Ohio

Gay rights

Lots of news on the gay rights front.  Following the decision by the California Supreme Court back in May that gays had a fundamental right to marry, they’ve been doing just that.  Of course, California being the home of ballot initiatives, there’s one in November which would overturn the decision.  Which may be why gay couples are asking that, in lieu of gifts, well-wishers make political donations to the anti-initiative cause. 

That’s not likely to happen here.  Back in 2004, the Ohio legislature passed a law declaring that marriage was limited to the man-woman thing, and in case that wasn’t enough, several conservative groups put a referendum issue on the ballot that fall amending the state constitution to reflect that policy, which passed comfortably. 

That’s not to suggest that hostility to gays is unlimited in Ohio; back in 2006, a bill that would have prohibited gays from adopting — or even prohibited an individual from adopting if “the individual resides with an individual who the court determines is a homosexual, bisexual, or transgender individual” — went nowhere.  And last year, the 12th District tossed a lawsuit by a Republican state legislator seeking a declaratory judgment that Miami University’s policy of extending health insurance benefits to same-sex domestic partners violated the gay marriage amendment.  

That was based only on the court’s finding that he lacked standing, however.  Just last month the Michigan Supreme Court declared that the state’s 2004 ban against gay marriage did prohibit state universities, as well as state and municipal subdivisions, from offering health insurance to partners of gay workers.  We probably haven’t heard the last word about that in Ohio.

So with all that in mind, while doing the Case Update this week I stumbled across the 2nd District’s decision in Page v. Page, in which the court affirmed a trial judge’s decision to modify custody of two children, awarding them to the father after the mother took up with a lesbian lover.

Actually, that’s a very simplistic, and somewhat distorted, account of both court’s rulings.  The mother had entered into a civil commitment ceremony with another woman, Daria (in, of all places, West Virginia), and the difficulty was that, according to the trial court, her two boys, 16 and 14, had a “poor relationship” with Daria, and Daria “has not developed the social skills necessary to enable her to effectively interact with young men of this age.”  One boy wound up in counseling for anger management issues, and the other for depression. 

Both courts acknowledged that the 4th District’s 1997 decision in Inscoe v. Inscoe established the principle that sexual orientation couldn’t serve as a factor in custody decisions unless it was shown to have a negative impact on the child, but that here, that kind of impact had been demonstrated.  The appellate opinion in Page is thoughtfully written, and one comes away from the decision thinking that if the mother had been remarried to a man who had the same difficulties with the children (and them with him), there would similarly have been a change of custody.

Maybe.  Actually, Inscoe has much better language about not allowing such decisions to be influenced by public opinion.  In Inscoe, in fact, it’s pretty clear that the trial judge’s decision was so influenced:  he obviously didn’t care for gays, he figured that no one else did, and he assumed that the boy in that case would be adversedly affected by the attitudes of his peers toward the fact that his father was gay.

The problem, of course, is that the judge may have been right in that regard.  While studies have consistently shown that children of gays don’t fare any worse than children in heterosexual households (although more recent research indicates that they do grow up differently; not worse or better, just differently), most of those have been done on children raised from birth or adoption by gay parents.  It should be obvious that there might be differences between adjusting to the only parents you’ve ever known, and adjusting to a new parent figure introduced because of a divorce.  It should be equally obvious that that adjustment might be even more complicated if the new parent figure is of of the same gender as the custodial parent.

That’s not to suggest that the custodial parent’s entry into a homosexual relationship should disqualify the parent from retaining custody.  Divorced parents remarry every day, and children have to make adjustments to stepmothers or stepfathers; rarely is remarriage regarded as a reason for modifying custody.  This may have indeed been that rare case. 

The unsettling aspect of Page, though, is that the opinion relies solely upon the brief description of the trial judge’s finding about the Dalia’s “poor relationship” with the children and her “lack of skills” in that regard.  There had been reports of a psychologist and a social worker introduced in the court below, and I’d have been much more comfortable if the appellate court had relied more on that, and less on the trial judge’s unreferenced statements about Dalia’s shortcomings.

Full post as published by The Briefcase on June 24, 2008 (boomark / email).