, both financially as well as emotionally and in maintaining their religious upbringing. These children have been taught from the Bible since age 4. I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality.

[E]ven though the trial court here did not explicitly suggest that Rachelle's sexual orientation made her an unfit parent, its reasoning is nevertheless clear: the children are allegedly uncomfortable with homosexuality due to their religious upbringing, Charles—a heterosexual who shares those same beliefs—is better suited to maintain that religious upbringing, therefore, he is the more stable parent. [Kelly Theriot Leblanc, the guardian ad litem (GAL) assigned to this case] advocated this same reasoning in her final recommendation and in her testimony, which the trial court relied on and largely adopted in its final ruling. Absent any other evidence, such reasoning unfairly punishes a parent in a custody proceeding on the basis of her sexual orientation.

The trial court also adopted a restriction on Rachelle's conduct that prohibited her from discussing "alternative lifestyles" with her children:

[Rachelle] is ordered to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyle concepts and further that she be prohibited from exposing the children to literature or electronic media; taking them to movies or events; providing them with symbolic clothing or jewelry; or otherwise engaging in conduct that could reasonably be interpreted as being related to those topics unless the discussion, conduct or activity is specifically authorized and approved by Ms. Knight.

These references indicate the trial court based its ruling, at least in part, on Rachelle's sexual orientation. The prohibitions assume that a parent's discussion of sexual orientation or her own life and beliefs would have a negative impact on the children….

In addition to the trial court's written ruling and final parenting plan, the record indicates that improper bias influenced the trial court's decision. For example, Leblanc made several problematic statements suggesting she was biased against Rachelle.

First, Leblanc repeatedly referred to Rachelle's sexual orientation as a "lifestyle choice." This is contrary to our current understanding of sexual orientation. See Obergefell, 135 S. Ct. at 2596 ("Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.").

Second, Leblanc suggested that the controversy surrounding Rachelle's sexual orientation could harm the children by inviting bullying. Other courts have expressly rejected this reasoning in custody disputes. See, e.g. Palmore v. Sidoti, 466 U.S. 429, 433 (1984) ("Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.") [Palmore rejected a similar argument that having a child be raised in a mixed-race family would lead to bullying by peers -EV].

Third, Leblanc recommended an unconstitutional restriction of Rachelle's conduct that prohibited her from discussing religion, homosexuality, and "other alternative lifestyle concepts" with her children. At trial, Rachelle's counsel asked Leblanc if she thought it would be fair to similarly limit Charles from having those same conversations. Leblanc admitted that it would be fair in light of the tension between the teachings at the children's church and Rachelle's sexual orientation. But Leblanc ultimately did not recommend a similar restriction on Charles' conduct despite this testimony.

Finally, Leblanc's opinion that Charles is the more stable parent seems to stem from a belief that Rachelle caused the separation:

[Rachelle] did choose to spend a large majority of her time away from the home over the past three years; did choose to terminate the marriage; and is planning on living with [her partner]. All of those decisions were a matter of choice and all of those choices are inconsistent with teachings and principles that she and [Charles] elected to share with their children. [Rachelle's] choices did disrupt her relationship with the children and given the family's faith and historical belief system, the choices have also created a great deal of controversy and confusion.

But "custody and visitation privileges are not to be used to penalize or reward parents for their conduct." [Citing Washington precedents.]

I think this is analysis is right, just as it is with regard to parents who adopt a new religion that differs from their old. Indeed, I would have liked to see the court even more sharply condemn the restrictions on the mother's speech, which I think independently violate the First Amendment as well (I discuss that more in my Parent-Child Speech and Child Custody Speech Restrictions article).

One thing that I'd quibble with is the focus on the references to Rachelle's lesbianism as a "choice." Imagine the same thing happening in a household where the woman was solidly bisexual, in the sense of finding relations with men and with women to be comparably satisfying (as I understand it many women who have sexual and romantic relationships with women are)—I can't speak to whether Rachelle herself falls into this category, but consider that as a hypothetical.

In that situation, one can reasonably label the decision to move to a relationship with a woman and away from the relationship with a man to be a choice. The ability to be attracted to people of either sex appears not to be choice—but the decision of whom to be with, among those you're attracted to, is a choice (as much as a straight woman's decision about which man to marry is a choice, or a person's decision about which religion to follow is a choice).

Yet it seems to me that this hypothetical bisexual Rachelle should be treated the same way as a purely or predominantly lesbian Rachelle. (I can see the argument that one should sympathize more with someone who finds, even after 20 years of marriage, that she can't get sexual and romantic satisfaction at all with a man, than with someone who could get such satisfaction but finds that she would now prefer a woman; but I think that this is on balance not much of a distinction.) If we are to have a no-discrimination-based-on-same-sex-sexual-conduct rule (and I think it's generally a good rule for the government to have, including in custody cases), that should apply regardless of whether the sexual preference or the conduct that it leads to is a "choice"—just as a no-discrimination-based-on-religious-beliefs-and-teachings rule applies even though we generally view religious beliefs as a choice.

Maybe in some states this hypothetical woman could be properly faulted for being the person who left the marriage (if the states do not follow the Washington rule that "custody and visitation privileges are not to be used to penalize … parents for their conduct" in leaving the marriage), regardless of the sex of her new partner. But she shouldn't be faulted for her new same-sex relationship being a "choice."

In any event, though, that's a fairly minor quibble here; the overall result seems quite right. For a 2004 Colorado case (In re E.L.M.C.) in which a court reversed a restriction on the religious parent criticizing homosexuality to the children, see this post.