In Washington State, it has seemed like settled law that sexual orientation and gender identity are not supposed to play a role in parenting decisions. Homosexuality was held as not a valid factor in parenting plan in 1983 in a case called In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983) and Transgender identity was held to not be a valid factor in parenting plans in In re Marriage of Magnuson, 141 Wash.App. 347, 170 P.3d 65 (2007).
However, any of us who have grown up in a society that is homophobic and transphobic understand that just because things are supposed to be a certain way, does not mean they are that way. A recent Washington State Court of Appeals decision showed us that a trial court will violate the rules and that an appellate court will reverse the most overtly homophobic aspects of a decision, but will leave the bulk of the decision in place, even though the whole case is infused with homophobia and religiously based discrimination against a parent.
In re Marriage of Black, Docket No. 45788-7-II; Opinion Author Sutton; joined by Worsick and Maxa. Attorneys for Appellant(s) Amanda Beane, Kelly Moser, Julie Wilson-McNerney, and Ward . Attorneys for Respondent Levy, Masters, Lemmel. Amicus – NCLR – Rasnic; WA State Psychological Association -Clinton, Peterson Aand Nickel-Nguy; ACLU – Talner. – Update the Washington State Supreme Court has accepted review of this case.
Basics of Decision: The appellate court held the trial court erred when it restricted the Mom’s conduct and speech about religion and sexuality without making any specific findings of harm to the children, and erred when it allocated Father sole decision-making authority regarding religious upbringing and daycare. But the court found that the trial court did not err when it designated the father as the primary residential parent, allocated sole decision-making authority for education to Father, denied Mother spousal maintenance based on Father’s inability to pay, and required Mother to pay child support.
Basic Facts: Mother and Father married in 1994 and had three children together. They raised their children in a conservative Christian home and sent them to religious-based schools. For the majority of the marriage, Mom did not work outside the home.
Mom came out as a lesbian and began dating another woman in December 2011. In May 2013, Mom filed for divorce, and both parents sought designation as the primary residential parent and sole-decision making authority regarding the children’s education.
The GAL only spoke to two of the three children, and only spoke to those two children for an hour. The children’s therapist said while the divorce was difficult, they were adjusting. When Mom came out to the children, the therapist told mom to hide her relationship. The therapist also told the mom not to talk about sexual orientation or answer the children’s questions outside of therapy.
Mom’s new partner was supporting her financially and the trial court speculated that Mom’s search for full-time employment or enrollment in an educational program would affect her ability to parent full-time.
The trial court did state that Father was clearly the more stable parent in terms of ability to provide for the needs of the children financially, emotionally, and in maintaining their religious upbringing.
The trial court ordered the mother could not introduce the children to her partner until the therapist decided she could (and provided no requirement that the introduction be made by a certain time).
The Decision: The standard on appeal is “abuse of discretion,” meaning that a trial court decision is manifestly unreasonable or based on untenable grounds or untenable reasons. As long as there is substantial evidence to persuade a fair-minded individual of the truth of the matter asserted, the findings of fact are upheld on appeal.
In determining whether the trial court abused its discretion, the appellate court discussed the inability to use sexual orientation as a reason for restriction and noted that the trial court found there was no basis for .191 restrictions (restrictions that exists because a parent’s behavior harms the child(ren)). Without .191 restrictions, the limitations Mother’s parenting regarding introducing to her partner and discussing sexuality or religion constituted an abuse of discretion. Restrictions aren’t allowed to make the transition of divorce easier.
The court found that the restrictions violated Mother’s first amendment rights, especially because it was a blanket prohibition with no findings made by the court of any actual or perceived harm that the children would suffer from the prohibited speech.
The court noted that in prior cases regarding religion and parenting that parent’s have a right of free exercise of religion.
Despite the appellate court acknowledging that trial court had engaged in “blatantly content-based restrictions” regarding religion, homosexuality, or “alternative lifestyle concepts” the appellate court rejected the argument that the trial court improperly considered Mother’s sexual orientation and favored Father’s religion.
The appellate court focused significantly on the idea that there is no presumption in favor of the primary care giver in determining a parenting plan (citing a case called Kovacs). Instead the court focused on the emotional needs and development level of the child and the child’s relationship with siblings and with other significant adults, [and] the child’s involvement . . . [in] school, or other significant activates; finding that “because of [the children’s] sheltered upbringing and emotional development, [the father] was best suited to provide for the children financially and emotionally.”
The trial court also weighed the factor of employment schedule in the father’s favor because Mother’s future employment is unknown.
In the end, the appellate court concluded that there was substantial evidence support the trial court’s findings that (i) both parents had strong relationships and bonds with the children, (ii) they had no prior parenting agreements, (iii) both parents have good potential for future parenting functions, but that father had taken on many of the responsibilities since December 2011, (iv) father was the parent most able to provide stability, and emotional and financial support to the children, (v) father was most able to maintain the other strong relationships in the children’s lives, (vi) none of the children stated their preference to the court, and (vii) the father’s employment situation was best suited to provide him the flexibility to parent the children consistently.
Discussion of Judicial Bias
In response to the question of whether the court’s opinion demonstrated judicial bias, the appellate court found that there was no evidence in the record to support the argument that the trial court based its residential placement on the mother’s sexual orientation or preference for the father’s religion and that the judicial ruling alone is not valid evidence of bias. Somehow the court of appeals held that explicitly biased provisions are not evidence that when the trial court was likely making credibility determinations and other forms of fact-finding that it was likely making those determinations with bias.
Essentially, even though the court entered restrictions based solely on sexual orientation (or as the the trial court called it, “alternative lifestyle concepts”) and effectively limited Mother’s time with her children by not allowing her to exercise residential time with her new partner, the appellate court found the trial court did not act in a biased manner.
This leads to the natural question: Exactly what must a court do to rise to the level of actual bias for the court of appeals? Would the court have to affirmatively say, “I hate gays”? Would it require a GAL report that wasn’t also biased and a court entering restrictions that a GAL report did not include? Would a requirement for supervised visitation without specific findings allow the court to conclude the trial court was biased?
Unfortunately, this case affirms what many LGBTQI people fear, that the court system will be unfair and limit their parenting in ways they would not if they weren’t LGBTQI. Maybe this court will wind it’s way up to our state Supreme Court. As for right now it is what is called an unpublished opinion, meaning that it is not allowed to used by other courts as authority.
The Problem with the Bias Argument
There is no doubt in my mind, or likely any person who has had someone make comments about something like their stability in connection to their sexual orientation and their ability to parent, that bias plays a role in the decision. The problem is that in order to maintain the important fiction that judges are unbiased, requesting that a case turn on the issue of bias puts courts in the untenable position of saying that their colleagues are biased. The Supreme Court is unlikely to want to open the door for future cases to claim that there is bias by using this case to acknowledge that bias exists within the judiciary.
Beyond that, determining there is judicial bias isn’t required. In a case where the court enters provision based on sexual orientation, the whole order should be void. There was a case, Wicklund, that essentially held as long as the rest of the order had tenable underpinnings that this would not require the entire order to be vacated. But Wicklund occurred in 1996. 1996 was the year DOMA was signed into law. In 1996, Bowers v. Hardwick, was still good law, and that case said it was okay for states to criminalize sodomy. We have seen a sea change occur in our society with regard to homosexuality and as such, Wicklund, to the extent that it doesn’t vacate the entire parenting plan when the judges explicitly states decisions were based on sexual orientation can be upheld, should be overruled.
Requiring that sexual orientation cannot be a factor for any part of the parenting plan will make it so that parties will be discouraged from claiming sexual orientation inevitably harms children (or now that we have marriage equality that a heterosexual relationship post a same-sex relationship inevitably harms the children).
Then we will be pushed to the next issue – how to deal with covert judicial bias. Like the judge who claims a parents transgender identity or sexual orientation plays not role in the case but places restrictions that are similar to a pedophile even though there are no allegations of any physical harm against the child.
Hopefully our State Supreme Court will make it clear that if a parenting plan involves restrictions based on sexual orientation or religion that the parenting plan will be preemptively invalid and it will be sent back down for a new judge just for the sake of the appearance of fairness. If no judge is available (a possible problem in smaller counties), require a change of venue (i.e., require the case to be heard in another county).