Sexual Orientation and Parenting in Washington State

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).

Family Law Appeal Examples

In a recent post, I discussed appeals generally. In this post, I’m going to discuss examples of family law appeals that have been decided in the last 14 days. In a span of 14 days of the 23 published decisions, none of the published decisions were family law cases. There were 48 unpublished decisions and of those, about six had a connection to the issues families deal with. Below is an example of cases that impact families.

Published Decision

In re the Marriage of Olsen  (Division III)

In this case, the husband and/or his attorney failed to appear for trial on two prior occasions. On the third date trial was to proceed, they failed to appear again and the court proceeded with the trial based on wife’s evidence and entered a final order. Husband appealed the orders under CR 60(b)(1) ((b) (mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order). The Court denied his motion and so he appealed. The appellate court affirmed the lower court holding that a party, in this case the husband, bears responsibility for the negligence of his lawyer and is not entitled to relief from the trial outcome.

An unusual fact about this case, is the couple had been together for nine months. They were divorced in Kansas in October 2010, but the court did not decide financial issues because it lacked personal jurisdiction over Mr. Olsen (Mr. Olsen did not live in Kansas, the marriage didn’t take place in Kansas, etc.) Mr. Olsen then initiated a dissolution proceeding in Spokane County to decide child support, divide property, debt and apportion liability for attorneys fees.  Trail was initially set for January 2012, continued by agreement, unsuccessful mediation in March 2012, trail set for April 2012,  but Mr. Olsen and his attorney did not show (no reason indicated in the order) and the trail was continued to May 2012. On May 14, 2012, husband’s attorney appeared but husband failed to appear and trial was rescheduled to May 16, 2012. Husband’s attorney claimed he was having chest pains in the morning, court continued to the afternoon for documentation from a healthcare provider that a health issue prevented him from attending court (an unusual move by a court, one employed only if a court is under the belief they are being lied to as attorneys with a decent reputation would ordinarily be given the benefit of the doubt).  Father had not appeared in the morning. Father and attorney did not appear in the afternoon and no evidence of a medical issues was provided, so the court proceeded with trial. On June 13, 2012, the court issued it’s memorandum decision. It is unclear when Mr. Olsen filed his motion to vacate, but based on the Ms. Olsen’s arguments, it was likely more than 30 days after the decision was issued because one of her defenses was that he should have reconsidered (typically a 10 day deadline) or appealed (typically a 30 day deadline).

A legal issue the court discussed was whether orders entered after failure to appear at trial are default orders or just orders. The court clarified that if a trial is held, even if one side does not appear, the judgment will be on the merits, not a judgment by default.

No attorneys’ fees were granted for either party.

Update: On March 3, 2015 the Washington State Supreme Court denied the petition for review. 

Unpublished Decisions

In Re The Guardianship Of: Dorothy May Kertis (Note, this case would not be called a family law case, it would be a trust and estate litigation case) 

This was a case where there was five year domestic violence order in place restraining a son from having contact with his mother who was incapacitated (she has dementia).  The allegations included claims that he made his mother so agitated during his visits that it impacted the staff’s ability to care for her and he refused to follow the terms and conditions placed on visits. There also claims that he stole from his mother and had a long history of alcohol and drug abuse. The staff alleged he tried to sneak into his mother’s room at 1:00 a.m. and appeared to be intoxicated and was aggressive and threatening. The guardians petitioned for and were granted a domestic violence protection order (DVPO).  In 2013, the son tried to end (terminate) the DVPO. Before the hearing, he entered into an agreed order with the guardians that would allow for supervised visits. He then sought to have the DVPO terminated and the court rejected his motion based on insufficient evidence to find a substantial change in circumstances. The son appealed the decision and the court of appeal upheld the decision.

In Re The Marriage of Collins, (Division Two)

In this case, father appeals the primary residential placement with the mother. Couple married in August 2008 and separated in 2010, father filed for dissolution in 2012. They had one child who was three years old at the time of trial. Father, mother and a guardian ad litem (GAL) testified at trial. The GAL recommended that the father be the primary residential parent. The trial court disagreed. It found the father’s testimony was not credible and mother’s was credible. The court found that (1) father intentionally and with malice made material representations to mislead the trial court, (2) father intentionally and with malice aforethought refused to abide by a lawful court order granting mother residential time, (3) Father interfered with Mother’s relationship with the child, and (4) Father engaged in abusive use of conflict which created the danger of serious damage to the child’s psychological development.

On appeal, Father made an important error and he did not designate the final parenting plan as a part of the record on appeal, thus the actual plan was not before the court to review, which necessarily limited the scope of the court’s review. Thus the court limited its review to the question of whether the trial court abused its discretion by disregarding the GAL’s findings that there was no abusive use of conflict and the GAL’s recommendation that the Father be the primary residential parent.

The appellate court upheld the trial court’s decision. The court noted that the trial court had made detailed findings that outlined its decision. It also noted that the Father was arguing about credibility and the strength of evidence, two issues solely within the purview of the trial court. The appellate court also noted that the GAL was not as fully in support of the father as the father alleged. Noting that the father’s conduct could be viewed as abusive use of conflict and that if the father had followed the agreed plan, the child would have been shared equally with both parents, but the father failed to follow the plan.

D.B. v. E. B. (Division III) 

Father appeals parenting plan modification, which reduced his residential time with his son. The appellate court affirmed the trial court’s decision.

Additional details: Residential schedule was initially decided in 2006, when the child was four years old. In this plan, the child resided with father Wednesdays at 4:00 to Saturdays at 10:00 a.m. every other week. On the alternate week, from Wednesdays at 4:00 to Thursdays at 4:00.

During the 2010/2011 school year the child began to spend approximately half of his time with his father due to the mother’s new job which required her to work later. Father’s work schedule allowed him to pick up the child from school and the child would reside with him until the mother picked him up after work. In November 2011, child was struggling, so the parties agreed child would stay over with father when mother worked late. Then in the fall of 2012, the mother’s boyfriend began caring for the child on the nights that the mother worked and the mother went back to the parenting plan.

In response to reverting to the original schedule, the father filed a petition to modify the parenting plan because the parties had substantially deviated from the original residential schedule and that the child had been integrated into his home with the mother’s consent. He requested the parenting plan be modified and he be granted primary residential custody. The mother opposed the change.

The superior court commissioner determined there was adequate cause (the first threshold that must be passed in a modification) and that the parties could proceed to trial, based on a finding that the child was spending equal time with both parents in significant deviation from the original plan and ordered the parties to have a temporary 50/50 plan.

At trial, the court found that the parties had come together to decide a better option for the child, but it did not adopt the commissioner’s 50/50 plan, instead the court essentially allowed for the father to have overnights when the mother worked past 8:00 p.m., which was about 5 out of 21 nights. Plus every other weekend.

The father appealed, arguing that the trial court should have adopted the commissioner’s 50/50 plan. The court examined the issue based on whether the court had abused its discretion – meaning if the trial court decision was manifestly unreasonable or based on untenable grounds or reasons. The appellate court noted that there is a strong presumption against modifying a parenting plan and a two step process, first adequate cause must be found and then the parties must proceed to trial and prove (1) a substantial change occurred in circumstances as they were previously known to the court, (2) the present arrangement is detrimental to the child’s health, (3) the modification is in the child’s best interest, and (4) the change will be more helpful than harmful to the child.

The appellate court found that the father failed to show how the court abused its discretion in modifying the residential schedule, noting that the trial court is not bound by a commissioner’s adequate cause findings as adequate cause hearings simply determine whether the moving party has met the threshold burden of showing a substantial change in circumstances to warrant a full hearing on the petition.

The mother was awarded attorney’s fees and costs based on the finding that she was the substantially prevailing party.

In re Marriage of Hunt (Division III) 

Husband appealed the property and debt distribution, arguing that the trial court failed to include three community debts in the division and that the trial court abused its discretion when it refused to accepts additional documentation after trial. The appellate court found the trial court did not err and affirmed the trial court’s decision.

Details about the case, parties were married for five years before separation. They had personal property, debts, and a sheep ranch and butchering business. The court found the wife’s evidence more credible as she was much better at documenting and backing up her claims, whereas the husband did not provide support for his testimony and some of the content of his decisions were just difficult to believe.

After trial was all over, husband made a claim that there were almost $160k in debts of the community and business that he just failed to bring up at trial. The trial court heard a hearing but did not allow husband to reopen the trial and submit new evidence. The court noted it would be improper, especially based on weak evidence that was not credible. The appellate court affirmed, also noting that the evidence was not newly discovered (husband new about it before trial) and it could have been produced at trial with reasonable diligence. The court said that the evidence at trial does not support husband’s claims on appeal and noted that he had the ability and control over the documents to substantiate them at trial, and these claims were not credible, he was inconsistent and insufficient in his claims and proof.