Issuing an opinion that says a parent's sexual orientation should be irrelevant in custody disputes throughout the state, the North Carolina Court of Appeals reversed a lower court which had taken two children from their father's custody because he is gay.
Beatrice Dohrn, legal director of Lambda Legal Defense and Education Fund, and Sharon Thompson of N.C. Gay and Lesbian Attorneys (NC GALA) brought the appeal behalf of Fred Smith, a North Carolina father who had raised his two sons all their lives until losing custody in 1995.
Thompson said, "The two children in this case were uprooted from their father's home where they were thriving in North Carolina, to live with their mother in Kansas, just because our client's ex-wife discovered he is gay."
Thompson continued, "We are pleased the appeals court today clarified to judges throughout the state that decisions to modify custody must be based on concrete facts showing harm to children, not based on speculation that children are harmed by a parent's sexual orientation or private sexual behavior."
Dohrn said, "The law has always been that a change in custody is only warranted when children are being harmed in their present home. This ruling makes clear that having a gay parent does not harm children."
Dohrn added, "North Carolina is among the majority of states that hold that the law must treat gay and non-gay parents equally. The children in this case were happy and well-adjusted, doing well in school and in their other activities under their father's care. The appeals court found no reason to take them away from their father just because he is gay."
The decision by the Raleigh, N.C., Court of Appeals in Pulliam v. Smith was authored by Judge K. Edward Greene, with Judges Joseph R. John, Sr., and Mark D. Martin concurring only in the reversal of the lower court's ruling. As a result, Smith's sons must be returned to his home in Henderson, N.C.
Dohrn said, "Lambda, the oldest and largest lesbian and gay legal organization, successfully has helped lesbian and gay parents around the country who are threatened with losing their children's custody."
"Some gay parents still lose their children when sexual orientation issues influence court rulings," Dohrn said, noting Lambda's recent work for a Florida mother in a custody dispute with her ex-husband, who had been convicted of murdering his previous wife, and for Sharon Bottoms of Virginia. In both cases, the lesbian mothers lost custody of their children.
Smith raised his two sons since birth and had custody of the children following his 1991 divorce. Shortly after his partner moved in with him, his ex-wife, Carol Pulliam, sought and won a change of custody.
At trial, the lower court inappropriately allowed questions about and then relied on the details of the men's sex life, although it deemed irrelevant the mother's similar testimony about her sex life. Custody of the boys, now 8 and 11, was shifted in June of 1995.
"The father is enormously happy and looks forward to continuing to be the good parent that he was before his and his son's lives were torn apart," Thompson said. Smith declined to make a public statement.
Dohrn and Thompson co-authored the brief with Steve Tannenbaum, a Lambda volunteer attorney, and Ellen Gerber of NC GALA.
Lambda, with a national headquarters in New York City, has regional offices in Chicago and Los Angeles and will open a Southern Regional Office in Atlanta in 1997. NC GALA is a legal organization that supports lesbian and gay rights throughout North Carolina.