Gay Dad Loses Despite Pro-Gay Rhetoric

Idaho Supreme Court grants ex-wife’s custody claim

In a curiously mixed decision, the Idaho Supreme Court ruled on September 22 that a parent’s sexual orientation cannot be the basis for making a child custody or visitation decision, but then turned around and upheld the trial judge’s decision to terminate the gay father’s joint custody and impose limitations on his visitation, mainly because he is living with a same-sex partner.

Indeed, the wife’s petition to change custody specified the father’s sexual orientation and living with a same-sex partner as the reason to modify custody. The result drew a sharp dissent from one member of the court, who accused the majority of failing to follow its own ruling.

Theron and Shawn McGriff, married for seven years and with two daughters, divorced in 1997, with the court ordering joint custody. Under the ruling, the daughters divided their time each week between the home of their mother, Shawn, and their father’s house. In late 2000, Theron’s gay partner, Nick Case, moved in with him.

When Shawn found out about this, she filed a petition to modify custody, alleging that “events have occurred with respect to his intimate relationship with a person of the same sex which have completely changed the circumstances, such that it is no longer in the best interests of the girls that they spend one-half of the overnights each week with him.” Shawn also alleged that Theron “has failed to deal with his homosexuality in a responsible and emotionally stable manner.”

Shawn sought primary physical custody, with alternate weekend visitation for Theron, and she also sought an order requiring Theron to “seek professional assistance in dealing with his homosexuality and the manner in which his homosexuality is explained to the minor children.”

The Bonneville County magistrate judge, Mark Riddoch, appointed Dr. Mark Corgiat to perform a parenting evaluation for the court. Corgiat found both were good parents, but that their anger with each other had produced undesirable conduct, at times in front of the children. He also found that the children did not want a change in the custody arrangements. He recommended counseling for the parents.

Theron filed a cross-petition with the court, asking that he be given primary physical custody with Shawn getting the alternate weekend visits.

Riddoch dismissed both parents’ petitions and ordered both parents to attend counseling. However, Theron posed demands that prevented the counseling from taking place and Riddoch reasserted jurisdiction, holding hearings at which Shawn alleged that Case, Theron’s partner, had harassed her with hang-up calls at home and work and made false charges against her to the police. Riddoch concluded that Shawn, as the parent more willing to cooperate, should get primary physical custody, and that Theron’s alternate weekend visitation be limited so that Case would not be present.

Theron appealed, arguing that Riddoch ruled against him because of his sexual orientation.

Justice Linda Copple Trout, writing for the Supreme Court, found that it would be improper for a custody or visitation decision to be based on a parent’s sexual orientation, an historic ruling for Idaho, apparently influenced by the U.S. Supreme Court’s 2003 sodomy ruling.

But then Trout turned right around, noting that Riddoch had disclaimed basing his decision on Theron being gay, and ruled that there were sufficient grounds other than Theron’s homosexuality to support the lower court decision. Trout focused on Theron’s resistance to the parental counseling, the argument that the mid-week change in residence each week had a disruptive effect on the children and Shawn’s greater willingness to cooperate with counselors and avoid conflict. That made her the preferable custodial parent, in the court’s eyes.

As to the visitation limitations, the court placed primary responsibility on Case for acting inappropriately with Shawn and provoking Riddoch guidelines. Corgiat, the evaluator, had “strongly” recommended “that Nick Case stay out of the relationship between Theron and Shawn, noting Case’s hostility toward Shawn.

Justice Wayne Kidwell sharply dissented from the result, arguing that his “review of the record, the pleadings and oral argument before this Court make it clear that Theron’s sexual orientation was wrongfully taken into consideration by the lower court and now the majority opinion.” Kidwell noted that the only ground specified by Shawn in seeking the custody change was that Theron was gay and had a same-sex partner living with him. Kidwell also noted that Corgiat recommended against modifying custody,

Objecting to the limitations on Theron’s visitation rights, Kidwell characterized as “disingenuous” the majority’s claim that it was not ruling based on Theron being gay.

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