Whether the Court of Special Appeals was correct in reversing the decision of the trial court to restrict Mr. Boswell's visitation rights on the ground that requiring his life partner to be absent during visits was not based on any evidence that the restriction was necessary to promote the best interests of the children?

ARGUMENT

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The Maryland Court of Special Appeals held that, as a matter of law, courts cannot presume that children's best interests are not served by visits with their father in the presence of their father's same-sex partner. The appellate court's decision is supported by the scientific research on parenting by gay men and lesbians and on their children. Scientific investigation has consistently found that gay fathers and lesbian mothers are as good parents as their heterosexual counterparts and that their children do not differ appreciably from children raised by heterosexuals.[2] Moreover, there is no empirical support for any presumption that a gay or lesbian parent's sexual orientation, or contact with that parent's same sex partner, is or will be harmful to the children. Thus, any assumption that restrictions on visitation are in the best interest of children is contrary to the relevant scientific research. Visitation decisions should be made on the basis of individualized, fact-based assessments without regard to sexual orientation.[3] 

I. GAY MEN AND LESBIANS ARE AS FIT PARENTS AS HETEROSEXUALS.

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Scientific research indicates that gay parents are little different from heterosexual parents.[4]  The research provides no support for any belief that gay men or lesbians lack the parenting instincts and ability of heterosexuals. Indeed, two researchers reviewing the scientific literature in this area concluded: "It is evident . . . that both lesbians and gay men who are parents are as sufficient in the roles as heterosexuals, and that the home life they provide is at least of equal quality."[5]  The research to date also provides no support for a presumption that children should be restricted from contact with the partners of gay or lesbian parents. To the contrary, there is evidence suggesting that integration of the gay or lesbian parent's partner into the family unit will generally have a positive effect.[6]  Thus, the scientific research provides no empirical support for any categorical presumption about custody or visitation on the basis of a parent's sexual orientation.

A. Homosexuality Is Not A Mental Disorder.

The psychiatric and psychological professions have long rejected the view that homosexuality is a mental disorder, based on extensive empirical research demonstrating that earlier assumptions about homosexuality cannot be justified by scientific observation.[7]  A quarter century ago, the American Psychiatric Association removed "homosexuality" from its list of mental disorders,[8]  declaring that "homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities."[9]  Following a rigorous review of the scientific evidence, in 1975, amicus APA adopted the same position, urging all mental health professionals to work to dispel the stigma of mental illness long associated with homosexual orientation.[10] 

In what is widely considered a landmark study on the subject, a researcher administered three projective tests to 30 homosexual and 30 heterosexual men matched for age, IQ, and education, none of whom were in therapy at the time. The results were evaluated by independent experts who were not told each subject's sexual orientation. The independent Rorschach experts evaluated the men's overall adjustment and found that two-thirds of each group were in the three highest categories of adjustment. When asked to identify which results were obtained from homosexuals, the experts could not distinguish the subjects' sexual orientation at a level better than chance. A third expert used the Thematic Apperception Test and MAPS Test responses to evaluate the psychological adjustment of the men and similarly found no statistically significant differences between the two groups. The researcher concluded from this data that "homosexuality as a clinical entity does not exist."[11]  Dozens of empirical studies have since supported the conclusion that "no correlation exists between sexual orientation and psychopathology.[12] 

Thus, any question about the fitness of gay men and lesbians to be parents, if based on a belief that their sexual orientation indicates psychological dysfunction, is entirely unfounded. No scientific evidence supports a view that gay men and lesbians are categorically incapable of being good parents or that they are less likely to be good parents. Like heterosexuals, gay men and lesbians are a highly diverse group, having many different backgrounds, interests, occupations, and experiences.[13] 

B. Gay Men and Lesbians Have Comparable Parenting Skills to Heterosexuals

Several studies have investigated the parenting philosophies and skills of gay men and have concluded that "gay fathers are similar to nongay fathers in their overall parenting abilities and skills."[14]  Such research suggests that the "gay fathers are at least equal to heterosexual fathers in the quality of their parenting."[15]  In fact, some investigators have found that gay fathers appear to make greater efforts to create a stable home environment and positive relationship with their children than heterosexual fathers.[16] 

One study found no differences between homosexual and heterosexual fathers in their degree of involvement with their children or in the level of intimacy they had with their children. The differences the study did find were that homosexual fathers were more likely to set and enforce limits on their children's behavior, were more responsive to their children's needs, and were more likely to explain the reasons for rules.[17] 

Another study comparing gay and heterosexual fathers' responses to standard measures of parental attitudes and responses concluded that "no discernible parenting style could be found to distinguish one group from the other"[18]  and that "sexual orientation of fathers is not a variable that significantly affects attitudes toward fathering nor responses to hypothetical child behavior."[19]  Similarly, a study comparing gay and lesbian parents to heterosexual parents found "no significant differences in the relationships of the two sets of parents with their children."[20]  With respect to gender identity and sex role aspects of parenting, "no differences were found" in the parents' encouragement of same-sex friends or in their encouragement of gender-typed toys for their own children.[21] 

There is an even larger body of research on lesbian mothers that compares their parenting skills and attitudes to those of heterosexual mothers. These studies consistently demonstrate a "remarkable absence of distinguishing features between the life-styles, child-rearing practices, and general demographic data" of lesbian mothers and heterosexual mothers.[22]  This research provides additional support for the conclusion that sexual orientation is not an important variable in predicting parenting ability.

For example, in one study of lesbian and heterosexual mothers, the two groups were found to be similar in maternal interest, current lifestyles, and child-rearing practices.[23]  Another study found that lesbian mothers scored comparably to heterosexual mothers on the Parent Awareness Skills Survey ("PASS"), a standard tool for measuring the effectiveness and sensitivity with which a parent responds to typical child care situations.[24]  Interestingly, in light of the concerns that have sometimes been expressed in custody and visitation contexts, lesbian mothers, as a group, have been found to be more concerned with providing male role models for their children than the comparison heterosexual mothers.[25] 

C. Gay Fathers and Lesbian Mothers Do Not Present a Heightened Danger of Sexual Abuse.

Scientific research also undermines an assumption sometimes expressed about gay fathers and lesbian mothers in the context of child-rearing, namely that they or their partners are more likely to be sexual abusers of children than heterosexuals. The research that has been done on this subject suggests exactly the opposite, that children are at far greater risk of abuse from heterosexual adults than from gay men or lesbians. For example, a study of all children seen for sexual abuse in a one-year period at a large urban hospital determined that less than one percent of the adult offenders that could be identified were gay or lesbian. Of the 219 abused girls, only one instance of abuse (0.4 percent) had been attributed to a lesbian. Of the 50 boys who had been abused, only one instance of abuse (2 percent) had been attributed to a gay man. In contrast, 88 percent of the offenders had documented heterosexual relationships and most were heterosexual partners of a family member (77 percent of those who abused the girls and 74 percent of those who abused the boys).[26] 

Researchers have concluded that "[g]ay parents and their lovers are involved in virtually no [reported] cases of child sexual abuse"[27]  and that the "evidence indicates that fears of child sexual abuse by gay fathers or their gay friends are not warranted."[28] 

II. CHILDREN RAISED BY GAY OR LESBIAN PARENTS DO NOT DIFFER PSYCHOLOGICALLY AND SOCIALLY FROM CHILDREN RAISED BY HETEROSEXUAL PARENTS.

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Research indicates that the sexual orientation of parents is not a predictive factor in the psychological and social development of their children. In the last two decades, a number of studies have been conducted on children of gay or lesbian parents. First, contrary to sometimes expressed fears, the research shows that children raised by, or otherwise regularly involved with, gay or lesbian parents are no more likely themselves to be homosexual than children raised by, or regularly involved with, only heterosexual parents.[29] Further, as researchers concluded from a review of the scientific literature: children raised in gay or lesbian households are just as likely to be well-adjusted as children raised in heterosexual households.[30] 

A. Sexual Orientation

Research into the sexual orientation of children of gay or lesbian parents indicates that these children are no more likely to be homosexual themselves than children of only heterosexual parents.[31]  For example, a study of 82 sons (17 years or older) of 55 gay or bisexual fathers concluded that only seven (nine percent of those for whom information about sexual orientation could be obtained) were not heterosexual (i.e., either bisexual or homosexual).[32]  Furthermore, the sons' sexual orientations were unrelated to the amount of time they spent living with their fathers, the frequency of their contact with their fathers, the degree to which they accepted their father's sexual orientation or the quality of the father- son relationship.[33] 

In another study of 40 gay fathers and their children, in which fathers were asked to report on the sexual orientation of those children who were old enough to be assessed, the fathers reported that one of 21 sons was gay and three of 27 daughters were lesbian.[34]  These findings corroborate other research indicating that neither sons nor daughters of gay men are disproportionately likely to be homosexual.[35] 

Similarly, studies of children raised by lesbian mothers have found that these children "are generally no more likely than their peers from heterosexual mother families to identify themselves as gay or lesbian or to be attracted to someone of the same gender."[36]  A study comparing adult sons and daughters, some of whom had been raised by lesbian mothers and others by heterosexual mothers, found that the two groups did not differ significantly with respect to sexual orientation.[37]  A study comparing only adult daughters of lesbian and heterosexual mothers also found no statistically significant difference between the percentage of lesbian children in the two groups.[38]  Other studies of children raised by a lesbian parent or couple have likewise found no statistically significant difference between these children's expressed sexual orientation and that of children raised by a heterosexual parent or parents.[39] 

Thus, researchers have concluded: "The truth is that most children of homosexual men and women turn out to be heterosexual."[40]  A reverse study of the sexual orientation of 702 parents of gay men and lesbians revealed that 90 percent of the parents were heterosexual, 4 percent were bisexual, and only 6 percent were homosexual.[41] 

B. Psychological Development and Social Adjustment

As relatively few fathers generally, let alone gay fathers, have historically received custody of their children, research on children raised by homosexual parents has focused mostly on children being raised by a lesbian mother (and in many cases her partner). The consistent conclusion drawn from these studies is that the children demonstrate no appreciable differences in intellectual development[42]  or in psychological well-being or social adjustment from children raised by heterosexual parents.[43]  Fewer studies have been made of children of gay fathers, but the results of those studies are consistent with the studies of children of lesbian parents.[44] 

Although concern is sometimes voiced that children of gay men and lesbians will suffer dysfunction as a result of their parents' sexual orientation, research does not bear this out.[45]  Rather, two scientists reviewing studies in this area commented:

The most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings. The second most striking feature is how similar the groups of gay and lesbian parents and their children are to the heterosexual parents and their children that were included in the studies.[46]