Boswell v. Boswell

721 A.2d 662
Brief Filed: 7/98
Court: Court of Appeals of Maryland
Year of Decision: 1998

Read the full-text amicus brief (PDF, 355KB)

Issue

Whether a gay father may be denied overnight visitation with his children and visitations in the presence of his male partner

Index Topics

Gay, Lesbian, and Bisexual Parenting; Sexual Orientation (visitation)

Facts

In a custody hearing, the trial court had restricted the former husband's visitation with his children, prohibiting overnight visitation, the presence of the father's male partner and the presence of "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship." The restrictions were not requested or advocated by any partner or witness in the case. The Court of Special Appeals of Maryland ruled that the restrictions were an abuse of discretion by the trial court judge and vacated that aspect of the decision. The mother appealed to the Court of Appeals of Maryland (the highest state court).

APA's Position

APA submitted an amicus brief with the National Association of Social Workers on behalf of the respondent father. The brief asserted that: 1) homosexuality is not a mental disorder; 2) gay men and lesbians have comparable parenting skills to heterosexuals; 3) gay fathers and lesbian mothers do not present a heightened danger of sexual abuse; 4) therefore, gay men and lesbians are fit parents to the same extent as heterosexuals; 5) children raised by gay or lesbian parents do not differ psychologically and socially from children raised by heterosexual parents; 6) research does not indicate that exposure of children to their father's same-sex partner generally has negative effects and there is evidence that involvement of the partner in the children's lives may, in fact, be beneficial to them.

Results

The Maryland Court of Appeals affirmed, finding that the divorce court's order was an abuse of discretion. The court followed other jurisdictions in requiring a showing of actual or potential harm to the children before a parent's visitation may be restricted based on his or her non-marital relationship, whether homosexual or heterosexual. Additionally, the trial court must make specific findings based on sound evidence rather than basing a ruling to restrict visitation on stereotypes or bias.