A lesbian mother’s sexual orientation was improperly considered in a child-custody case in Pierce County, the Washington State Supreme Court said Thursday.
The case involved a man and a woman from the Graham area who were married for about 20 years and raised their three sons in what court records described as a conservative Christian church.
According to those records, the wife told her husband in 2011 that she thought she might be gay, and filed for divorce in 2013. A Superior Court judge ultimately gave the husband primary custody of the kids.
“We are not confident the trial court here approached the parenting plan with an attitude of neutrality regarding sexual orientation that fairness demands,” Chief Justice Mary Fairhurst wrote for the majority.
There’s some evidence the husband is the more stable parent, the Supreme Court agreed, but the high court found Judge James Orlando relied heavily on a guardian ad litem, whose “report, recommendation, and testimony evinces an impermissible bias,” against the mother because of her sexual orientation.
Orlando followed many recommendations of the guardian ad litem, appointed to represent the children’s interests in the divorce:
He gave the husband sole decision-making authority about the children’s religion and education, and ordered the mother to “refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyle concepts” without approval of their therapist.
Some of the recommendations, the Supreme Court said, appeared in response to parental efforts, such as when the mother showed the oldest child a video about different Christian attitudes about same-sex relationships, after he asked her about the topic, and when the middle child asked her if he could wear her rainbow bracelet that said, “love and pride.”
In addition to attending a conservative Christian church, the children attended Christian schools. The kids’ therapist described them as “very sheltered,” and believed they would struggle to transition to public education, according to court records.
The therapist testified the 15-year-old son appeared “flat” and “still processing” when first told his mother was gay, the 12-year-old seemed to show he would love his mom no matter what, and the 7-year-old was too young to understand.
The guardian ad litem reported to Judge Orlando: “Concepts and ideals the children have been taught throughout their lives are being eviscerated.”
While she said she didn’t mean to judge or suggest the mother’s sexual orientation was a choice, the guardian ad litem wrote that the mother’s “lifestyle choice” to divorce, spend more time away from home and live with a different partner disrupted the family.
Her report also stated: “Ideas and beliefs that were learned over a lifetime cannot simply be disregarded. (The mother) needs to recognize that the children have to be afforded the opportunity to transition at their pace and thus far, I am not confident that she is prepared to let that happen.”
The husband was better able to provide for the children financially and emotionally, Orlando decided.
He noted in his ruling: “I believe it will be very challenging for them (the children) to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality.”
The ruling and the parenting plan indicate Orlando failed to remain neutral regarding the mother’s sexual orientation, and that he favored the husband’s religious beliefs, the high court said.
When the case goes back to Superior Court, it should go to a different judge, the majority wrote.
All but two members of the high court signed the majority decision.
In a concurring opinion by Justice Charles Wiggins and signed by Justice Debra Stephens, Wiggins said he agreed the case should be reassigned to a different judge — but to maintain an appearance of fairness, not because Orlando would be biased or unfair.
“The statements the majority found to be biased were not expressed by the judge in this case, but by the guardian ad litem” Wiggins wrote.
Orlando made it clear, Wiggins said, that the mother’s sexual orientation was irrelevant to his decision.