Rekindling a protracted legal fight for her child, Sharon Bottoms today returned to a Virginia courtroom fighting to preserve her family after it was shattered by a court decision that took away her son because she is a lesbian.
Bottoms is appealing a state circuit court decision that forbids any contact whatsoever between her five-year-old son, Tyler Doustou, and her life partner, April Wade. Under the judge's August 1996 order, Wade is strictly prohibited from seeing or talking to Tyler, even by telephone. The order also bars Bottoms from ever visiting with Tyler outside her home.
The American Civil Liberties Union, which represents Bottoms, presented oral argument to the Virginia Court of Appeals that the lower court's restrictions on Wade are unconstitutionally based on prejudice, and that visitation with Tyler should be expanded to preserve the family. The ACLU also cited uncontroverted evidence from a psychologist who said the current arrangement is harmful to Tyler.
"The lower court's visitation order hurts everyone, especially Tyler," said Donald K. Butler, a cooperating attorney with the ACLU of Virginia, who argued the case. "It is bad enough that Sharon had her child taken away just because she is a lesbian. But this order literally prohibits Sharon from even walking down the street with her own son. To top it off, the court offered no reason for ripping apart this family except that Sharon and April are lesbians."
In a 1993 ruling, a Virginia court took Tyler away from Bottoms and transferred custody to Tyler's maternal grandmother, Pamela Kay Bottoms. The court based its ruling on the belief that a lesbian is never fit to be a parent, despite a mountain of social research showing that the children of gay parents grow up as successfully as the children of heterosexual parents. (for research overview, see ACLU fact sheet on Lesbian and Gay Parenting.)
The decision was overturned on appeal, only to be reinstated in April 1995 by the Virginia Supreme Court. The majority opinion, which sharply divided the court, said that Tyler might suffer increased stigma as a result of having a lesbian mother -- a claim which again has been consistently rejected by social research. The state high court also indirectly invoked Virginia's criminal sodomy statute, suggesting that a lesbian is less fit to be a mother because she commits illegal acts.
After fighting the custody order for more than three years, Bottoms finally decided in August 1996 to drop the custody battle and focus on visitation. Under the initial 1993 ruling by Henrico County Circuit Judge Buford M. Parsons Jr., Wade was not allowed to be physically present during Tyler's visits, although she could maintain contact with Tyler by telephone. The ruling also forbade Tyler from visiting with Bottoms at her own home. As a result, the visits (scheduled between 10 a.m. Mondays and 6 p.m. Tuesdays) usually took place at the home of friends.
Upon learning that those friends were lesbians themselves, Judge Parsons changed the visitation order in August 1996 to confine the visits solely to Bottoms's home and nowhere else. In addition, Parsons further restricted Wade's access by barring any and all contact she had with Tyler. (The visitation calendar was also modified to every other weekend from 6 p.m. Fridays to 5 p.m. Sundays.)
Bottoms is seeking to remove the homebound restriction, and the portion barring any contact between Tyler and April. She is also seeking more time with Tyler, including on Mother's Day and other holidays, and the right to talk to Tyler's teachers so that she can be more involved in her son's schooling.
The ACLU, which presented oral argument before the Virginia Court of Appeals, said that Judge Parsons had violated the equal protection guarantee of the U.S. Constitution by discriminating against Bottoms because of her sexual orientation. The ACLU also argued that Parsons order was based on false assumptions about lesbian mothers -- a point affirmed earlier by testimony from a clinical psychologist who testified that the current visitation arrangement could negatively affect Tyler and his relationship with his mother.
"This is simply a case about a family trying to stay together," said Matt Coles, director of the ACLU's Lesbian and Gay Rights Project. "The question before the court is whether a family should be further torn apart because the mother is a lesbian, or whether the family bonds should be protected. I hope this court will prize family ties over anti-gay lies."
Lawyers for Sharon Bottoms are Matt Coles and Michael Adams of the national ACLU's Lesbian and Gay Rights Project; Mary Bauer of the ACLU of Virginia; and Donald K. Butler and Player B. Michelsen from the Richmond-based firm of Morano, Colan & Butler, who are both serving as cooperating attorneys for the ACLU of Virginia.