Strictly speaking, this is a bit outside the ordinary bounds of my blog–it’s not about who is a parent. Instead, it’s about what restrictions court’s can place on parental conduct. This is a subject I care about and it’s not that far afield, so I’m going to discuss it.
A new case out of Georgia concerns the sorts of limitations that can be placed on the visitation granted to a gay father. Eric and Sandy Mongerson were married for over twenty years and had four children. When they divorced, the court granted custody of the kids to Sandy Mongerson, allowing Eric Mongerson visitation. But by then Eric Mongerson was known to be gay and his visitation was subject to an important restriction: He was prohibited from “exposing the children to his homosexual partners and friends.”
Now restrictions on visitation are typically justified by reference to the well-being of the child. So the rationale for a blanket restriction like the one imposed here is that simply being around members of the lesbian and gay community who happen to be friends of the father will be harmful to the children. The lower court accepted this rationale and imposed the restriction. (I gather is is quite clear that the wife has no lesbian or gay friends, for there is no similar restriction on her.)
It’s worth thinking about what a restriction like that might actually mean. I suppose you’d have to interrogate each friend who came to the door to make sure she/he was not lesbian/gay before letting them in? There’s some discussion of that in this piece from earlier on in the litigation.
Today the Georgia Supreme Court reversed and vacated that restriction, without dissent. The Court specifically rejected the imposition of such a restriction without evidence of harm. As the Court put it:
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
For many years a courts were fully prepared to assume that just being around lesbian and gay people was bad for children. Thus, a clear statement rejecting that assumption, and instead requiring evidence , like the one above, is indeed a step forward. (I’ve written at length on this topic, and you can read that paper here. You’ll need to register, but it is free.)
You can also see how important it is that Eric Mongerson is a parent. As such, he benefits from the strong presumption that it is good for children if their parents participate in their upbringing.
One final note and then a question–while Mongerson is now allowed to have lesbian and gay friends over, it’s not so clear to me he could have a lover in the house. It appears that the court imposed a second restriction (not challenged here) on the presence of anyone not related by blood or marriage overnight.
This restriction was imposed on both parents. But of course, the wife, who is heterosexual, could remarry and then her new partner could spend the night in the house. No such option exists for the husband.