Conkel v. Conkel

• Citation: 31 Ohio App.3d 169,31 O.B.R. 335,509 N.E.2d 983
• Decision Date: 24 February 1987
• Docket Number: No. 85,85
• Court: United States Court of Appeals (Ohio)
• Parties: , 31 O.B.R. 335 CONKEL, Appellee, v. CONKEL, n.k.a. Brown, Appellant. CA 38.

Page 169

31 Ohio App.3d 169

509 N.E.2d 983, 31 O.B.R. 335

CONKEL, Appellee, v. CONKEL, n.k.a. Brown, Appellant.

No. 85 CA 38.

Court of Appeals of Ohio, Fourth District, Pickaway County.

Feb. 24, 1987.

Syllabus by the Court

1. The homosexuality of a parent should not result in a determination of unfitness per se so as to preclude visitation rights.

2. The denial of visitation should only be done when egregious conduct by the non-custodial parent results in harm to the child.

Robert H. Huffer, Circleville, for appellee.

James R. Kingsley, Circleville, for appellant.

GREY, Judge.

This is an appeal from the judgment of the Pickaway County Court of Common Pleas granting appellee overnight visitation with his children. We affirm.

The record reveals the following facts. Charles L. and Kim D. Conkel were married on October 14, 1972. Two children, both boys, one age ten, and the other age seven, were born as issue of the marriage. On July 2, 1981, the parties obtained a decree of dissolution which incorporated a separation agreement between the parties.

The separation agreement provided for reasonable visitation for the father, Charles L. Conkel. In October 1984, the court, acting on the motion of Kim D. Conkel (now Brown), set specific visitation for Conkel. In August 1985, Brown filed a motion to cite Conkel in contempt for his failure to pay child support, to increase child support, and to establish a garnishment procedure against his wages. Conkel, in turn, filed a motion to cite Brown in contempt for denying visitation and to enlarge his visitation time with his children. On September 3, 1985, the court held a hearing on the respective motions. On September 10, 1985, the parties filed a stipulation which stated in part that Conkel was bisexual, living with a male friend, and occasionally engaged in sexual acts with this friend. It was further stipulated that Conkel had never made any sexual advances toward his sons. In the court's judgment entry on the motions, Conkel was granted overnight visitation with his children but on the condition that Conkel was not to exercise his visitation in the presence of any non-related male person.

Brown appeals the trial court's order of overnight visitation and assigns one error:

"It was prejudicial error for the trial court to allow appellee, a practicing homosexual, overnight visitation with his minor children."

Appellant Brown grounds her contention on five statements: (1) she is fearful for the physical and mental well-being of the children because visitation with their father may trigger homosexual tendencies in them; (2) during visitation with their father they may contract AIDS; (3) homosexuality is a basis to change custody; (4) an extended visitation would force the children to "confront the homosexual problem" and "suffer the slings and arrows of a disapproving society"; (5) an adverse impact need not be shown.

None of these statements squarely presents the legal question facing this court. Before addressing the statements one by one, the court will structure the context of this dispute under the laws of the state of Ohio.

Under R.C. 3109.05, the court may make a visitation order which is "just and reasonable." The standard for such an order is the best interests of the child. Miller v. Miller (1966), 7 Ohio App.2d 22, 36 O.O.2d 69, 218 N.E.2d 630. State, ex rel. Scordato v. George (1981), 65 Ohio St.2d 128, 19 O.O.3d 318, 419 N.E.2d 4.

The purpose of visitation orders is to promote the children's continuing contact with the non-custodial parent. The need for visitation is recognized in Ohio. The Ohio Supreme Court made the importance of visitation clear in Porter v. Porter (1971), 25 Ohio St.2d 123, 54 O.O.2d 260, 267 N.E.2d 299, paragraph three of the syllabus:

"The need of a child for visitation with a separated parent is a natural right of the child, and is as worthy of protection as is the parent's rights of visitation with the child; thus, the failure, without just cause, of a divorced or separated parent having custody of a child to accord visitation rights to the other parent is not only an infringement of the other parent's right to visitation but is also an infringement of the child's right to receive the love, affection, training and companionship of the parent." See, also, Pettry v. Pettry (1984), 20 Ohio App.3d 350, 20 O.B.R. 454, 486 N.E.2d 213.

The bond between parent and child has been accorded constitutional protection. In 1972, the Supreme Court in Stanley v. Illinois (1972), 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, recognized that the interest of parents in their children "undeniably warrants deference and, absent a powerful countervailing interest, protection. * * *" In Stanley, the court set aside a presumption that a father was unfit based solely on his status as an unwed father. Recently, the Supreme Court limited the Stanley protection to fathers who had had a prior relationship to their children. Lehr v. Robertson (1983), 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614. However, at the same time, the court re-emphasized that the parental "interest in personal contact with * * * [the] child acquires substantial protection under the Due Process Clause." Id. at 261, 103 S.Ct. at 2993.

Brown's contentions constitute an unconstitutional "status" argument, i.e., that the appellee father's status as a homosexual man establishes conclusive proof of a judicial abuse of discretion. This court rejects such an argument. See Robinson v. California (1962), 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. Secondly, Brown's contentions posit an irrebutable presumption of unfitness based on sexual activity. This court has already rejected that argument in Whaley v. Whaley (1978), 61 Ohio App.2d 111, 15 O.O.3d 136, 399 N.E.2d 1270. Such an irrebuttable presumption offends the constitutional standards of Stanley and Lehr, supra. In Whaley, supra, this court held that the issue of immoral conduct is relevant only to the extent that it affects the child. Such conduct can be considered in the grant of custody or modification of a custody order only if the conduct of the parent has a direct adverse impact on a child.

Ohio courts have followed Whaley, supra, but only in cases involving divorced heterosexual parents. Other jurisdictions have considered homosexual parents. In A. v. A. (1973), 15 Or.App. 353, 358, 514 P.2d 358, 360, the Oregon Court of Appeals held that the homosexuality of a parent should not result in a determination of unfitness per se. See, also, Nadler v. Superior Court (1967), 255 Cal.App.2d 523, 63 Cal.Rptr. 352. In a well-written article, Rivera, The Legal Position of Homosexual Persons in the United States (1979), 30 Hastings L.J. 799, the status of a homosexual or lesbian parent attempting to assert custody or visitation rights is discussed in depth. The article points out that courts are beginning to apply an objective standard of the best interests of the child rather than looking to the sexual habits of the parent. Id. at 903-904. As this court stated in Whaley, supra, "[a] child must not be used to punish or reward conduct a particular judge might condemn or condone." Id., 61 Ohio App.2d at 114, 15 O.O.3d at 138, 399 N.E.2d at 1273.

Too long have courts labored under the notion that divorced parents must somehow be perfect in every respect. The law should recognize that parents, married or not, are individual human beings each with his or her own particular virtues and vices. The children of married parents are expected to take their parents as they find them--as Oliver Cromwell said to his portraitist, "with warts and all." Whatever their faults, unless the married parent's conduct is harming the child, the courts will not intervene in the parent-child relationship.

In divorce cases, however, the court has no choice but to intervene to establish custody and visitation. Nonetheless, the same standard should be used. In domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child. A child needs to know that both his parents, divorced or not, love him. Where the parent is removed from the child's environment, the child feels a sense of loss (see the discussion in Whaley, supra, regardless of the parent's faults and whatever the reason for the separation). If the courts are concerned with the best interests of the child, then visitation by the non-custodial parent must be recognized as necessary to the child's well-being. The denial of visitation should only be done when egregious conduct by the non-custodial parent results in harm to the child.

Brown relies on Roberts v. Roberts (1985), 22 Ohio App.3d 127, 22 O.B.R. 328, 489 N.E.2d 1067, where the Tenth District Court of Appeals reversed the granting of visitation privileges to a homosexual father. In its very narrow ruling the court held that the only evidence before the court was that the minor children would be harmed by such visitation. At the hearing before the referee in Roberts, the mother presented expert testimony from psychologists as to the detrimental effect on the children of visitation with their father. This evidence was unrebutted. In reversing, the Roberts court considered not the issue of homosexuality, but the issue of effect on the children. In remanding, the Roberts court directed the trial...