Hertzler v. Hertzler

908 P.2d 946
Brief Filed: 12/94
Court: Supreme Court of the State of Wyoming
Year of Decision: 1995

Read the full-text amicus brief (PDF, 317KB)

Issue

Whether the "best interests of the child" is served by restricting visitation rights to a minimum level due to a mother's sexual orientation as a lesbian

Index Topic

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

Facts

Pamela and Dean Hertzler were married for 15 years. During the marriage, they adopted two children. Pamela initiated divorce proceedings after determining that she was a lesbian. After the divorce, Pamela was awarded custody of the two children. She later moved to Ohio to live with her partner, Peggy Keating. In order to move, she agreed to transfer custody to Dean, with the understanding that she would be allowed liberal visitation as was the case for Dean when she had custody. After Dean remarried, he filed a petition to modify the visitation arrangement and filed a motion for a temporary restraining order. He alleged that the children had been harmed by contact with their mother and her domestic partner. Based on Dean's allegations, the court issued a temporary restraining order that limited Pamela's contact to supervised visits and disallowed any contact between the children and Peggy. The court determined that the children had been exposed to inappropriate sexual behavior and had become eroticized. The judge relied on the testimony of Mr. J. Lynn Rhodes, a former minister who recently received his master's degree in counseling and who admitted during trial that his religious beliefs regarding homosexuality affected his opinions in the case. The judge rejected the opinions offered by plaintiff's experts, Dr. Carol Jenny, director of the Child Advocacy and Protection Team at Children's Hospital Denver, and Dr. Larry Bloom, a licensed clinical psychologist with 20 years experience in evaluating family interaction and dynamics. The court held that homosexuality is generally socially unacceptable, and it is probable that the children will be subject to social difficulties as a result of the plaintiff's lifestyle in addition to their personal concern. The court stated it would find it appropriate to reduce the plaintiff's visitation with the children, even if issues of sexual abuse or eroticization were resolved, because (1) the plaintiff's open homosexuality was likely to create confusion and difficulty for the children; (2) her lifestyle was likely to negatively affect the development of the children's moral values; and (3) the state had an interest in supporting conventional marriages and families. Pamela appealed to the Supreme Court of Wyoming.

APA's Position

APA submitted a brief arguing that: (1) the social science research (a) has reported no significant differences between children raised by lesbian mothers or gay fathers and those raised by heterosexual parents, (b) indicates that 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) reports no differences between the social relationships of children raised by lesbian mothers or gay fathers and children raised by heterosexual parents, and (d) does not suggest that a parent's sexual orientation influences the sexual identity of his or her child; (2) the social science research does not suggest that lesbian mothers and gay fathers are likely to be unfit parents; and (3) visitation cases should be decided without regard to a parent's openly lesbian or gay relationship because (a) an assumption that a child should not have significant contact with a parent in an openly lesbian or gay relationship undermines Wyoming's statutory mandate that visitation determinations be based on the welfare of the child, and (b) the trial court's reference to a state interest in supporting conventional marriages and families does not provide an appropriate basis for restricting a parent's visitation rights.

Results

The Wyoming Supreme Court affirmed the trial court, but strongly criticized the judge for indulging in personal biases against homosexuality and ordered the court to continue to ease the limitations on Pamela's visitation times.