In the Interest of R.e.w.: Visitation Rights of Homosexual Parents in Georgia - Allison Strazzella Brantley

• Publication year: 1997

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In the Interest ofR.E.W.i Visitation Rights of Homosexual Parents in Georgia

In a 1996 case, In the Interest of R.E.W.,¹ the Georgia Court of Appeals addressed an issue of first impression concerning the visitation rights of a noncustodial homosexual parent.² The court set a tolerant precedent when it awarded the noncustodial homosexual father unsupervised visitation rights with his child.³

I. Factual Background

R.E.W.'s parents were divorced in 1988 after R.E.W.'s mother discovered R.E.W.'s father engaging in sexual acts with another man in the marital bed.⁴ Pursuant to the divorce agreement, custody of their three-year-old daughter was awarded to the mother, and the father was allowed only supervised visitation in the paternal grandmother's home.⁵ In November 1993, the father filed a petition in superior court to modify the final divorce decree. He sought visitation privileges that included unsupervised visitation with his daughter.⁶ The matter was referred to the juvenile court pursuant to section 15-ll-5(c) of the Official Code of Georgia Annotated ("O.C.G.A.").⁷ The juvenile court entered an order extending the weekend visitation period, but refused to allow unsupervised visitation.⁸ The juvenile court based the denial of the father's request for unsupervised visitation on the finding that the father was currently engaged in an immoral, homosexual relationship and that the father could not be trusted to keep his sexuality from his daughter.⁹ The father had been engaged in a four year monogamous homosexual relationship, and he and his partner owned a home together in which they lived.¹⁰ The court concluded that the father was untrustworthy because he engaged in a homosexual act while he was married.¹¹

The Georgia Court of Appeals granted the father's application for a discretionary appeal.¹² The court of appeals found that unsupervised visitation with the noncustodial, homosexual parent was in the best interest of the child.¹³ The court reversed the order of the juvenile court and remanded with a direction that the court grant unsupervised visitation between the homosexual father and his daughter.¹⁴ The Supreme Court of Georgia denied the mother's petition for a writ of certiorari.¹⁵ Justice Carley wrote a strong dissent, however, claiming that certiorari should have been granted and that the court of appeals erred in its resolution of the case.¹⁶

II. Legal Background

In Georgia, the best interest of the child is the standard for deciding visitation rights of a noncustodial parent.¹⁷ Although the courts recognize that parents have a natural right of access to their children, the best interest of the child standard requires that the court only consider the child's welfare.¹⁸ The best interest of the child standard gives the trial court broad discretion in deciding parental visitation rights.¹⁹

With this broad discretion, Georgia courts have sought to achieve the best interest of the child by instituting certain restrictions and limitations on visitation.²⁰ Restrictive visitation rights have been instituted in Georgia when there is a concern that the noncustodial parent may abduct the child,²¹ when there is evidence that a noncustodial parent may have sexually abused the child,²² or when the child voices anxiety and apprehension about visits with the noncustodial parent.²³

The court in Hayes v. Hayes²⁴ stated that a parent's immoral conduct may warrant limitations on parent-child contact only if the child was exposed to the undesirable conduct and that conduct would likely adversely affect the child.²⁵ Thus, the Georgia Court of Appeals refused to change custody of the children from the mother to the father on the basis that the mother was living with her boyfriend.²⁶

Although Georgia courts had dealt with some types of undesirable conduct, until the decision in R.E.W., the Georgia courts had not addressed visitation rights of a noncustodial, homosexual parent.

Other state courts that have addressed homosexual parents' visitation rights have taken different approaches in assessing the relevance of a parent's homosexuality in determining visitation.²⁷ Although applica- tion of the best interest of the child standard requires courts to look at the particular facts in each case, there are generally three positions courts have taken to decide the extent parents' homosexuality affects their entitlement to visitation.

The most liberal courts allow limited or restricted visitation only when there is evidence that the parent's homosexuality adversely affects the child.²⁸ These courts permit unrestrictive visitation, even if the parent openly engages in a homosexual relationship in the child's presence.²⁹

More moderate courts allow restrictions and limitations on visitation, such as supervised visitation, if the homosexual parent refuses to shield the child from the parent's homosexual practices.³⁰ The moderate view finds homosexuality to be an objectionable character flaw in the parents, but does not restrict visitation as long as homosexuality is not practiced in the presence of the child.³¹

The most conservative courts assume that exposure to a homosexual parent is not in the child's best interest, and they allow broad restric- tions and limitations to be imposed upon the visitation rights of a homosexual parent.³² These conservative courts employ preventative measures and allow restrictions even where there has been no evidence of harm to the child, and where the harm, if any, is unlikely because there is no evidence that the child has been exposed, or may be exposed, to the homosexual conduct of the parent.³³ Restrictions have included requiring visitations to occur outside the presence of a parent's lover,³⁴ forbidding overnight visitation,³⁵ and forbidding homosexual contact in the child's presence.³⁶

III. Rationale of the Court

In re Interest of R.E. W. raised the question of unsupervised visitation with a noncustodial, homosexual parent.³⁷ The Georgia Court of Appeals granted the homosexual father unsupervised visitation with the child, holding that unsupervised visitation was in the best interest of the child.³⁸

In its application of the best interest of the child standard, the court recognized Georgia's express policy to encourage a relationship between a child and the noncustodial parent.³⁹ The court cited their opinion of Hayes,⁴⁰ which held that a parent's immoral conduct may warrant limitations on the contact between parent and child only if the child is exposed to the undesirable conduct and the conduct has, or would likely have, an adverse effect on the child.⁴¹ In both Hayes and R.E.W. there was no evidence that either party committed sexual acts in the child's presence.⁴² The court noted that RE.W.'s father testified that he did not believe that his daughter's best interest would be served by informing her of the sexual nature of his relationship with his partner and that he would actively conceal his homosexuality from her.⁴³ The father's mother also testified that she did not know of her son's sexuality until the initiation of the present proceeding, and she had never observed any displays of affection between her son and his live-in lover.⁴⁴

The court then looked to other jurisdictions that had addressed visitation rights of homosexual parents and agreed to follow the jurisdictions that looked to whether the conduct of the parent would somehow harm the child.⁴⁵ The court held that "[v]isitation rights must be determined with reference to the needs of the child rather than the sexual preferences of the parent. The best interests of the child remain paramount."⁴⁶

Influenced by their own decision in Hayes and persuaded by the analysis used in other jurisdictions, the court found that unsupervised visitation with the homosexual parent would be in the...