Ex parte JMF

• Decision Date: 19 June 1998
• Citation: 730 So.2d 1190
• Parties: Ex parte J.M.F. (In re J.B.F. v. J.M.F.).
• Court: Alabama Supreme Court

730 So.2d 1190

Ex parte J.M.F.

(In re J.B.F. v. J.M.F.).

1970224.

Supreme Court of Alabama.

June 19, 1998.

Rehearing Denied August 28, 1998.

Robert L. Austin, Birmingham, for petitioner.

David Gespass and Kathleen M. Johnson of Gespass & Johnson, Birmingham, for respondent.

LYONS, Justice.

This Court granted the father's petition for certiorari review in this child custody case in order to determine whether the Court of Civil Appeals erred in reversing the trial court's judgment granting a change of custody of the parties' minor child from the mother to the father. See J.B.F. v. J.M.F., 730 So.2d 1186 (Ala.Civ.App.1997). We conclude that it did so err, and reverse its judgment and remand.

I.

The parties were divorced in January 1993, after a six-year marriage, and the trial court awarded custody of the parties' minor daughter to the mother. Shortly thereafter, the mother began a homosexual relationship with G.S., and in April 1992 she and her daughter moved into an apartment with G.S. Although the apartment had three bedrooms, the mother began sharing a bedroom with G.S. The father was aware of the relationship but, according to him, his conversations with the mother led him to believe that the mother and G.S. would maintain a discreet relationship, that they would not share a bedroom, and that they would represent themselves to the child and others as being merely roommates.

The father subsequently remarried, and the child regularly visited him and his new wife in their home. During the course of these visits, the father learned that his former wife and G.S. were sharing a bedroom, that the child occasionally slept with them in their bed, and that they kissed in the presence of the child. The father also noticed one instance where the child, while playing a game with her stepmother, grabbed the stepmother's breast in a way that appeared to him to be inappropriate. During visitation, the child remarked to the father that "girls could marry girls and boys could marry boys."

After the father learned that the mother and G.S. were not conducting a discreet relationship but were, in fact, openly displaying their affair to the child, and after observing the effect that this was having upon the child, he moved to modify the divorce judgment in order to obtain custody of the daughter. The child underwent expert psychological evaluation and was represented in the modification proceedings by a guardian ad litem.

The evidence presented during the ore tenus proceeding shows that since the divorce, the mother and G.S. have not conducted their relationship with discretion and have not concealed the nature of their union from the child. The mother and G.S. have exchanged rings and have a committed relationship as "life partners" that includes ongoing sexual activity. The mother and G.S. share a bed and the child has at times slept in the bed with them. They kiss and show romantic affection for each other in the child's presence.¹

The mother has explained to the daughter that she and G.S. love each other the way that the child's father and stepmother love each other. The mother and G.S. testified that G.S. shares in the child's upbringing in the way of a devoted stepmother and that the child accepts and loves her as a parental figure. G.S. regularly attends school functions and meetings with the mother, accompanies the child on school field trips, and eats lunch with the child at school twice a month.

The record contains evidence indicating that the child has remarked several times that girls may marry girls and that boys may marry boys. The mother and G.S. have homosexual couples as guests in their home, and they have taken the daughter with them on an overnight trip to visit a male homosexual couple; during this visit, the child slept with the mother and G.S. in one room, while their hosts shared a bedroom.

During her testimony, the mother repeatedly denied that her lifestyle had resulted in, or would result in, problems for the child. She denied that other children would shun the child based upon the obvious relationship between her mother and G.S., which they regularly display to those at the child's school. The mother stated in deposition testimony that if others showed "prejudice" against the child it would be "up to the child" to decide how to deal with it because "kids have to deal with peer pressure in their own ways anyway." The mother pointed out that children reject other children for a variety of reasons and that her daughter was "going to have to learn about prejudice in her daily life anyway." The mother was confident that the child could decide for herself what to tell her friends and that whatever the child was comfortable with would be fine.

The other evidence adduced during the trial showed, without dispute, that the child has a loving relationship with her father and her stepmother and that she accepts the stepmother as a parental figure. It is undisputed that she enjoys visiting them in their home and that the father and stepmother share in the care of the child when she is with them. The stepmother testified as to her love for the child and her commitment to sharing the responsibility of her upbringing. The father and the stepmother are both employed and can make satisfactory arrangements for the care of the child while they are working; the father, in particular, has a flexible work schedule in his job as an electrician that allows him to be available to care for the child.

There was also expert testimony at trial from the psychologists who examined the child. Dr. Sharon Gotlieb, who was the child's primary therapist, opined that the child's relationship with her mother is excellent, that the two are well bonded, and that the child exhibited no pathology or mental illness. She also stated that the child had a good relationship with G.S. and that the relationship is beneficial to the child. Dr. Gotlieb expressed concern that a change in custody would have a substantial detrimental effect on the child, perhaps causing her to have immediate and/or long-term behavior problems, school problems, or depression. Dr. Gotlieb did testify that a child is best served by having both a male and a female role model in the house, rather than two male, or two female, role models; however, she qualified this statement by opining that the gender of a new adult introduced into the home of a custodial parent after the biological parents divorced would make no difference to the child because the principal role models in her life would remain her parents.

Dr. Daniel McKeever, a pastoral counselor, testified that the father brought the child to him to be evaluated after observing her touching herself "excessively" in the genital area. He testified that, utilizing play therapy, he detected that the child might have issues of anger and sexuality, based upon his perceptions of the child's play with anatomically correct dolls. He also expressed a suspicion that the child might have experienced sexual abuse; however, he also stated that he had only two appointments with the child and that the father's suspicion of sexual abuse stemmed from the fact of the mother's lesbianism. Dr. McKeever did not interview the mother, G.S., or the child's stepmother.

Dr. Karen Turnbow, the court-appointed psychologist, stated in her report to the court that her evaluation of the child revealed no indication of sexual abuse or exposure to sexual acts. She reported that she spent time with both parents, with G.S., and with the child's stepmother, and concluded that the child has a good relationship with each of them and is resilient. Dr. Turnbow stated that, based upon her review of available literature on the subject of a child being reared by an openly homosexual parent, she did not think the homosexuality of a parent should be the sole consideration in a custody situation; rather, she said, the literature suggested that custody should be determined on the basis of individual character and parenting skills.

Dr. James B. Collier testified on behalf of the mother concerning scientific studies as to the effect growing up in a homosexual household had on children. He testified that he had reviewed at least 50 articles, all from journals that are subject to peer review, and that these studies consistently found no adverse consequences for children growing up in such a household.

In addition to the foregoing evidence, the trial court also had before it the report of Terry M. Cromer, the child's appointed guardian ad litem; the report summarized the evidence and scientific studies submitted to the court and presented Cromer's own observations. Cromer confirmed the unanimous opinion of all the psychologists that the child was pretty, well-groomed, intelligent, energetic, healthy, and generally happy. He also confirmed that the child is bonded with both parents and enjoys a loving relationship with both. He recognized that, as Dr. Collier and Dr. Gotlieb had stated, there were studies that had determined that there is generally no significant difference in various factors between a child who has been reared by a heterosexual couple and one who has been reared by a homosexual couple. He also pointed out that there are studies that come to the opposite conclusion and that the child's therapist, Dr. Gotlieb, appeared reluctant to consider studies which suggest that a child reared by homosexual parents could suffer exclusion, isolation, a drop in school grades, and other problems. After summarizing the evidence, Cromer recommended to the trial court that it grant the father's motion to change custody.

After considering all the evidence, the trial court entered an order changing custody to the father, finding that the change would materially promote the child's best interests and setting forth the mother's visitation rights. The trial court initially restricted the mother's visits by ordering that she not "exercise her right of...