Appeals court sides with lesbian mother

The Associated Press

ST. LOUIS -- A Missouri appeals court has tossed out a judge's ruling that limited a mother's overnight visitation with her daughter to when the woman wasn't sleeping with her lesbian partner, saying there's no proof such a condition was best for the child.

Tuesday's ruling by a Missouri Court of Appeals panel ordered the case reheard by a Franklin County judge, declaring there was no evidence at trial that Rachel Dickens' lesbian cohabitation endangered the health or impaired the emotional development of the child, now 6.

Nathan Cohen, a St. Louis-area attorney for Dickens, called the ruling "courageous" in declaring "that who you sleep with won't be dispositive to a custody case."

The ruling reflects "that the court was wrong to incorporate her lifestyle as a basis of its court order without evidence it had any negative impact on the child," he said.

An attorney for David Gould, the child's father, did not return messages seeking comment, including whether his client would appeal.

The appellate ruling came the same day Missouri voters -- in balloting closely watched by national groups on both sides -- solidly endorsed a state constitutional amendment banning gay marriage.

Missouri was the first state to consider placing the restriction in its constitution since Massachusetts' high court ruled last year that gay couples have the legal right to marry in that state.

Dickens gave birth to the girl in December 1997 and was not married to the Gould, who in April 2001 sued for sole legal and physical custody of the girl and a court order allowing only supervised visitation for Dickens.

Dickens countersued for custody of the girl in a case in which both parents accused the other of unsubstantiated sexual abuse involving the child.

Dickens has lived with her partner since about the fall of 2000. The following April, Gould applied for and got a child-protective order based on allegations that the daughter saw her mother and her partner "engage in a sexual act," though Gould later recanted those charges in a written statement, the appeals court said.

In May 2003, Franklin County Circuit Judge Gael Wood ordered primary custody of the girl to Gould, finding that "(Dickens') right to overnight visitation shall be subject to the condition that (the woman's partner) not occupy a bedroom with (the mother) under the same roof with the minor child."

Wood denied Dickens' requests for child support, necessary expenses and attorneys' fees and ordered her to pay $343.58 a month in child support.

On appeal, Dickens argued, among other things, that the restrictive overnight visitations violated her constitutional rights to due process and equal protection, given the absence of evidence at trial that such a condition was in the child's best interest.

"We agree and reverse and remand for a new trial," including over child-support matters, Shaw wrote.

Such cases have not been uncommon. In 1995 in Florida, lesbian Mary Ward lost custody of her 12-year-old daughter to her ex-husband, even though he had murdered his first wife. A judge ruled that he wanted to give the young girl a chance to live in "a non-lesbian world."

Ward appealed, arguing the judge changed custody just because she was a lesbian. A Florida appellate court later disagreed, saying there was evidence the daughter was being harmed by conduct she was exposed to in her mother's home.

Ward died of a heart attack in 1997. Six months later, the Florida appeals court, in a one-paragraph order, dismissed Ward's appeal and withdrew its 1996 decision unfavorable to the woman.

"We definitely consider this a victory because the decision which upheld the trial court's order is a very bad precedent, a very bad example for trial courts to follow," Ward's attorney, Charlene Carres, said then.