Bias Based on Sexual Orientation or Religion in a Parenting Plan is Unacceptable and Invalidates the Parenting Plan

Short Overview

The Washington State Supreme Court held that when a parenting plan includes restrictions in any part of the parenting plan based on sexual orientation the entire order is invalidated because

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.

In some ways, this was already the rule in Washington, but this decision makes it abundantly clear that it is improper to even try to bring up sexual orientation as a factor in a residential schedule, even if the family practiced a religion that viewed homosexuality as sinful.

Case Details

In re Marriage of Black, Docket No. 92994-7; Opinion Author – Justice Fairhurst, Unanimous Opinion with a concurrence authored by Justice Wiggins and joined by Justice Stephens; Attorney for Petitioners – Amanda J. Beane, Kelly F. Moser, Julie Wilson-McNerney all of Perkins Coie, and David Ward of Legal Voice; Attorneys for Respondent – Kenneth Wendell Masters and Shelby R. Frost Lemmel of Masters Law Group PLLC

Legal Voice was one of the leading advocacy groups in this case. Their discussion of this ruling can be found here.

Because of the issues involved in this case, there were numerous amicus (friend of the court) briefs. You can find the list of the attorneys for the organizations providing amicus briefing (ACLU-Wa and National, NCLR, Fred T. Korematsu Center for Law & Equality, SU Law Professor, QLaw, GLAD). Full disclosure, I provided some assistance on the ACLU Amicus brief.

Basic Facts

Couple marries young (wife 19, husband 21). They were religious and involved in the church. They had three children and the mother wrapped around her life around the children, giving up her work in her family’s business to be able to focus on her family. The father worked in her family’s business and provided the financial support. Like so many divorcing families, it is clear that both parents loved their children.

Like many people, later in life the mother realized that she was not straight. As much as she loved her family, she could no longer hide this important part of her identity. She told her husband. They continued to reside together, agreeing that the mother would explore her sexual orientation.

The mother was committed to making her children come first. Based on her upbringing and belief that having a stay-at-home parent was important for children, she stayed in the family home, with the father, attempting to disrupt the children’s lives as little as possible, only moving out when the trial court ordered the family home would go to the father and the mother had to move out. The court made the father the primary custodian and said he got to make all the decision about the children (something typically reserved for high conflict cases, particularly instances with domestic violence). In addition to providing limited residential time with the mother and allowing the father to make all major decisions, the trial court limited the mother’s ability to talk about her sexual orientation or introduce the children to her long-term partner. The court of appeals struck down the provisions that were explicitly homophobic, but allowed all the other provisions to remain in place (For more discussion of the basic facts and the court of appeals decision, check out my earlier blog).

Washington State Supreme Court Opinion

Sexual Orientation and Parenting 

The Court reaffirmed that a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children. This principal was first articulated by the Washington State Supreme Court in 1983, In re Marriage of Cabalquinto, 100 Wn.2d 325, 329, 669 P.2d 886 (1983) it was reiterated in In re Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996) (trial court abuses its discretion “if it restricts parental rights because the parent is gay or lesbian).

In this case, the GAL issued a homophobic report that was highly critical of the mother for “making choices” to divorce the father and for her “lifestyle choices” and essentially blamed Rachelle for the marriage ending the marriage, believing she should have waited until the children were grown before living an authentic life. The trial court relied heavily upon the GAL report. The Supreme Court stated:

We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands.

The question to tease out in the case was, when is a trial court basing its decision on sexual orientation? The father argued that the trial court did not base its residential schedule based on sexual orientation and that the numerous references to her sexual orientation were simply included for context. The mother argued that the because the GAL report, the trial, and the opinion where full of references and restrictions connected to her sexual orientation, the entire parenting plan was tainted with bias and needed to be reversed.

Previously, our state Supreme Court decisions allowed parenting plans to remain in effect even if there was a reference to sexual orientation. In the Wicklund decision, while the court held that parental rights couldn’t be restricted based on sexual orientation, the result of the case still ended up feeling like that was exactly what was allowed to happen. The trial court trial court focused on causing the least amount of change for the children, which inherently created a bias on the parent who was trying to live more authentically.

The Washington State Supreme Court noted that since Wicklund was decided in 1996 courts have recognized that members of the LGBTQ community are vulnerable to discrimination. The court referenced Obergefell v. Hodges, the decision that affirmed the dignity of same-sex relations and overturned marriage discrimination (as a side note, the court also noted that this decision abrogated its own decision in Andersen v. King County – the case where our state failed to properly apply constitutional rights, arguing that dignity of LGBTQ people should be subject to political whims and that gays were going to get there through the political process. This ultimately happened, but it took six more years and justice deferred is justice denied).

The court did not draw the connection that 1996, when Wicklund was decided, was also the height of the gay marriage panic when the Federal Government passed the Defense of Marriage Act and many other states passed “Baby DOMAs.” When Wicklund was decided, in many states it was still criminal to engage in same-sex sexual relations – those laws wouldn’t be held as unconstitutional for another seven years in Lawrence v. Texas.

I mention the timing because as President Obama noted when he finally supported ending marriage discrimination, attitudes around the LGBTQ community have evolved, not simply with respect to marriage, but with respect to our ability actually live a life without being criminalized.

In the Black case, the State Supreme Court found that the trial court abused its discretion for failing to remain neutral in determining the residential schedule. This is a good ruling, but I would have preferred a bit more bright line ruling: Sexual Orientation cannot be used in determining a residential plan and any plan that bases any part of a decision or restrictions on sexual orientation will be presumed to have abused discretion and will be void. This case does not appear to overrule the caveat that sexual orientation may influence a residential schedule if it harms the child. This is wrong. Would anyone argue that if a same-sex marriage ended because a partner realized s/he had a deep sexual attraction to someone of an opposite-sex that this could harm the child? No. Sexual orientation does not harm children. LGBTQ people are not inherently sexually deviant with a greater likelihood that their behavior could be harmful. In the same way that someone who has a heterosexual orientation may engage in harmful sexual behaviors, it is the actual harmful sexual behaviors that is a problem and has nothing to do with sexual orientation.

Nevertheless, the ruling effectively determined that sexual orientation cannot be used in any part of a parenting plan and if it a trial court makes unnecessary reference to sexual orientation and especially if a trial court includes any limitations based on sexual orientation, it will be presumed to bias the entire parenting plan (not simply the place that references sexual orientation).

Religion and Parenting 

In this case, the children were raised in a conservative Christian faith that was judgmental towards divorce and sexual orientation. The trial court also based parenting decisions on stability and maintaining the religious identity the children were raised in (without ever inquiring as to the children’s own religious beliefs). This clearly favored a particular religion. The mom still maintained a Christian identity, but she embraced Christian ideals that were more accepting. The court determined that the children must be raised in the more conservative Christian setting. This decision also violated the law with regard to parenting decision.

[Washington courts] require an analogous attitude of neutrality regarding conflicting religious beliefs. Although a trial court may consider the parents’ and the children’s religious beliefs when fashioning a parenting plan under RCW 26.09.184(3), it may not favor either parent’s religious beliefs without a clear showing of harm to the children[.]

(emphasis added).

The consideration of religion is intended to allow for an ability to figure out religious holidays and residential schedules and possibly other issues (i.e., coordinating taking children to religious services where there is a gender segregation, coordinating important religious milestones, like bar/bat mitzvahs).

In the Black case, religion and sexuality were intertwined. The argument was basically that because the children were raised in an ultra conservative religion they would be harmed by the mother’s sexual orientation because it contradicted the teachings of their religion. The trial court concluded that the father was better able to maintain the religious beliefs the children had thus far been raised. Thus, the court effectively favored the father’s religion.

The court didn’t do an analysis if either religious practice would harm the child. Arguably, if the court had done such an analysis, if any religious practice would have the possibility of harming the children, the father’s religion, which demands viewing their mother as a sinner, would be more likely to cause an actual detriment to the children.

Bias in a Parenting Plan Requires Dismissal of the Entire Parenting Plan

Parenting plans include numerous provision, there is the time each parent has with the the children, there are decision-making provisions, there are possible restrictions on visitation, and any parenting plan done with lawyers involved will include a vast array of “other” provisions that attempt to help guide parents on behaving respectfully with each other during the challenge of co-parenting. The Supreme Court decision essentially held that these other decisions must be reviewed when the trial court’s decision appears to have been tainted with bias.

What Happens Next? 

Sadly, this decision doesn’t mean an end for the family. Perhaps they will be able to go back to mediation in light of this decision and make agreements about their parenting, and increasing the mother’s time with her children. If they cannot reach agreements, they will have to go to trial. They will have to incur expense to hire a new GAL and likely another psychologist to interview the children. At the time this decision was issued, the court noted that one of the children is already 17, parenting plans do not apply to legal adults, so that means the oldest child will likely not be impacted, because with how slow the process is, he will likely be 18 before a final parenting plan is entered. The vast majority of his high school life had his mother radically diminished from his life because of the bias of the trial court and the bias of the ex-husband. If the ex-husband had not pushed for the restraints and limitations in the children’s life, the court never would have ordered it. The other two children are 14 and 9, so there is still a significant impact that a new parenting plan could have on their lives and their relationships with both parents.

Cases like this are heartbreaking. It seems clear that both parents love their children and that their children love both their parents. But in the way that break-ups can be toxic, this break-up got toxic and the father successfully leveraged the lingering homophobic attitudes to try to diminish the relationship between the children and their mother.

The reality is that as the children grow up, there is no way they will be anything other than resentful to the father for his efforts to marginalize their mother in their lives. Divorce does not inherently harm children, messy divorces where a parent is vindictive against another parent harm children. Children know more than we realize and eventually the father’s relationship with the children will likely suffer from his actions.

It didn’t have to be this way. In fact, our legislature has done everything it can and our courts have interpreted the statutes in ways to try to prevent exactly this kind of harm. The trial court missed an incredible opportunity to apply our state statutes to assist parents in doing what is best for their children. Instead of having a long court battle lasting years and years, had the court followed the statute and court law, the family could have been on a path towards healing and existing in their newly defined family.

Additional Side Note

Sexism, heterosexism, and homophobia are all leaves on the same branch of bias based on sexual stereotyping. In addition to religion and sexual orientation, this case seemed to be tinged with bias based on gender/against a parent who stays at home with children. The Supreme Court did not address this issue, but the decision by the trial court clearly punished the mother for being a stay-at-home parent. It argued that the father was more stable because he had a job. The court and GAL seemed to be critical of the mother for not making more of an effort to become employed outside the home. Despite questioning her ability to support herself, the court denied her alimony.

This case presents a particularly bizarre situation to assert the financial stability of the father because his financial stability is based on his employment with the mother’s parents. That seems like an inherently unstable relationship. What if the father starts dating someone else and the parents fire him? What if the parents evolve in their acceptance of their daughter and fire him for the trauma that he caused to their daughter?

Nevertheless stability referenced in our parenting statute is not financial stability or religious stability, it is the stability of the relationship between the parents. To use financial stability as a basis in a parenting plan deeply contradicts the legislative efforts to usurp that kind of decision through the creation of the child support schedule. It is dangerous to identify financial stability as a basis for a residential schedule because it will inevitably punish one parent. Studies show that regardless of sexual orientation, families almost universally tend to have one parent who makes financial sacrifices to support the family. Because of systemic sexism (i.e., that women still make significantly less for the same jobs as men, particularly if they are women of color), in opposite-sex relationships, it will often make the most economic sense for women to make the financial sacrifice, factoring in “financial stability” would result in systemic discrimination against (primarily) women in parenting decisions.