Jacoby v. Jacoby

• Decision Date: 26 May 2000
• Docket Number: No. 2D98-4790.,2D98-4790.
• Citation: 763 So.2d 410
• Parties: Julie K. JACOBY, Appellant, v. David E. JACOBY, Appellee.
• Court: Florida District Court of Appeals

763 So.2d 410

Julie K. JACOBY, Appellant, v. David E. JACOBY, Appellee.

No. 2D98-4790.

District Court of Appeal of Florida, Second District.

May 26, 2000.

Jean R. Simons, Fairfax, Virginia, for Appellant.

John K. Finch, Safety Harbor, for Appellee.

Stephen R. Scarborough and Beatrice Dohrn, Atlanta, for Amicus Curiae, Lambda Legal Defense Fund.

NORTHCUTT, Judge.

The circuit court dissolved the marriage of Julie and David Jacoby in November 1998. Mrs. Jacoby challenges several aspects of the final judgment, including the court's designation of Mr. Jacoby as primary residential parent of the parties' children. We agree with Mrs. Jacoby on the custody issue, and reverse on that point. We also remand for reconsideration of her application for an award of attorney's fees and costs.

Primary residential custody of the children.

Two daughters were born during the marriage, one in August 1989 and the other in October 1992. In November 1996, Mrs. Jacoby informed her husband that she had fallen in love with a longstanding family friend who is a lesbian. The parties separated. Mrs. Jacoby and the children moved into the home of her lesbian partner; Mr. Jacoby stayed in the marital home. After the separation, the children began to visit Mr. Jacoby every other weekend. Then, in September or November 1997, the parties agreed to rotating custody, and the children alternated between the two homes on a weekly basis. This arrangement continued until November 1998, when the circuit court entered its final judgment. During the period of separation and rotating custody, the children continued attending a private school affiliated with a Baptist church, where they had been enrolled before the break-up of the marriage.

Both parties sought primary residential custody of the two girls. Mrs. Jacoby proposed that they live with her and her partner in the home they had shared since the separation. The father became engaged while the divorce was pending. He intended to marry and move into a home owned by his new wife when the dissolution was final. If he were awarded custody, the girls would live with him, his new wife and her teenaged children. They would attend public school in the neighborhood of his new home, which was in the same county as the marital home, but not nearby.

Numerous witnesses testified at trial, including the mother, her partner, the father, his fiancée and a court appointed psychologist. The mother had been the children's primary caretaker during the marriage and the initial period of separation, and the father admitted she was a great parent. But the father, too, had become a better and more involved parent during the rotating custody. The psychologist confirmed that both parties were good parents, but he concluded that Mrs. Jacoby had an edge in parenting skills. She was more adept at demonstrating affection, he said. In addition, the children had stronger emotional ties to her, and she could provide a fine home environment. The psychologist also believed that Mrs. Jacoby would be the custodial parent more likely to encourage contact with the non-custodial parent. He recommended that she be assigned primary residential responsibility for the children.

As often happens in child custody cases, each parent attempted to prove examples of the other's lapses in parental judgment. The court wisely refused to consider a number of these minor conflicts in deciding which parent should have primary residential responsibility for the girls. At the same time, however, the court's remarks during the final hearing and in the final judgment demonstrate that it succumbed to the father's attacks on the mother's sexual orientation, which were the primary feature of this case.

For a court to properly consider conduct such as Mrs. Jacoby's sexual orientation on the issue of custody, the conduct must have a direct effect or impact upon the children. See Maradie v. Maradie, 680 So.2d 538 (Fla. 1st DCA 1996). "[T]he mere possibility of negative impact on the child is not enough." Id. at 543. The connection between the conduct and the harm to the children must have an evidentiary basis; it cannot be assumed. See id. We have reviewed the court's comments concerning the negative impact of the mother's sexual orientation on the children, and have found them to be conclusory or unsupported by the evidence.

For example, the final judgment stated that "[t]here is no doubt that the husband feels the current living arrangement of the wife is immoral and an inappropriate place in which to rear their children.... Obviously, this opinion is shared by others in the community." But the latter is not obvious to us from this record. In fact, there was no evidence addressing "the community's" beliefs about the morality of homosexuals or their child rearing abilities.

The order then addressed the community's reaction to homosexuals, by paraphrasing the psychologist's testimony: "Dr. Merin testified that a strong stigma attaches to homosexuality and that while being reared in a homosexual environment does not appear to alter sexual preference, it does affect social interaction and that it is likely that the children's peers or their parents will have negative words or thoughts about this." (emphasis supplied). The court mischaracterized Dr. Merin's testimony. In response to the question "and it's your understanding that you say times are changing ..., but there is still a stigma socially attached with homosexual lifestyles in our society?" Dr. Merin responded "yes." He did not quantify the degree. He did remark that "[i]n our society it is now the likelihood that there would be words spoken or thoughts, negative thoughts or concerns by children's peers or the parent of their peers...." Dr. Merin's actual testimony about social interaction was: "research would indicate that the considerations would be given more to their social interaction than to the great degree of probability that they would themselves, you know, develop homosexual characteristics."

But even if the court's comments about the community's beliefs and possible reactions were correct and supported by the evidence in this record, the law cannot give effect to private biases. See Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984); cf. Department of Health and Rehabilitative Services v. Cox, 627 So.2d 1210 (Fla. 2d DCA 1993) (stating that private biases against homosexuality are not a permissible rational basis to support statute banning homosexuals from adopting), approved in part, quashed in part, 656 So.2d 902 (Fla.1995). Moreover, even if the law were to permit consideration of the biases of others, and even if we were to accept the assumption that such would necessarily harm the children, the bias and ensuing harm would flow not from the fact that the children were living with a homosexual mother, but from the fact that she is a homosexual. See Conkel v. Conkel, 31 Ohio App.3d 169, 509 N.E.2d 983 (1987); M.P. v. S.P., 169 N.J.Super. 425, 404 A.2d 1256 (App.Div.1979). The circuit court's reliance on perceived biases was an improper basis for a residential custody determination.

The final judgment also contained unsupported findings concerning the effect on the children of religious teachings about homosexuality. The judgment stated: "Dr. Merin testified that once the children learn about homosexuality and religious teachings, real confusion and conflict will arise for them." (emphases supplied.) Again, the order does not accurately reflect Dr. Merin's views. Concerning a possible conflict between religious teachings and homosexuality, Dr. Merin opined that as the children get older, they may become confused, but that their level of comfort would be affected by how the situation was handled. This was the only testimony about the possible effects of religious teaching on the children, and it did not support a finding that the mother's sexual orientation will harm the children.

Moreover, the record contains no competent evidence about what, if any, religious teaching the children were exposed to. Yet the judge criticized Mrs. Jacoby's decision to keep the children in the church-affiliated school they had been attending, stating he "[could not] determine if [the mother] is naive or simply blase, but she has made absolutely no effort to determine how her current lifestyle might adversely impact the children in their current school environment." These words are disquieting for several reasons. First, ironically, they betray the influence of religious stereotyping. Several witnesses testified about the Baptists' beliefs without ever explaining the sources of their knowledge. When Mr. Jacoby's attorney asked Dr. Merin if he knew the Baptists' position on homosexuality, the doctor responded that they were strongly opposed to it. Mr. Jacoby also testified he had learned that the Baptist religion was against homosexuality. At one point, the trial court itself questioned Mrs. Jacoby directly, asking whether she was aware that "the Baptists" had boycotted Disney World. None of this was competent evidence; nothing in the record suggested that the psychologist, Mr. Jacoby, or the trial court was qualified to expound on Baptist doctrine.

Second, no evidence was presented to show to what degree, how, or even whether this supposed Baptist doctrine of anti-homosexuality was espoused at the children's school or, for that matter, at the church with which it was affiliated. Indeed, the only evidence with any bearing on these questions suggested an atmosphere of tolerance; Mr. and Mrs. Jacoby both testified that the school employed a teacher who was widely known to be homosexual. The court's question about "Disney World" presumably referred to the 1996 and 1997 votes by attendees at the Southern Baptist Convention to boycott the Walt Disney Company in part because it extended health benefits to employees in same-sex relationships. But there was no evidence in this...