With all the attention to lesbian and gay couples having children through donor insemination, surrogacy, and adoption, it might be easy to forget the legal issues that affect gay parents who come out after having children within heterosexual marriages. In some parts of the country it would be laughable to argue in court that gay parents are unfit, but in other places -- especially in the South -- the reality is very different.
Gay dad gets a good ruling from the Georgia Supreme Court
So it is especially great that the Georgia Supreme Court today overturned a trial court order that a gay father could not exercise his visitation rights with his four children in the presence of his "homosexual partners and friends." In the case, Mongerson v. Mongerson, the Court said:
There is no evidence in the record before us that any member of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such conduct. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children and constitutes an abuse of discretion....In the absence of evidence that exposure to any member of the gay and lesbian community acquainted with Husband will have an adverse effect on the best interests of the children, the trial court abused its discretion when it imposed such a restriction on Husband's visitation rights.
In spite of the obvious victory, I know enough to read this language with a bit of trepidation. Courts that want to restrict lesbian and gay parents have been quick to find "adverse effect" or "harm," even when the parent's sexual orientation is not the cause. How about a child who is uncomfortable around his father's gay friends because his mother says homophobic things? or just because it's different? Children of divorce can show distress for lots of reasons; a homophobic judge can attribute that distress to having a gay parent and may get away with it. And what is "inappropriate conduct" anyway? A gay couple holding hands or kissing? There is always the chance that conduct considered benign when heterosexuals do it will seem "inappropriate" when it's two men or two women.
So I'll take my good news wherever I get it. But I'm not pronouncing Georgia courts safe for gay and lesbian parents on the basis of this opinion.