Constant A. v. Paul C.A.

• Citation: 344 Pa.Super. 49,496 A.2d 1
• Parties: CONSTANT A., Appellant, v. PAUL C.A.
• Decision Date: 23 August 1985
• Court: Pennsylvania Superior Court

Page 1

496 A.2d 1

344 Pa.Super. 49

CONSTANT A., Appellant, v. PAUL C.A.

Superior Court of Pennsylvania.

Argued March 22, 1984.

Filed June 14, 1985.

Reargument Denied Aug. 23, 1985.

Donald J. Martin, Norristown, for appellant.

Samuel A. Litzenberger, Quakertown, for appellee.

Before CAVANAUGH, BECK and TAMILIA, JJ.

TAMILIA, Judge:

This is an appeal from the denial of a mother's petition for expanded shared custody of her two children, Andrea and Darren; the mother is living in a fully acknowledged lesbian relationship. The lower court had before it a petition for involuntary termination of parental rights by the father and stepmother, which it denied. It is not an issue here. There was also a claim for visitation, by the maternal grandparents, determined in their favor; that portion of the judgment has not been appealed. The appeal before the court is solely on the issue of whether the lower court abused its discretion in entering the partial custody order and refusing to expand the order as suggested by appellant. Among other things, the lower court considered the mother's homosexuality in reaching its decision. Contrary to the view of the appellant, which maintains that the homosexual relationship cannot be considered, we would hold that it is a relevant consideration in any custody determination. If appellant's view was to be adopted, and the issue of homosexuality excluded, the only substantive issue remaining would be that of the best interest of the children, as it related to the mother's parenting capacity.

In reaching the issue as to whether or not the mother's petition for expanded partial custody, in effect, shared custody, was properly denied, the trial judge of necessity must have considered whether or not there had been a substantial change of circumstance requiring or permitting a change in the prior Order of Court entered in 1980. The only apparent change of circumstance appearing on the record was the mother's belief that she had now resolved her homosexual identity problems and that since she had now had a stable eight-year relationship with Cathy S., it was now timely to bring it into the open and share it with her children. Appellant would have us find this was a sufficient basis for the court to enter the expanded custody order. We disagree. In a recent holding by this Court, Agati v. Agati, --- Pa.Super. ----, 492 A.2d 427 (1985), we determined that any change in a partial custody order required a showing of changed circumstances and could not proceed initially as an inquiry as to the best interest of the child. As will be developed hereafter, appellant fails by either standard.

Our scope of review in matters relating to change of custody has recently been clarified by the Pennsylvania Supreme Court in Commonwealth v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), which states that we are bound by the findings of the trial judge which are reasonably supported by the evidence and all inferences taken therefrom. We do, however, have a broad scope of review, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977), and Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Within these limitations, the appellate court may set aside the decree or judgment of the trial court only if it finds there has been an abuse of discretion. The appellant would overrule the trial court by setting aside the requirement of proof of changed circumstances and deal with the merits as related to the third and fourth findings of his decree in which the court states:

3. Notwithstanding the efforts of the so called "Gay Rights" movement, we conclude that the natural mother's lesbian relationship shows her moral deficiency; however, there is no proof that the mother's homosexuality constitutes a grave threat to the children.

Therefore,

4. Under such circumstances, we will consider the factor of the naturalmother's lesbian relationship only to limit visitation ¹ and not to completely deny it.

While the trial court made a gratuitous finding concerning the moral nature of the mother's relationship, his decision upon the facts was warranted by the evidence and fully supported by his findings, independent of the one concerning the mother's moral deficiency. The appellant took the moral pronouncement and ran to unwarranted conclusions concerning the court's findings and would have us reverse or alter an otherwise appropriate partial custody order.

A major issue posed is the privacy issue; it requires that we make an inquiry as to whether the law, as it has developed, applies equally to homosexual couples as compared to heterosexuals. ² The marital right to privacy is guaranteed by the constitution. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The personal intimacies of marriage, the home, procreation, motherhood, childbearing, and the family have been held "fundamental" by the Supreme Court and, hence, have been encompassed within the protected rights of privacy. Marital intimacies in the privacy of their bedroom are within the protected right of privacy, guaranteed by the right to privacy. Lovisi v. Slayton, 539 F.2d 349 (4th Cir., En Banc, 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976). This is not a protected right when others are admitted to observe or participate in their intimacies. Thus, although an activity (sodomy) is a crime, (Va.Code Anno. § 18.1-212, Crimes against nature (anal/oral intercourse between two persons or an animal)), it is protected by virtue of the privacy requirements of marriage. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) is inapposite because the same privacy right does not apply to unmarried couples engaged in criminal activity. Doe v. Commonwealth's Attorney for City of Richmond, 403 F.Supp. 1199 (E.D.Va.1975), aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976) (upholding statute as applied to homosexual acts between two consenting adults in private places) (hereinafter, Doe v. Richmond ). ³

Although the Pennsylvania Supreme Court has ruled that sexual intercourse between consenting adults of the same sex is not punishable (even when done in public), Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), that ruling turned on the provision in the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 3124, prohibiting consensual deviate sexual intercourse. Section 3101, Definitions, defines "deviate sexual intercourse" as "Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal." (emphasis added) For purposes of the Crimes Code chapter on sexual offenses, § 3103, Spouse relationships, extends the interpretation of spouse to include persons living as man and wife, regardless of the legal status of their relationship. The Supreme Court, in a plurality decision with three justices dissenting, and three justices concurring with, but not joining Justice Flaherty, held that the equal protection clause would not permit a statute to impose a penalty on single or nonspousal partners, when it excepts spousal partners from the penalty for identical activity. The extended discussion on morality and freedom by the majority received no concurrence by the other members of the court.

The United States Supreme Court, in Doe v. Richmond, supra, found no problem in prohibiting homosexual activity between consenting adults. Indeed, the case which gave the impetus to increased rights in and out of marriage, Griswold, supra, in the Concurring Opinion of Justice Goldberg joined by the Chief Justice and Justice Brennan, stated:

Finally, it should be said of the Court's holding today, that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman, supra, 367 U.S. at 553, 81 S.Ct. at 1782.

'Adultery, homosexuality and the like are sexual intimacies which the state forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected.'

This discussion impinges on two aspects of the appellant's argument: first, that the trial court was in error in its consideration of the conduct of appellant and her live-in companion as morally deviant behavior; secondly, it affects the freedom which the appellant has requested, that is, to have unrestricted access to the children in her home and to travel to any state or Canada.

As to the first, without agreeing with the trial judge in his finding on morality, we would acknowledge there is considerable opinion, belief and law in this country, which cannot be ignored, and which supports such a conclusion. Indeed, in most of the cases cited by the appellant and referred to below, regarding heterosexual meretricious relations, the court stated that the state does not condone such behavior. Homosexual relations cannot be considered to have a higher standing. Even if not criminalized, the only basis for not condoning the behavior is the moral basis. Secondly, permitting the appellant the freedom to travel could clearly place the children in a situation with the mother and Cathy S., where the adults could be subject to arrest and prosecution for deviant sexual behavior. Doe v. Richmond, supra. Thus, if the courts will not provide homosexual behavior the same protection under the privacy considerations of the constitution pursuant to the incorporation doctrine of the fourteenth amendment equal protection provision, and such relationships, even when regularized, are not accorded the attributes of a marriage, infra, it can correctly be described as morally deviant or immoral.

While, unquestionably, the courts of this nation are...