Nancy Polikoff

Gay dad gets a good ruling from the Georgia Supreme Court

Filed By Nancy Polikoff | June 15, 2009 5:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: gay fathers, Georgia courts, visitation rights

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.

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.

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"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."

Nancy, I live in Georgia and I can tell you from all I have see this state do to EVERY minority, this will be a superficial victory at best. I hope this one particular father has a wonderful life with his children.

gaylawyer | June 16, 2009 9:36 AM

It seems to me that this decision lays out a roadmap for future attacks on gay and lesbian parents. Rather than asserting that contact with the gay and lesbian community is not per se harmful to children, the court merely finds that not enough evidence was introduced in the instant case.

I'm not terribly optimistic about what might happen in a future case with the right "expert" testimony - there are plenty of right-wing crackpot pseudo-scientists ready to testify that the children will suffer harm.

Isa Kocher | June 15, 2009 9:43 PM

thank god that a parent, a father to boot, gets to be a human for a few hours a month at least. it's good news. we already know the bad news. it's nice to share a moment of humanity.

A little over a year ago I was performing a marriage out side at a park and both women had children present, two each from previous opposite sex marriages. Two bi women getting married with their kids present should be cool. But one of the kids was being a problem, he was young and his father had primary custody of him and they started attending a homophobic church.
So the kid was starting to pitch a fit because his mom was getting married to another woman and he was insisting that since I was not a Christian minister I couldn't be legal.
It was sad because it was an otherwise wonderful day but this kid had been programed by the dad to cause trouble.
But it did get all sorted out.