Bottoms v. Bottoms

457 S.E.2d 102 (1997) WL 421218 (on appeal after remand)
Brief(s) Filed: 11/93 (Va. Ct. App.); 12/94 (Va. S.Ct.)
Courts: Virginia Court of Appeals; Supreme Court of Virginia
Year of Decision(s): 1995

Read the full-text amicus brief

Issue

Whether a lesbian biological mother could be denied custody of her child on the grounds that her sexual orientation rendered her unfit as a parent

Index Topics

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

Facts

Kay Bottoms sought custody of her grandson because his mother, Sharon Bottoms was a lesbian and was raising the boy in the home she shared with her lesbian lover. The trial court held that because she was a lesbian, Sharon Bottoms was per se unfit to raise her son and awarded custody to the grandmother. APA submitted a brief at the appellate level and the trial court's decision was reversed. The grandmother appealed to the Supreme Court of Virginia.

APA's Position

APA submitted a brief to the Supreme Court of Virginia arguing that: (1) social science research indicates that (a) there are no significant differences between children raised by lesbian mothers or gay fathers and those raised by heterosexual parents, (b) the overall psychological health of children raised by lesbian mothers or gay fathers does not differ from that of children raised by heterosexual parents, (c) no differences have been reported between the social relationships of children raised by lesbian mothers or gay fathers and children raised by heterosexual parents, (d) a parent's sexual orientation does not influence the gender identity, gender role behavior, or sexual orientation of his or her child, (e) lesbian mothers and gay fathers are not likely to be unfit parents, and (f) lesbian mothers and gay fathers have parenting skills comparable to those of heterosexual parents; (2) professional social science organizations have rejected the view that lesbians and gay men as a group are dysfunctional; (3) a natural parent in an openly lesbian or gay relationship is entitled to the presumption of parental fitness; and (4) the fact that sodomy continues to be punishable as a felony under Virginia law is not grounds for depriving a lesbian or gay parent of custody.

Results

The Supreme Court of Virginia held that there was sufficient evidence to support the trial court's findings that a presumption in favor of mother's custody was rebutted by clear and convincing evidence of unfitness and that the child's best interests would be served by awarding custody to the grandmother. It found that felonious sexual conduct inherent in lesbianism was an important consideration in determining the mother's unfitness for custody of the child, and that the child's cursing, emotional upset at visitation with the mother, and standing in a corner proved that the child had been harmed by the mother's living conditions. Visitation was also set by the lower court and was appealed by the mother. The Virginia Supreme Court reversed the decree dismissing the mother's "show cause petition" and substantially modifying the terms of visitation that prohibited all contact between the child and the mother's lover. The Court held that the trial court had improperly based its disposition of the visitation decree solely on the mother's sexual status, ignoring evidence of the pertinent statutory factors and without regard to the evidence of impact of the attendant conduct on the child.