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Pa. custody ruling gives equal rights to gay parents
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In an opinion that at once awarded homosexual parents equal custody rights and criticized a Dauphin County Common Pleas judge for potential gender bias, the state Superior Court overturned a 25-year-old precedent.
The previous precedent, the court wrote in a 7-1 opinion, set a presumption "based upon unsupported preconceptions and prejudices -- including that the sexual orientation of a parent will have an adverse effect on the child."
"Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child."
Experts say that the opinion issued last month, though not unexpected, represents the continuing evolution of child custody law in Pennsylvania.
The case decided by the Superior Court involved a married couple who adopted an infant daughter in 2004.
The woman, a lieutenant with the Pennsylvania State Police, filed for divorce in October 2006, after she revealed that she had been having an ongoing relationship with another woman. She and her husband, a sergeant in a Dauphin County police department, each filed for custody of their daughter.
As part of the court case, both parents agreed to allow a neutral social worker to perform a custody evaluation. The results showed that the girl would benefit from shared custody, in which the parents would alternate three days with the child, and two days without.
Dauphin County Senior Judge Joseph F. Kleinfelter put that plan in place for an 18-month transition period.
However, before that time expired, the judge awarded primary physical custody to the husband, allowing the mother to have the girl only on alternate weekends, some holidays and for six weeks in the summer.
He based his decision on a 1985 opinion, which found that the burden is placed on the parent involved in a gay relationship to prove that it will have no adverse effect on the child.
In that case, the Superior Court said that homosexual relationships were not the same as heterosexual relationships. The new ruling described the 1985 opinion, saying that the majority found as a " 'fallacy' the notion that a homosexual relationship could ever be the equal of the traditional family as a suitable family arrangement, and indicated that it was 'inconceivable' that a child could be exposed to a homosexual relationship 'and not suffer some emotional disturbance, perhaps severe.' "
In citing that 1985 decision, Judge Kleinfelter said the mother in his case never showed there would be no adverse effect.
He concluded that "when weighing [daughter's] best interests between the two households, we believe those interests are better served by placing her in a traditional heterosexual environment."
Judge Kleinfelter said he awarded primary custody to the father based on his personal experience as a judge, parent, grandparent and foster parent.
In doing so, he ignored the recommendation by the social worker that if primary custody were awarded that it should go to the mother. Judge Kleinfelter further said that he considered any preference by the child to be "absolutely irrelevant."
But the Superior Court found that Judge Kleinfelter abused his discretion by both ignoring the recommendations of the social worker and by basing his decision on his personal opinion.
The court immediately awarded shared custody to both parents.
Kathleen Misturak-Gingrich, who represented the mother in this case, said the girl, who is now 6 and in first grade, is thriving.
"My understanding is she's ecstatic about the situation," she said. "That's what she always wanted. She's a happy, well-adjusted child."
The Superior Court's decision simply reiterates the proposition that custody matters should not be determined based on presumptions, but instead on the "best interests of the child," said Harry Gruener, a family law professor at the University of Pittsburgh.
In years past, mothers were favored over fathers, and in bi-racial relationships, the white parent was presumed to be favored over a black parent.
"It's a matter of fairness," Mr. Gruener said. "We should start out equal when the trial starts."
He believes that the trend nationally is to do away with presumption.
"It hasn't been a revolution. It's been an evolution."
Ms. Misturak-Gingrich agreed.
In a written slap at Judge Kleinfelter, the court noted that during the hearing, he referred to the father in the case as "Sergeant," though he referred to the mother by only her first name, and not "Lieutenant."
"The Pennsylvania Supreme Court is dedicated to eradicating gender discrimination in our court system," Judge Christine Donahue wrote. " Given all of the hard work in the uphill battle against gender discrimination, we would be remiss if we did not remind the trial court that Mother and Father are entitled to equal deference to their respective ranks when being addressed by the trial court."
Ms. Misturak-Gingrich applauded the court for its rebuke.
"That kind of behavior was very obvious and offensive," she said. "We thought it was indicative of the judge's bias."
First Published February 25, 2010 12:00 am
