Nebraska Court Rejects Anti-Gay Custody Defense

LINCOLN -- The Nebraska Court of Appeals has upheld a ruling that denied a father's attempt to modify a custody agreement because his ex-wife had been involved in a lesbian relationship.

On June 13, 1995, Thomas Hassenstab filed a custody modification petition in the Douglas County District Court claiming, among other things, that his ex-wife's relationship with another woman entitled him to custody of his child. The District Court dismissed his custody modification request.

The case was appealed shortly thereafter, and today two appeals court judges agreed with the District Court judge that custody of the child should remain with Carol Hassenstab.

The court's opinion begin by setting forth the premise that "the Nebraska Supreme Court has repeatedly held . . . that a parent's sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity."

The court then determined that this rule applied to homosexual relationships as well as heterosexual relationships. Applying this test to the facts presented at the District Court level, the Court of Appeals found no evidence that the Hassenstab's child had been adversely affected or damaged by her mother's relationship with another women.

"These judges did nothing spectacular, they simply applied the law in an equal, fair and just manner which is exactly what they are suppose to do, and exactly what Nebraskans expect them to do" said ACLU Nebraska Executive Director Matt LeMieux. "There is no reason why parents in a gay or lesbian relationship should be treated differently under Nebraska's custody laws."

Judge Edward E. Hannon took a different approach in his dissent. In Judge Hannon's view, the child should have been removed from the mother because she had engaged in a homosexual relationship.

Based on testimony from the lower court, Judge Hannon concluded that the family, both Thomas and Carol Hassenstab, considered homosexuality as being a serious moral wrong in conflict with their Catholic beliefs.

Based on this finding, the judge wrote "Carol has obviously set a horrible example," justifying the removal of her children. Hannon's opinion concluded that "If a parent commits serious and prolonged moral indiscretions in such a way that his or her child will learn them, it is foolish to think the moral education of that child will not be seriously damaged. I think the record shows Carol's conduct will necessarily impair (her child's) moral training. . . ."

LeMieux said the dissenting opinion was nothing more than an attempt to treat gays and lesbians differently under the law.

"Judge Hannon attempted to cloak his disdain for Ms. Hassenstab's sexual orientation by claiming Ms. Hassenstab was not living in accordance with her Catholic beliefs and by extension her own moral code," LeMieux said. "This type of reasoning could have set a dangerous precedent.

"Under Judge Hannon's reasoning, a parent who believes abortion is wrong based on his or her Catholic beliefs but is pro-choice could have his or her child taken away because of the pro-choice stance," LeMieux added. "Such reasoning is preposterous." "Thankfully, the other two judges decided to apply the law instead of making moral judgments."

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