J. S. & C., In re

• Decision Date: 26 July 1974
• Citation: 324 A.2d 90,129 N.J.Super. 486
• Parties: In the Matter of J.S. & C.
• Court: New Jersey Superior Court

Page 486

129 N.J.Super. 486

324 A.2d 90

In the Matter of J.S. & C.

Superior Court of New Jersey Chancery Division.

July 26, 1974.

Richard L. Amster, Newark, for plaintiff.

Seymour Wishman, Newark, for defendant.

Marilyn Haft, New York City, for American Civil Liberties Union.

LUCCHI, J.D.C., Temporarily Assigned.

The controversy presented to the court by this case concerns the extent of visitation rights of a divorced parent who is homosexual. On July 27, 1971 a Pendente lite order was entered granting custody of the three children of the marriage to the mother. The father was granted certain rights of visitation, including a three-week summer vacation, alternate three-day holidays, a week during Easter and Christmas and alternate weekends of the year.

A judgment of divorce was entered March 21, 1973 in favor of the wife without contest, on grounds of extreme cruelty. The judgment directed that custody of the three children be retained by the mother. At that time, as the result of the involved conflict over the extent of the father's visitation, the court ordered that a separate hearing on this matter would be conducted at a later date. In preparation for the hearing it was ordered that a Probation Department investigation and report would be conducted, along with an examination of the children by a mutually agreed upon psychiatrist. It was further ordered that, pending the receipt of the Probation Department and psychiatrist's reports, the father should continue to have the right of visitation, including overnight with the younger two children on every weekend. Visitation with the oldest child was limited to Sundays every other weekend, and overnight visits were eliminated until further order of the court. The father was additionally restricted from having any male overnight guests other than members of his lawful family when the younger two children stayed overnight, and he was ordered not to permit any of his children to be exposed to or take part in any activities or publicity concerning the homosexual civil rights movement.

Plaintiff mother seeks to limit visitation rights so as to exclude overnight stays with the father. The basis for her request is the belief that the homosexual environment to which the father exposes the children is deleterious and not in their best interest. The father contends the Constitution prohibits restriction of parental rights on the basis of homosexuality. In addition, he offered expert testimony to rebut allegations of the mother than exposure to a homosexual parent or the parent's homosexual friends and their way of life is detrimental to children generally and his children specifically.

More than six days of testimony was heard from expert and fact witnesses. I make the following findings of fact necessary to decide this case: The mother and father were married in 1960. Three minor children, two boys and a girl, were born of the marriage. The parents separated around the time of the Pendente lite order in July of 1971. The father is an avowed and publicly known homosexual. He associates with other homosexuals and is presently living with a homosexual lover. During the visits with the father, the children associate with the father's homosexual lover and acquaintances.

The central issues presented in this case are:

(1) Whether the parental rights of visitation should be restricted on the basis that the father is a homosexual;

(2) Whether the granting of visitation rights to this homosexual father will serve the best interest of the children, and

(3) Whether the visitation rights of this homosexual father should be restricted.

The parental rights of a homosexual, like those of a heterosexual, are constitutionally protected. Fundamental rights of parents may not be denied, limited or restricted on the basis of sexual orientation, Per se. The right of a parent, including a homosexual parent, to the companionship and care of his or her child, insofar as it is for the best interest of the child is a fundamental right protected by the First, Ninth and Fourteenth Amendments to the United States Constitution. That right may not be restricted without a showing that the parent's activities may tend to impair the emotional or physical health of the child. As stated In re N, 96 N.J.Super. 415, 233 A.2d 188 (App.Div.1967):

The right of a natural parent to its child must be included with the bundle of rights associated with marriage, establishing a home and rearing children; as such, it should be viewed as 'so rooted in the tradition and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U.S 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677, 90 A.L.R. 575, 579 (1934), approvingly quoted in Griswold v. Commonwealth of Connecticut, 381 U.S. 479, 487, 85 S.Ct. 1678, 14 L.Ed.2d 510, 517 (1965) (Goldberg, J., concurring). Note also Id., 381 U.S., at pp. 495--496, 85 S.Ct. at pp. 1687--1688, 14 L.Ed.2d at p. 522. The Fourteenth Amendment's concept of substantive due process protects the parent-child relationship from unwarranted governmental intrusion. See Meyer v. State of Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042, 1045 (1923); Pierce v. Society of the Sisters, 268 U.S. 510, 534--535, 45 S.Ct. 571, 69 L.Ed. 1070, 1078 (1925); Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166, 64 [324 A.2d 93] S.Ct. 438, 88 L.Ed. 645, 652, rehearing denied 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090 (1944); Lacher v. Venus, 177 Wis. 558, 188 N.W. 613, 617, 24 A.L.R. 403, 408--410 (Sup.Ct.1922). The Amendment is also construed to protect the right of a natural parent to procedural due process when the custody or adoption of its child is being litigated. See May v. Anderson, 345 U.S. 528, 533--534, 73 S.Ct. 840, 97 L.Ed. 1221, 1226--1227 (1953); Armstrong v. Manzo, 380 U.S. 545, 550--551, 85 S.Ct. 1187, 14 L.Ed.2d 62, 66 (1965).

In 1923 the Supreme Court, in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, cited Supra, upheld the right of parents to have their children taught the German language. Although the court observed that the liberty guaranteed by the Fourteenth Amendment had never been defined with exactness, it determined that '(w)ithout doubt, it denotes * * * the right of the individual * * * to marry, establish a home and bring up children.' (At 399, 43 S.Ct. at 626).

In Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), the court invalidated a state statute providing for the sterilization of habitual criminals and emphasized the fundamental nature of the constitutionally protected rights to marry and to procreate. In May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, cited Supra, the court denied full faith and credit to an Ex parte Wisconsin custody decree and held that a parent's 'immediate right to the care, custody, management and companionship of * * * minor children' is one of the most precious of personal liberties. (At 533, 73 S.Ct. at 843). And in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, cited Supra, the court, invalidating a statute which criminalized the use of contraceptives by married couples, reaffirmed that the sanctity of a man's home and the privacies of life is a right so fundamental that it is safeguarded both by the right of privacy inherent in the First Amendment and by the Ninth Amendment to the United States Constitution. (At 487, 85 S.Ct. at 1678.) See also, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

More recently, he Supreme Court has explained the scope and nature of family freedoms with greater elaboration. In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the court declared unconstitutional Illinois' dependency and neglect statute which deprived unmarried fathers of the care and custody of their natural children on the death of the mother:

The court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights of man,' and '(r)ights far more precious than property rights.' It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment. (at 651, 92 S.Ct. at 1212; citations omitted)

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the court analyzed the protection afforded parental rights by the emerging constitutional right of privacy. Past decisions, the court notes,

* * * make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy. They also made it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. (at 152, 93 S.Ct. at 726; citations omitted)

Restriction of full contact between a father and child interferes with family relationships and impedes the father's right to participate in his children's rearing and education.

The courts of New Jersey have expressed a policy encouraging protection of family relationships by favoring full visitation rights in order 'to insure that (the children) shall not only retain the love of both parents but shall at all times and constantly be 'deeply imbued with love and respect for both parents. " Smith v. Smith, 85 N.J.Super. 462, 469, 205 A.2d 83, 87 (J.D.R.Ct.1964); Jackson v. Jackson, 13 N.J.Super. 144, 80 A.2d 306 (App.Div.1951).

The court thus concludes that the fact that one of the parents is a homosexual does not Per se provide sufficient basis for a deprivation...