ANNAPOLIS – An Anne Arundel County judge erred when he restricted a father’s custody of his children because the father was gay, the Maryland Court of Special Appeals ruled Wednesday.
Writing for the state’s second highest court, Judge Arrie W. Davis ruled that Circuit Court Judge Lawrence Rushworth “abused his discretion” when he denied Robert G. Boswell visitation with his two children in the presence of “anyone having homosexual tendencies or such persuasion … or with anyone that the father may be living with in a non-marital relationship.”
The ruling sends the case back to Ann Arundel County Circuit Court for a new determination of the custody arrangement.
The main factor in custody cases, Davis wrote, is the welfare of the child. Restricting custody is only acceptable if there’s clear evidence that some aspect of the parent’s behavior will do harm. But the trial never clearly showed that Robert Boswell’s sexual orientation posed such a danger, Davis wrote.
During the 1996 divorce trial, psychological experts for Kimberly Boswell testified that the pre-teen children were confused by Robert Boswell’s live-in boyfriend.
But social worker Marcia Kabriel told the court that the children had good relations with both parents and saw no problem with extensive visits with their father, according to briefs in the case.
Robert and Kimberly Boswell began divorce proceedings in 1994, citing his homosexuality and her extramarital affair, court records said. Both agreed on a custody arrangement granting Mr. Boswell custody one night a week and every other weekend.
But Rushworth’s decision altered that arrangement, something neither party requested, according to the briefs. Rushworth cited Boswell’s homosexual living arrangement as a disruptive influence to the two children.
The ruling “is exactly what we set out for,’ said Beatrice Dohrn, a lawyer with the Lambda Legal Defense and Education Fund Inc., who represented Robert Boswell. Boswell, a loan officer for car dealership, was represented for free by Dohrn’s organization.
Rushworth “imposed his own beliefs on what he thought should happen,” ignoring both existing child custody court precedents and the desires of both of the Boswells in making his decision, she said.
The father’s legal team continues to hope for an out-of- court settlement, saving the Boswells from going back to trial.
But for Cynthia E. Young, Kimberly Boswell’s lawyer, the court’s decision was neither a major defeat for her client nor a major victory for her former husband.
Satisfied with Rushworth’s original decision, Young said the judge based his ruling not on Robert Boswell’s homosexuality, but instead on the disruptive aspects of his live-in lover on children already confused by the break up of their parents.
Nor did Rushworth overstep his authority in modifying the custody arrangement, Young said. Judges have wide discretion in setting custody, she said, and needn’t follow the desires of either parent. As for her client’s next move, Young said “there are a number of possibilities of where to go next,” including asking the court to reconsider its decision. -30-