Homosexuality, Illegal Alien Status, Church Attendance, and Child Custody in Mississippi

An interesting Mississippi Supreme Court opinion.

|The Volokh Conspiracy |

From Garner v. Garner, decided last week by the Mississippi Supreme Court:

Andrew was born in August 2009 to April Garner. {Andrew's natural father's parental rights were terminated.} On November 8, 2010, when Andrew was fifteen months old, April voluntarily relinquished physical custody of Andrew to her brother Jason. At that time, Jason was dating and living with David Smith. Jason and David later married on September 20, 2012….

On December 20, 2013, by agreed order, April regained legal and physical custody of Andrew. The order stated that the parties "recognize[d] that in order for [Andrew] to successfully handle his separation anxiety [with which he had been diagnosed] he must maintain a relationship with David and David must have a secure and regular place in the child's life." The agreed order provided David extensive visitation, which April acknowledged was "similar to what a biological parent would get."

At some point in 2013, April began a relationship with Pablo Garcia. Their daughter Allison was born on November 5, 2014.

In November 2014, April withheld visitation with Andrew from David. As a result, David moved to enforce the December 20, 2013 agreed order. In March 2015, the chancellor upheld the agreed order and visitation continued between David and Andrew.

In September 2015, Jason died from complications of HIV. {It is undisputed that David is HIV negative.}

On September 19, 2016, David filed an "amended petition for emergency custody and to cite [April] for contempt." In the petition, David alleged that based on various events and admissions, April was "unfit to care for [Andrew]." He further alleged that April unilaterally had discontinued Andrew's counseling sessions with [a clinical psychologist], in violation of the December 20, 2013 agreed order. April's mother and stepfather, Judi Garner and Ron Fox, filed a similar petition for custody and joined David's petition. Shortly thereafter, on September 21, 2016, April and Pablo were married.

The chancellor issued a temporary restraining order on September 22, 2016, and granted temporary custody of Andrew to David. April later filed an answer to David, Judi, and Ron's petitions. She further moved for a modification of the December 20, 2013 agreed order and sought to terminate David's visitation rights with Andrew.

Based on the allegations asserted in David's amended petition, the chancellor appointed a guardian ad litem (GAL) on September 29, 2016, to investigate the allegations and to make a recommendation to the court. The chancellor also ordered the parties to submit to a drug test.

Based on the GAL's recommendation, the chancellor entered a temporary order that allowed alternate weekly visitation between April and David …. On October 13, 2016, April tested positive for cocaine. The GAL later moved for supervision of April's visitation based on her failed drug test and the GAL's belief that April was coaching Andrew. April's visitation with Andrew was supervised until February 3, 2017.

In the fall of 2017, April reported or assisted in reporting two separate allegations of child sexual abuse against David …. Both reports involved similar allegations of bathing, specifically, that David inappropriately touched Andrew while giving him a bath. As a result, Andrew was placed in foster care pending further investigation of the abuse allegations.

Both allegations were separately investigated by the Mississippi Department of Child Protection Services (CPS). The November investigation included a forensic interview with Andrew. At the completion of the investigations, both reports of sexual abuse were found to be unsubstantiated. Specifically, CPS concluded that "there were no inappropriate actions on behalf of David."

A trial in this matter was held on February 22 and 23, 2018…. [The chancellor] found that April had entered into a course of conduct since the entry of the December 20, 2013 agreed order that constituted a material change in circumstances adverse to Andrew's best interests and that made April "mentally and morally" unfit to have custody of Andrew. Following an analysis [of the various factors Mississippi law provides for determining a child's best interests,] the chancellor awarded "full care, custody[,] and control" of Andrew to David and visitation to April….

Moral Fitness of the Parents

The chancellor determined this factor favored neither April nor David. April argues this factor should have favored her over David, since she is a "devout Christian" who "no longer drinks alcohol, takes drugs, or smokes," and David is an "open homosexual" who "does not attend church."

Although testimony was adduced that April regularly attends church, further testimony showed that April has a pattern of recovery and then relapse due to her drug and alcohol problems. April herself acknowledged at trial that it had only been a few months since she last consumed alcohol.

Additionally, David's sexuality is not, and has never been, a secret. April knew that David was in a same-sex relationship when she voluntarily relinquished custody of Andrew to her brother Jason who was dating David. Jason and David later married.

If April had any concerns about David's moral fitness due to his sexuality, she should have addressed those concerns in 2010, before she voluntarily relinquished custody of Andrew, or in 2013, before she agreed to extensive visitation between Andrew and David. We simply do not accept April's attempt now to use against David something that was previously known to her to which she consented. Also, although David does not attend church, he testified that he is a Christian.

The dissent disagrees with the chancellor's findings that David's homosexual lifestyle called his moral fitness into question. The dissent relies on Obergefell v. Hodges (2015), which legalized same-sex marriage. However, the record shows that although David is in a same-sex relationship, he is not married. Moreover, on appeal, … David asserts that although he does not agree with the chancellor's determination of this factor, he "cannot assign error to the chancellor's analysis of this factor as there is evidence to support this finding on the record." David concludes that "the chancellor did not commit manifest error in examining this factor."

Even assuming the chancellor did err in his examination of this factor, any such error was harmless …, since the chancellor awarded custody of Andrew to David….

Home, School, and Community Record of the Child

[T]he chancellor noted that April has "engage[d] the child in religious training, an element that improve[d] her standing …." [but not enough to overcome April's other problems -EV]….

Stability of the Home Environment

The chancellor found this factor favored David. Specifically, the chancellor found as follows: "[April] has entered into relationship with a man who is illegal and prone to violence toward her. She has only recently married him though they lived together for a number of years, despite this propensity.

"She has caused the child to be removed from school on three occasions since his enrollment in kindergarten. As stated earlier, though she confesses to be able to work, she has chosen to not do so preferring again to live with little income at the expense of the taxpayers of the State of Mississippi by drawing food stamps and insuring the health of the child through Mississippi's CHIPS program. These elements are not supportive of the stability of the home environment in her favor.

"Conversely, [David] has resided in his home alone since the death of his husband prior to the last order. Though he is involved in a relationship with another man that is intimate in nature, his partner does not reside with him and there is no evidence that [David] has allowed this element of their relationship to be observed by the child. This fact has already been assessed against [David] with reference to the moral fitness factor at any rate. He is stable in his employment and earns a substantial wage with nothing to indicate that his employment is in jeopardy in any manner."

April argues this factor "should have favored [her]," since she "owns her own home" and "regularly attends church and there have been no issues in her home since she and Pablo married." While the record confirms that April owns her home [which had been given to her by her father], April ignores the fact that she voluntarily shares that home with Pablo, who she knows is working without authorization from the federal government, has violent tendencies, and uses a questionable discipline method for Andrew. Moreover, despite April's assertion, the record shows that she and Pablo have had domestic-violence issues in their home since their marriage. Regarding April's church attendance, the chancellor previously noted and weighed that fact in April's favor.

The dissent "fail[s] to see how a person's status as to citizenship is relevant to a determination of unfitness as a parent." But this case is not about Pablo's fitness as a parent.

The dissent "disagree[s] … that Pablo's citizenship status is a relevant factor in determining April's parental fitness." But it is not Pablo's citizenship status that is at issue. Instead, the issue is April's continued relationship with an individual who she knows is committing an illegal act. April acknowledges that Pablo has lived and worked in this country illegally since 2013. April admits that because Pablo does not have to pay income tax, neither she nor Pablo are in a hurry for him to become a legal citizen. April's continued relationship with Pablo is a relevant factor in her parental fitness. Indeed, it speaks to her overall poor judgment. Thus, the chancellor's consideration of April's relationship with Pablo was not an abuse of discretion.

{We emphasize that the illegal act itself, i.e., illegal immigration, is not the issue. The fact that April continues to reside with an individual who she knows is committing an illegal act is problematic, regardless of the nature of that illegal act.}

Other Factors Relevant to the Parent-Child Relationship

In his analysis of this factor, the chancellor considered the GAL's final report, in which the GAL recommended that David be awarded primary custody of Andrew. The chancellor noted that the GAL "fully investigated the issue of custody as well as the allegations of sexual abuse raised against [David]." The chancellor reviewed the GAL's report and found "no reason to disagree with his recommendations."

The GAL testified that after speaking with Pablo and April, he determined that Pablo had "zero credibility" and that April had "a very serious credibility issue." The GAL explained that April "[d]enied everything" and stated that she "didn't even know why anybody was in court." April further denied any violence between her and Pablo, despite various police reports. Moreover, April denied any drug or alcohol problem, but admitted to "social drinking." She further admitted to asking David to get her some Xanax. The GAL also testified that he believed April was coaching Andrew and explained to the chancellor the basis for his concerns.

The GAL noted April's "extensive criminal history for prostitution, domestic violence, both as the aggressor and as the victim, [and] possession of controlled substances." Although this criminal history predated Andrew's birth, the GAL found the prior history "concerning," considering the current allegations….

On the basis of this (coupled with the deference generally shown by reviewing courts to chancellor's decisions), the high court therefore upheld the chancellor's decision to give custody to David. Justice King concurred as to the custody decision, but wrote "to express [his] concern regarding certain portions of the majority's opinion":

The majority lists the chancellor's findings of unfitness, including "'[c]avorting with a known illegal immigrant with full knowledge of his status….'" Later, in its analysis of the stability of the home environment, the majority again uses Pablo Garcia's citizenship status as a factor against April, stating, "April ignores the fact that she voluntarily shares that home with Pablo, who she knows is working without authorization from the federal government….." I agree with the majority's statement that "this case is not about Pablo's fitness as a parent." However, the majority continues to use Pablo's citizenship status as a negative factor against April's fitness as a parent. I fail to see how a person's citizenship status is relevant to a determination of unfitness as a parent.

{The majority argues that the issue does not concern Pablo's citizenship but does concern "April's continued relationship with an individual who she knows committing an illegal act." However, the majority continues to discuss the status of Pablo's citizenship. According to the majority's logic, April could be found to have poor parental fitness if she was engaged in a relationship with a person who had unpaid parking tickets or who illegally downloads movies and television shows. Thus, I continue to disagree with the majority's finding that Pablo's citizenship status negatively affects on April's parental fitness.}

Thus, I disagree with the majority's contention that Pablo's citizenship status is a relevant factor in determining April's parental fitness. However, I agree with the majority's determination that April's continued relationship with a person who exhibits violent tendencies is relevant and is detrimental to Andrew's best interests.

In addition, the chancellor found that David's "homosexual lifestyle" called his moral fitness into question. The chancellor relied on a case decided more than twenty years ago, stating that "[t]he Mississippi Supreme Court has clearly held that the chancellor can consider a homosexual lifestyle as a factor relevant in this custody determination of the child…" (citing Weigand v. Houghton (Miss. 1999)). Yet the chancellor in Weigand had stated, "[t]he fact that the Plaintiff and his 'life partner' engage in sexual activity which include both oral or anal intercourse is repugnant to this Court as constituting a felony act under the laws of this state." The Weigand chancellor quoted Mississippi Code Section 97-29-59: "[e]very person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of not more than ten years."

The court's view of homosexuality is antiquated and clearly wrong. In Obergefell v. Hodges (2015), the United States Supreme Court stated that "[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity." The Supreme Court then held that same-sex couples have the right to marry. Therefore, the question of homosexual relationships, either married or unmarried, should have no greater detrimental weight than that of heterosexual relationships, married or unmarried.

Instead, the majority finds that "David's sexuality is not, and has never been, a secret." I would find that the chancellor erred by concluding that David's sexuality negatively impacted his moral fitness and would find that Weigand should be overruled. As Justice McRae stated in his dissent [in Weigand], "[t]he morality of homosexuality, however, should not be at issue before this Court or the lower court." Accordingly, I would hold that, due to April's drug and alcohol problems, this factor favors David….

The dissent did not express similar concerns about the chancellor's counting April's church attendance as a factor in her favor.


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  1. since she is a “devout Christian” who “no longer drinks alcohol, takes drugs, or smokes,”

    Right after “drunk racist uncle” – “devout Christian” is next in line of people who I make sure my kids stay as far away from as possible.

    1. Liberals are always so nice and never bigots.

      1. Well, the issue of her religious beliefs and church attendance should not factor into the decision at all IMO. There is no particular reason to think that a “devout Christian” as she describes herself is morally more fit than anyone else to care for a child.

        It’s not too much to say that a court that favors one parent in a custody dispute over another for that reason is violating the First Amendment.

  2. It’s interesting to me that a sitting Justice thinks unlawful entry (a misdemeanor or felony) is akin to a having unpaid parking tickets (gets you thrown in jail) or illegally downloading movies (a felony with up to five years), yet it’s not a factor in determining whether a parent who lives with a violator is fit. Now her husband’s violations are not hers, but the people determining fitness are supposed to look at who you associate with and people who don’t pay their tickets, download movies or immigrate unlawfully are all bad in one way or another.

    He’s right about the fact that David’s homosexuality shouldn’t even come up in our day and age.

    1. You don’t measure the seriousness of an act by what prison time it carries. There are a lot of drug offenses that carry longer prison time that Felicity Huffman got, yet I would argue that Huffman’s actions were much worse than those of a low level cocaine possessor.

      Unlawful entry is simply not a very serious offense. There’s no intent to harm anyone, it’s usually done for laudable reasons (to make a better life for oneself, to send money back to one’s family, etc.), and it doesn’t do very much harm at all to other people and is often, in fact, a net benefit by providing needed labor.

      Indeed, one of the huge problems with restrictionist rhetoric on immigration is to desire to label undocumented immigrants as if they are hardened criminals simply because they crossed a border for, as I said, usually laudable reasons. There are legitimate arguments for stricter or looser limits on the number of people who can immigrate, but anyone who pretends these people are horrible criminals is a malicious liar.

      So no, I don’t think “cavorting with an illegal immigrant” should count for much here, nor do I think “being a homosexual” should.

      1. As far as I can tell from the article, Pablo’s illegal status is being held against April under the “Stability of Home” category – since he could be deported at any time.

        That seems to me to be a valid argument.

        1. Unless they actually said that somewhere, and it just didn’t make excerpt, I think you’re being overly generous in your guess that the judges expected folks to intuit that argument.

          Or to put it another way… judges should state their argument, not imply it.

          1. It’s hard to tell, but the fact of Pablo’s illegal status was mentioned under the section header “Stability of the Home” and followed by this statement:

            These elements are not supportive of the stability of the home environment in her favor.

            It did not specifically mention Pablo’s possibly of being deported however – that was my guess about how his status impacted “stability”. It may be that the chancellor had other reasons in mind. However, I couldn’t find the chancellor’s report available, or linked in the linked report, so I’m out of luck there.

        2. I’d agree that would be a very valid argument. It does not appear to be the one the majority is making however.

          1. Perhaps they didn’t think it needed saying or were attempting not to draw too much attention to Pablo. Seems Pablo had other more serious problems, like domestic violence. If Pablo were arrested fro domestic violence that may trigger someone to pay attention to his status.

    2. Unlawful entry may be a felony.

      Unpaid parking tickets may not be a felony (depending on a number of factors). Illegally downloading movies may not be a felony (depending on factors).

      The fact that David is involved in a sexual relationship and not married – while April is married and in a stable relationship – is relevant (as is her history of drug use and domestic violence in the relationship).

  3. I hope this child overcomes the undeserved disadvantages inflicted on her by the described adults (and by Mississippi).

    1. The first half of your sentence is exactly what I thought reading these facts. This poor kid. I just hope there can somehow be a good outcome for her.

      1. I hope (and believe) our society will continue to provide (and improve) a lifeline for children who wish to overcome disadvantage. School-related programs (including school lunches), a chance to move to a good environment for education and opportunity after high school, health care, college loans, work-study programs, libraries, vocational training . . . there are proven ways to give afflicted children a chance.

        It is never the eight-year-old’s fault that the parents (or other relevant adults) are losers or that the hometown is desolate.

  4. “a sitting Justice thinks unlawful entry is akin to a having unpaid parking tickets or illegally downloading movies”

    Of more concern is the admission of failure to pay income taxes. As to stability, Pablo’s potential for unexpected departure seems an issue.

  5. So on one hand, we have a mother with an extensive record of petty criminal offenses, drug and alcohol abuse, domestic violence, and a host of other things.

    And this almost came out to equal ’cause the other guy is gay?

    They got to the right conclusion, but why does the decision read like it was a close one?

    1. On the one hand, you have the biological mother. On the other hand, you have a non-biologically related uncle. Honestly I’m surprised it came out the way it did (except the mom stopped taking the kid to the court-appointed counselor without permission).

  6. “I’m a drug-addicted, spousal abusing, whore. But I’m also a devout Christian.”
    Perhaps not the most compelling argument for regaining custody of one’s child.
    Pro Tip: Telling a court, “We’re not trying to make my husband legal. He’s screwing taxpayers right now by using his illegal status to avoid paying income taxes. And if he were to become legal, he’d have to start paying those income taxes.” . . . again, not a super-effective way of getting a court on your side.
    This is a real case. But really, it reads like a caricature. Pick about 5-10 really awful qualities in a human being–and give them all to one party. Her brother sounds like a saint. I hope his stability will offset her, um, lack thereof. If not; God help this child.

    1. “ ‘I’m a drug-addicted, spousal abusing, whore. But I’m also a devout Christian.’

      “Perhaps not the most compelling argument for regaining custody of one’s child.”

      In Mississippi?

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