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Wednesday, July 30, 2008

Ind. Decisions - Recent COA NFP custody decision receives some attention

The July 24th Court of Appeals opinion in the case of Diana E. Lowhorn v. Brian E. Lowhorn (NFP) [See ILB summary here, 7th case], was the focus of an entry this evening by law prof. Eugene Volokh. Mr. Volokh, as profs are prone to do, poses a hypothetical:

Say we have two parents vying for custody. The children don't like associating with the transgendered people, lesbians, uncool people, disfigured people, fundamentalist Christians, Wiccans, blacks, or whites whom one parent invites over for dinner. (It may well be that the legal rules should be different for the different categories -- or maybe not.) The other parent offers an environment that the children seem to like more. Assume there's no serious threat to the children from the associates, nor any evidence of outright psychological damage stemming form the children's embarrassment -- just the sort of unease that people sometimes have, rightly or wrongly, from being around certain kinds of people. Should a court consider this? Under what circumstances? What role should the child's age play?

The entry caused me to reread the NFP decision to reverse and remand. Here are some quotes from the 18-page opinion, written by Judge Brown:

Mother has had a platonic friendship with Galen for several years. Father described Galen as “a super nice guy.” In August 2005, Father learned that Galen had transgendered from male to female. Father also learned that Mother had taken the children to the Jesus Metropolitan Community Church (“JMCC”), a church open to gay, lesbian, bisexual, and transgender people.

On January 6, 2006, Father filed a petition to modify custody, in which he requested sole legal and primary physical custody of the children. The trial court held a hearing on the petition on November 9, 2006, and conducted an in camera hearing with the children. On October 31, 2007, the trial court issued its findings of fact and conclusions of law. The trial court found that “[s]ince the entry of the Decree, there has been a substantial and continuing change of circumstances such that the Court’s prior Order pertaining to custody of said children and the parenting time arrangements is not in the children’s best interests.” Specifically, the trial court found that: (1) Mother had failed to provide Father with information regarding parent-teacher conferences, extracurricular activities, religious training, and medical issues; (2) Mother had forced the children to be seen publicly with her transgendered friend; (3) Mother had forced the children to attend church at JMCC with her; (4) Mother had failed to provide Father with the right of first refusal for additional parenting time; (5) both children had expressed a strong desire to live with Father; and (6) Mother was unwilling or unable to address the psychological and physical needs of the children. The trial court found that joint legal custody was “unworkable” and that Father should have sole legal and physical custody of the children with Mother having parenting time. * * *

After Father confronted Mother about Galen, Mother agreed that she would not “have the kids around. Galen.” For a few months, the children had no contact with Galen. Now, the only interaction between the children and Galen is when Galen comes to Mother’s house for dinner two or three times a month.

The trial court’s finding that “Mother continues to subject the children to being seen with the person in restaurants, in front of their friends, and at the children’s extracurricular activities” is clearly erroneous. Rather, the evidence demonstrates that, after the children’s concerns were brought to Mother’s attention, the children had interaction with Galen only a few times a month for a private dinner in their residence. There is no evidence that the children’s occasional interaction with Galen during private dinners is harmful, and the evidence is simply insufficient to demonstrate a substantial change to modify custody. See, e.g., Downey v. Muffley, 767 N.E.2d 1014, 1020 (Ind. Ct. App. 2002) (holding that no rational basis existed for custody order preventing the mother from living with her same-sex domestic partner where there was no evidence of an adverse effect upon the children based upon the mother’s sexual preference and relationship with same-sex partner); Johnson v. Nation, 615 N.E.2d 141, 146 (Ind. Ct. App. 1993) (holding that the trial court erred by modifying custody solely based upon changes in the father’s attitude toward and involvement in religious activities without evidence that the children’s physical health was being endangered or their emotional development was being significantly impaired); D.H. v. J.H., 418 N.E.2d 286, 293 (Ind. Ct. App. 1981) (holding that homosexuality of a parent, standing alone, without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child).

Posted by Marcia Oddi on July 30, 2008 06:48 PM
Posted to Ind. App.Ct. Decisions