Lesbian Mom Loses Custody

Controversial expert witness raises specter of homophobia in decision

The Mississippi Court of Appeals voted 8-1 to uphold a decision by the Rankin County Chancery Court to transfer custody of two young girls from their lesbian mother to their father. The February 1 decision was premised almost entirely on the “exposure” of the girls to their mother’s “lesbian lifestyle,” and the opinion of an “expert witness” that this would have a detrimental effect on the mental health of the girls. Since testifying in this case, the “expert” has had his license revoked by a state regulatory agency, but there is no indication in the court’s opinion that this was brought to their attention.

According to the opinion for the court by Judge T. Kenneth Griffis, Edwin Coit and April Davidson were married in 1991 and divorced at the end of 1997. At the time of their divorce, they had agreed to joint legal custody, with the girls living with Davidson and Coit having liberal visitation privileges. Davidson’s lesbian identity was known to Coit and to the court at that time, but apparently it did not become an issue for Coit until the girls got a bit older and began to comment about their mother’s girlfriends.

In August 2001, Coit filed a motion with the local court to modify the custody order on two grounds: that the children were being “exposed” to Davidson’s “lesbian lifestyle,” and that Davidson’s girlfriends and mother were actually raising the children without much participation from Davidson, who worked all day and allegedly spent very little time with the girls when she was not working.

After a preliminary hearing, Chancery Judge Thomas Zebert issued a temporary order taking the girls out of their mother’s home and putting them in Coit’s custody. After some follow-up hearings, Zebert made the change permanent. Griffis’ opinion does not mention Davidson’s visitation rights. Davidson appealed the custody decision.

The most important testimony supporting the change in custody apparently came from Paul Davey, described by Griffis as a “qualified expert in the area of adolescent, child and family therapy,” who had inspected the children’s home and deemed it unsuitable. Davey particularly emphasized that the older child was becoming more aware of her mother’s living arrangements, including her sharing a bed with her lesbian partner and the two women watching sexually related programs on television.

“When she was young, it was something that was merely noticed,” testified Davey, “and now there is more than just notice on Marilyn’s part. She is paying attention to the fact that her mother is sharing the bed with another woman.”

According to a Web site maintained by Mississippi parents who contend that Davey has falsely testified against them in cases involving issues of child abuse, among other things, Davey has achieved a significant measure of notoriety in Mississippi as a professional “expert witness” whose views are disputed by other professionals in his field. In a March 2003 decision, the Mississippi State Board of Examiners for Licensed Professional Counselors, ruling on ethics charges, found that Davey’s violations of professional ethics, including false testimony and basing conclusions on tests that he had never performed, merited revoking his license.

Unfortunately, under the Mississippi licensing law, all this means is that he cannot represent himself as a licensed practitioner, which does not prevent him from practicing as a “counselor” and, perhaps, continuing to do damage as an “expert witness.” Sources allege that Davey has become very close to particular judges who frequently appoint him as the court’s “expert,” including Chancery Judge Zebert.

Based largely on Davey’s testimony, the Court of Appeals found that there was “substantial evidence” in the hearing record from which Zebert could conclude that the best interest of the girls would be served by transferring custody to their father. Davidson had argued that under Mississippi law an initial custody decision is not supposed to be changed unless there are changed circumstances. She pointed out that the fact of her sexual orientation was known at the time of the divorce, and she was actually living with a same-sex partner then. But the court found, partly due to Davey’s testimony, that as the girls grew older, the situation changed, and that Davidson exacerbated it by having had three different live-in partners over the intervening years.

As if to disavow any homophobia in the decision, Judge Griffis raised cases in which a custodial parent had a series of opposite-sex live-in partners, and claimed this one was no different. But it was clear that to the court the issue was Davidson “exposing” her children to her “lesbian partners” and to the “sexual nature of her intimate relationships.” “The exposure was the substantial change in circumstances since the original custody decree,” wrote Griffis. “The fact that Coit and the court knew that Davidson was a lesbian did not give her permission to expose the children to any of her sexual relationships.”

Furthermore, Mississippi law requires finding that the “changed circumstances” have a detrimental impact on the children. The appellate court found that Davey’s testimony was sufficient to establish that.

Davidson argued that Judge Zebert had given undue weight to one of the factors that Mississippi courts are supposed to examine, the “moral fitness” of the parents, and also had improperly violated Davidson’s right to free exercise of religion by ordering her to take the children to church. In his decision, Zebert specifically faulted Davidson for not taking the children to church.

Chief Judge Leslie King wrote that Zebert may have crossed the line regarding the religious observance point. But none of the other judges joined this partial dissent.

Davidson could appeal this ruling to the Mississippi Supreme Court, which does not have a record favorable to lesbian mothers seeking custody of their children.