Posted by Eugene Volokh:
Ban on Divorced Father's "Exposing the Children to His Homosexual Partners and
Friends":
http://volokh.com/archives/archive_2009_06_14-2009_06_20.shtml#1245347431
A Georgia trial court imposed such a ban in 2007; the Georgia Supreme
Court just set it aside on Monday, in [1]Mongerson v. Mongerson:
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 contact. 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. See Turman v. Boleman, 235 Ga. App. 243, 244
(1998) (abuse of discretion to refuse to permit mother to exercise
visitation rights with child in the presence of any
African-American male); In the Interest of R.E.W., 220 Ga. App. 861
(1996) (abuse of discretion to refuse father unsupervised
visitation with child based on father�s purported �immoral conduct�
without evidence the child was or would be exposed to undesirable
conduct and had or would be adversely affected thereby). 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.
Two justices (Melton and Carley) "write separately to emphasize" that
the quoted passage above "should only be read to stand for the
well-settled proposition that, absent evidence of harm to the best
interests of the children through their exposure to certain
individuals, a trial court abuses its discretion by prohibiting a
parent from exercising their visitation rights while in the presence
of such individuals (in this instance, Husband�s homosexual partners
and friends)."
By the way, here's an extract from the 1998 Turman case, which I
hadn't heard of it until now:
Turman and Boleman were divorced on November 13, 1996. Their
settlement agreement, which was incorporated into the final
judgment and decree, provided that Boleman would have custody of
their minor child. The agreement gave Turman certain specified
visitation rights away from the father's residence �on the
condition [that] at no time shall [the child] be in the presence of
William �Larry� Little or any other African-American male except
that [Turman] shall not be in contempt of court if she has casual
contact with any African-American male other than William �Larry�
Little.� After Turman married Kenneth Turman, an African-American
male, Boleman refused to allow Turman to visit with the child away
from Boleman's residence. Turman moved to hold Boleman in contempt
for refusing to allow her to exercise her visitation rights. At the
hearing on the contempt motion, Turman argued that the provision in
the settlement agreement conditioning her visitation rights upon
the child's having no contact with any African-American male was
unenforceable.
The trial court improperly upheld the validity of the visitation
provision which prohibited the child's contact with any
African-American males. This provision is unenforceable as against
public policy.... The visitation provision here violated the
express public policy against racial classification and the public
policy encouraging a child's contact with his noncustodial parent.
The trial court held that the provision was enforceable because it
was a matter of private contract. However, after that private
agreement was incorporated into the trial court's order, enforcing
the private agreement became state action.... The courts of this
State cannot sanction such blatant racial prejudice, especially
where it also interferes with the rights of a child in the
parent/child relationship.
The agreement between the parties clearly violated the State's
public policy to promote the best interests of the child. �It is
the express policy of this state to encourage that a minor child
has continuing contact with parents and grandparents who have shown
the ability to act in the best interest of the child and to
encourage parents to share in the rights and responsibilities of
raising their children after such parents have separated or
dissolved their marriage.� Contrary to this policy, the agreement
prevents the child from having contact with his natural mother
solely on the basis of an arbitrary racial classification. Although
a court may validly provide, under appropriate circumstances, that
a child is to have no contact with particular individuals who are
deemed harmful to the child, such provision cannot be based solely
upon racial considerations, as such ruling violates the public
policy of the State of Georgia.
Monday's Mongerson, with which I began the post, apparently doesn't
have this extra twist of an initial agreement by the parties; the
father seemingly either never agreed to the "[no] exposing the
children to ... homosexual partners and friends" condition, or agreed
to it only because the trial court "express[ed] its opinion that, but
for the agreement, the trial court would not have permitted Husband
the limited contact to which the parties agreed" (and then promptly
appealed the trial court order).
Thanks to [2]How Appealing for the pointer.
References
1. http://www.supreme.courts.state.ga.us/pdf/s09f0132.pdf
2. http://howappealing.law.com/
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