ANNAPOLIS – An attorney for a divorced mother argued to Maryland’s highest court Wednesday that her ex-husband’s gay partner should be banned during her children’s visits, because of his negative impact on them.
In 1996, an Ann Arundel County judge ordered Robert G. Boswell to keep his partner and any other gay persons away from his two children during their visits. The judge also prohibited all overnight visits.
Maryland’s Special Appeals Court overturned the restrictions in October 1997.
The case now before the Court of Appeals is of special interest to gay rights groups, since homosexual marriages are illegal.
“You can’t get away from the series of presumptions being made, and that being around gay people is something that the court wants to restrict,” Beatrice Dohrn, an attorney for the gay rights group, the Lambda Legal Defense and Education Fund, said after the hearing.
The case’s outcome also could affect unmarried heterosexual couples.
Cynthia E. Young, attorney for mother Kimberly Y. Boswell, said a ban on the partner’s presence should be reinstituted because Boswell’s son, 7 at the time of the original case, expressed discomfort with his father’s living situation.
Young argued the partner’s presence hurts the father-son bond, even though there is no evidence of actual harm.
“Do we have to wait until the child is emotionally traumatized to restrict visiting conditions?” asked Young after the hearing. “Visitation is for the benefit of the child, so if the child is saying, `I don’t enjoy visitation when this person (the father’s partner) is around,’ then we need to act before there is actual harm.”
Nancy Polikoff, attorney for the father, who lives in Glen Burnie, argued actual harm must be shown in order to deprive the father of his constitutionally guaranteed lifestyle.
Polikoff said the son’s discomfort could be expected in any divorce situation in which a parent develops a new relationship. She added the son is adjusting well.
Several times Wednesday, Young denied that the father’s sexual orientation is a factor in the case.
But ACLU lawyer Dwight Sullivan said Circuit Court Judge Lawrence H. Rushworth’s order shows that homosexuality is an issue in the case.
“Would the judge in an analogous case say to a heterosexual parent, `Limit your contact with members of the opposite sex?’ ” Sullivan said. “I don’t believe these sorts of orders are common.”
The father is now visited by his son and daughter, 10 and 7, on alternate weekends, every Wednesday afternoon and several holiday weeks each year, as decided in the original 1995 divorce settlement.
In an April 1996 hearing, the son told Rushworth that he felt bothered by seeing his father and partner sleeping face-to- face.
Dr. Kay Standley, a psychologist who regularly saw the children and an expert testifying for the mother, said the children would be relieved should the partner “suddenly disappear,” according to the court record.
Polikoff said the Circuit Court order resulted from Rushworth’s bias against unmarried couples.
Several Appeals Court judges introduced the idea Wednesday of sending the case back to the trial court, with a different judge, to give the mother a chance to present evidence that actual harm would come to the children through unrestricted visits.
Young said her client did not want a new lower-court trial.