Gay Dad Wins Big Victory to Continue Unrestricted Visits with His Kids

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Maryland Court of Appeals agrees with Lambda that sexual orientation should not matter
December 12, 1998

(NEW YORK, December 18, 1998) -- Maryland's highest court Friday made an important ruling that the best interest of children with a lesbian or gay parent requires that the children have unrestricted contact with their gay parent unless evidence establishes that such contact causes demonstrable harm, said Lambda Legal Defense and Education Fund.

The state Court of Appeals decision closely tracked Lambda's arguments on behalf of a gay Anne Arendal, Maryland, father, Robert Glenn Boswell, whose visits with his 10- and 7-year old son and daughter would have been severely limited by a 1996 trial court order. The new opinion affirmed an appellate ruling against the restrictions and rejected the mother's arguments that the best-interest standard permitted the trial court to impose restrictions on the father even in the absence of proof that they were needed.

Lambda Legal Director Beatrice Dohrn said, "This decision that judges may not rule based on personal bias or stereotypical belief is tremendously important to lesbian and gay parents in Maryland. In the national context, this ruling strengthens a trend among many other states that children's best interests require that courts not use anti-gay bias or stereotypes in making visitation or custody judgments."

Added Nancy Polikoff of American University, Lambda's cooperating attorney in the case, "This decision recognizes that a child might feel uncomfortable around a gay parent and his or her partner, and also that children of lesbian and gay parents might face a difficult adjustment period. But the Court accepts those as facts of life, not reasons to restrict the parent-child relationship."

In a 40-page decision, the high court said, "We make no distinctions as to the sexual preference of the non-custodial parent whose visitation is being challenged. The only relevance that a parent's sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children's emotional and/or physical well-being."

The court also noted, "Thus, while this Court sympathizes with the difficult adjustment these children may be having with not only their parent's divorce, but also with their father's homosexual lifestyle, it has not been shown to be in [the children's] best interest to curtail visitation so as to restrict [the father's live-in partner] from their lives. ...the reality is that their father is a homosexual who shares his home and life with [his partner]...."

The case was on appeal from the state Court of Special Appeals, which in 1997 vacated a 1996 trial court ruling prohibiting Boswell from having overnight visits with his children, and from visiting his children while with his partner, anyone with whom he was living in a non-marital relationship, or "anyone having homosexual tendencies." The children are in the physical custody of their mother, Kimberly Boswell.

The Court of Special Appeals found that the cruel restrictions, which neither the mother, the social worker assigned to the case, nor the children's psychologist had requested, were an abuse of court discretion.

Lambda and Polikoff represent Boswell, with assistance from local attorney Andrea Colender.

Founded in 1973, Lambda is the nation's oldest and largest legal organization serving lesbians, gay men, and people with HIV and AIDS.

(Boswell v. Boswell, No. 1466)

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Contact: Peg Byron 212-809-8585, 888-987-1984 pager; Nancy Polikoff 202-274-4232


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