Lesbian Lifestyle and Non-Attendance at Church Leads To Court's Transfer of Custody To Father In Mississippi
The Mississippi Court of Appeals, in Davidson v. Coit, Miss. Ct. App., No. 2002-CA-01570, 2/1/05, ruled that a custodial mother's exposure of her daughters to her lesbian lifestyle and her failure to take them to church were properly considered by a trial court in changing custody to their father.
While acknowledging that the divorce court was aware of the mother's sexual preference when it originally awarded her custody (and that the fact that she was a lesbian would not support modification), the court found that the evidence buttressed the father's contention that her post-divorce conduct was detrimental to the children. It also found that in awarding custody to the father the trial court did not err in taking into account the fact that the mother did not take the children to church When the parties divorced in 1997, they were granted joint custody of their two daughters, with the mother having primary physical custody. In 2001, the father filed for modification, asserting that the children (then ages 7 and 9) had been exposed to the mother's lesbian lifestyle and that her live-in girlfriends and the maternal grandmother were raising them.
"I Want the Children in Church"
At the hearing on the father's petition, a family therapist testified that the children had admitted to him that most of their primary care was provided by their mother's live-in girlfriend and that they had been exposed to their mother's sexual behavior (they knew she shared a bedroom with her girlfriend and saw them watching movies showing "naked women ... kissing each other and lying next to each other"). At the end of the hearing, the trial judge ordered that the children be taken to church, stating: "I want the children in church wherever they may be." He then awarded the father temporary custody, pending a final ruling on the matter.
A subsequent hearing was held in 2002, at which the court questioned the mother about her not being affiliated with or taking the children to any church. The court subsequently issued an order modifying the divorce decree and granting the father permanent custody. The court's determination was based in part on its conclusion that the mother was "lacking in some aspects of her moral character," stemming from the facts that the mother "[l]ets other watch her children more than she does" and "[n]ever takes the children to church or any other moral character building programs," as well as from her own mother's concerns about her "motherly instincts," and the mother's "change of partners." The mother appealed.
Changed Circumstances
Judge T. Kenneth Griffis, writing for the intermediate court, acknowledged that the mother's sexual preference for women was known at the time of the divorce and initial custody determination. He pointed out, however, that the father's modification motion was not based on the mere assertion that the mother was a lesbian; instead, he had presented evidence indicating that a substantial change in circumstances had occurred since the original custody determination through the children's exposure to her lesbian sexual relationship, and that the exposure had adversely affected the children, Griffis said.
Recognizing that the court had previously held that the sexual relations of an unmarried custodial parent cannot be the sole factor in determining custody, he stressed that they can, however, be one factor, explaining that the "existence of the relationship is insufficient, but if the relationship is coupled with other conduct that indicates the custodial parent's behavior is harmful in additional ways, custody can be changed."
Going on to observe that courts often encounter similar accusations between heterosexual former spouses, Griffis asserted that while it may have been known that the mother was a lesbian, the substantial change in circumstances was the fact that she exposed the children to the "sexual nature of her intimate relationships." He added that the fact that the divorce court and father knew the mother was a lesbian "did not give her permission to expose the children to any of her sexual relationships," and determined that the evidence supported a finding that such exposure adversely impacted the children's welfare. Griffis also found that trial court was concerned with the mother's lack of participation in the primary care and supervision of the children and that her employment interfered with the amount of time she spent with them.
Moral Fitness
Griffis next turned to the trial court's application of the factors outlined by the state supreme court in Albright v. Albright, 437 So.2d 1003, 10 FLR 1005 (Miss. 1983), focusing on the mother's contention that it had put undue weight on the "moral fitness" factor. Reiterating his finding that the court did not place improper weight upon the mother's sexual orientation, he rejected her further contention that the court had placed undue weight on her lack of church attendance.
Griffis said that in Weigand v. Houghton, 730 So.2d 581 (Miss. 1999), the state supreme court affirmed that the issue of religion may be considered when determining custody. "For over a century," he declared, "our courts have considered a parent's involvement in the [child's] 'moral and religious' training to determine custody." Saying that the trial court's order "did not require either parent to take the children to church," Griffis asserted that there "was no error for the [trial court] to consider a parent's involvement in the past and future religious and spiritual development of their children." He added that the court did not solely rely or place undue weight on the mother's decision as to whether or not to engage in religious activities, and concluded that even if the court was incorrect in assessing the moral fitness factor in favor of the father, there remained substantial other evidence to support the modification award.
Undue Weight
Chief Judge Leslie King dissented, arguing that the trial court "appears to have equated church attendance (religious training) with moral fitness, and in so doing placed undue weight on that single issue." The right to freely exercise one's religion also includes the right not to exercise a religion, King emphasized, adding that while the decision whether or not to engage in religious activities may be considered when reviewing a parent's moral fitness, such decision, by itself, does not make the parent moral or immoral, and does not conclusively resolve the question of moral fitness.
