Marlow v. Marlow, 48A02-9803-CV-211

• Decision Date: 25 November 1998
• Docket Number: No. 48A02-9803-CV-211,48A02-9803-CV-211
• Citation: 702 N.E.2d 733
• Parties: Bryn Douglas MARLOW, Appellant-Petitioner, v. Constance Jane MARLOW, Appellee-Respondent.
• Court: Indiana Appellate Court

Page 733

702 N.E.2d 733

Bryn Douglas MARLOW, Appellant-Petitioner, v. Constance Jane MARLOW, Appellee-Respondent.

No. 48A02-9803-CV-211.

Court of Appeals of Indiana.

Nov. 25, 1998.

Sean C. Lemieux, Indiana Civil Liberties Union, Indianapolis, for appellant-petitioner.

Christopher A. Cage, Michael C. Lacey, Hulse Lacey Hardacre Austin & Shine, P.C., Anderson, for appellee-respondent.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Bryn Douglas Marlow appeals that portion of his marriage dissolution decree pertaining to restrictions placed upon his visitation with his three children.

We affirm.

ISSUE

1. Whether there is a rational basis to support the visitation restrictions.

2. Whether the restrictions are unconstitutional.

FACTS

Douglas and Connie Marlow were married in 1983. They adopted three children during the course of their marriage. The oldest child, Caleb, was eight years-old at the time of the dissolution proceeding. The youngest children, Jacob and Isaac, were both five years-old. Douglas and Connie were both raised in conservative, fundamentalist Christian environments, and believed that homosexuality was a sin. They taught and raised their children in this environment as well.

Before their marriage, Douglas told Connie that he had previously been attracted to another man. Douglas further explained that he thought "this was a phase that most guys went through, that it was over." (R. 204). However, during the course of their marriage, Douglas continued to be attracted to men, and he and Connie attended counseling throughout the years in an attempt to save their marriage. In April 1995, Douglas told Connie that he could no longer ignore the issue of his sexuality.

In November 1995, Douglas and Connie separated and Douglas, then able to reconcile his homosexuality with his conservative Christian background, began attending conferences on homosexuality in such places as Canada, California, New Mexico and Colorado. In February 1996, Douglas changed his name to Bryn Douglas Jay Rikala Urko Corinth North Marlow (hereafter "Bryn"), each part of the name reflecting a part of Bryn's perceived new identity, personality, ancestry and culture. Also in February 1996, Bryn filed a petition for dissolution of marriage.

During the pendency of the dissolution proceeding, Bryn exercised regular visitation with his three children. Connie had allowed Bryn to exercise overnight visitation with the boys so long as no other adults were present. However, she subsequently learned that although he did not allow visitors to sleep in the apartment while his boys were spending the night, Bryn had the visitors sleep in the hallway of the apartment or in the car.

The trial court held hearings on the dissolution petition in August and November 1996 and in March and June 1997. Bryn, Connie, Counselor Daniel Wilkinson, Clinical Psychologist Garrett Higbee, Bryn's brother psychologist Stephen Marlow, family friend Annetta McKaig, and Clinical Psychologist Leesa Nite all testified at the hearings. The trial court took the matter under advisement and issued a dissolution order on January 26, 1998, wherein it awarded sole custody of the boys to Connie. The order also included the following visitation restrictions:

1. Pending further order of this court, during periods of overnight visitation, the Petitioner-father shall not have any other non-blood related person in the house overnight when the children of the parties are present.

2. Petitioner-father shall not include in the children's activities during periods of visitation, any social, religious or educational functions sponsored by or which otherwise promote the homosexual lifestyle.

DECISION

I. Rational Basis for the Restrictions

Bryn now appeals the restrictions placed upon his visitation with his children. Specifically, he first contends as follows:

Because nothing in the record warranted these restrictions, or any restriction, and because the father's sexual orientation and (Connie's) opinions regarding it do not support a limit of parent's general right to unrestricted visitation, the bans imposed by the trial court on Father's visitation should be removed.

Bryn's Brief, p. 13. We disagree.

In all visitation controversies, courts are required to give foremost consideration to the best interests of the child. Ind.Code 31-17-4-2; Pennington v. Pennington, 596 N.E.2d 305, 306 (Ind.Ct.App.1992), trans. denied. When reviewing the trial court's resolution of the visitation issue, we reverse only when the trial court manifestly abused its discretion. Id. If the record reveals a rational basis supporting the trial court's determination, no abuse of discretion occurred. Id. We will not reweigh evidence or reassess the credibility of witnesses. Id.

In Pennington, wherein we affirmed a restriction prohibiting the father's male friend from being present during the father's overnight visitation with his seven year-old son, we noted that it is "not puritanical or unreasonable to attempt to shield a child of tender age ... from the sexual practices of the visiting parent, whether those practices are homosexual ... or heterosexual." Id. Such protection is a sound practice designed to foster the child's emotional well-being and is widely employed. Id. and cases cited therein. See also Annotation, Visitation Rights of Homosexual or Lesbian Parent, 36 A.L.R.4th 997 (1985); Propriety of Provision of Custody or Visitation Order Designed to Insulate Child from Parent's Extramarital Sexual Relationships, 40 A.L.R.4th 812 (1985).

Here, testimony at the four days of dissolution hearings reveals that Bryn and Connie were both raised in conservative, fundamentalist Christian environments and believed that homosexuality was a sin. They both taught and raised their children in this environment as well. When the children were eight years-old and five years-old, Bryn, then able to reconcile his homosexuality with his conservative Christian background, changed his name and filed a petition for dissolution of marriage.

During the pendency of the dissolution proceedings, Bryn took the children to a "Liberty and Justice for All" conference sponsored by, among others, PFLAG (Parents and Friends of Lesbian and Gay Persons). The conference was a "day-long workshop addressing the concerns of gay-lesbian people as that relates to religion, education and the political arena." (R. 266). Bryn "shared [his] story" at the conference. (R. 266).

Bryn also took the children to a lesbian choir and to a baptismal service on the White River. Bryn explained the service as follows:

Rev. Delaqua came out as a gay man. His family wrote him out, refused to talk to him. For himself, he chose the name Delaqua as his last name, or the cross, David of the cross. And then at this, at this ceremony it was important for him to mark himself to say this is the name I've chosen for myself, to say that my family has cast me off, but, quoting from the Psalms, "God has taken me in."

(R. 299).

After visits with Bryn, the boys exhibited behavior consistent with emotional distress such as bed-wetting, difficulty sleeping, nightmares and general malaise. At the time of the hearing, Bryn was living with his male partner in a one-bedroom apartment where the two men slept in the same bed. Clinical Psychologist Garrett Higbee testified that in his opinion, Bryn's detailed discussions with the boys regarding homosexuality were not appropriate for the boys because they lack the cognitive ability to fully understand the information. According to Dr. Higbee, the appropriate age to deal with sexual issues is early adolescence. Dr. Higbee recommended that the court award sole custody of the boys to Connie and that Bryn not be allowed to exercise overnight visitation with the boys.

Counselor Daniel Wilkinson, an expert witness in custody cases, testified that the children are confused about Bryn's new lifestyle after both Bryn and Connie taught and raised them in a conservative Christian environment. For example, five year-old Jacob fluctuates between wanting to change his name and be "gay," (R. 335), and telling his father that he's "done the wrong thing." (R. 336). Caleb knows that his father is a homosexual and he is uncomfortable when Bryn attends church functions because he knows his father's homosexuality is inconsistent with the church's beliefs. Wilkinson recommended that the court award sole custody of the boys to Connie and that Bryn not be allowed to exercise overnight visitation with the boys. Wilkinson also recommended limiting the children's exposure to "expression of the homosexual lifestyle." (R. 341).

Based upon the foregoing, the record reveals a rational basis supporting the trial court's visitation restrictions. We further note that although both Higbee and Wilkinson recommended that Bryn not be allowed to exercise overnight visitation with the boys, the trial court did not follow these recommendations. Rather, the trial court allowed Bryn to exercise visitation with the boys so long as there are no other non-blood related persons in the house overnight when the children are present. We cannot say that the trial court abused its discretion in imposing the restrictions. See Pennington.

II. Constitutionality of the Restrictions

Bryn further contends that the visitation restrictions are unconstitutional. First, he contends that the restrictions are based on a private bias and therefore violate his constitutional right to equal protection. In support of his proposition, he directs us to Palmore v. Sidoti, 466...