North v. North

• Decision Date: 01 September 1993
• Docket Number: No. 1362,1362
• Citation: 648 A.2d 1025,102 Md.App. 1
• Parties: , 63 USLW 2335 David Kevin NORTH v. Kathryn Dionne NORTH. ,
• Court: Court of Special Appeals of Maryland

Page 1

102 Md.App. 1

648 A.2d 1025, 63 USLW 2335

David Kevin NORTH v. Kathryn Dionne NORTH.

No. 1362, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Oct. 25, 1994.

James Milko (Gerald Solomon, on the brief), Greenbelt, Natalie H. Rees (Court-appointed for minor children), Towson, for appellant.

James E. Joyner, Oxon Hill, for appellee.

Marla J. Hollandsworth, Deborah Weimer, Joyce McConnell, Susan Goering, Baltimore, for amicus curiae, American Civ. Liberties Union.

Marc E. Elovitz, Ruth E. Harlow and William B. Rubenstein, New York City, for amicus curiae, American Civ. Liberties Union Foundation.

Arthur B. Spitzer, for amicus curiae, American Civ. Liberties Union Fund of the Nat. Capitol Area of Washington, DC.

Beatrice Dohrn, Legal Director of Lambda Legal Defense and Education Fund of New York, NY, Paula Brantner, Legal Director of the National Center for Lesbian Rights of San Francisco, CA, Nancy D. Polikoff, Professor of Law at the American University Washington College of Law of Washington, DC, on brief amici curiae for Lambda Legal Defense and Education Fund; Maryland Lesbian and Gay Law Association National Center for Lesbian Rights; Gay and Lesbian Advocates and Defenders; Gay and Lesbian Parents Coalition International; Gay and Lesbian Parents Coalition of Metropolitan Washington; Families with Pride; Gay Fathers Coalition of Washington, DC; Alexandra Fagelson and Ronald D. Lewis in support of appellant.

Argued before WILNER, C.J., and MOYLAN, BISHOP, GARRITY, ALPERT, BLOOM, WENNER, FISCHER, CATHELL, DAVIS, MURPHY and HOLLANDER, JJ., and ROSALYN B. BELL, Judge (retired) Specially Assigned.

WILNER, Chief Judge.

On June 4, 1993, the Circuit Court for Prince George's County entered a judgment divorcing Kathryn and David North, granting custody of their three children to Mrs. North, and, with one minor modification, establishing visitation privileges for Mr. North in conformance with a pendente lite visitation order entered by another judge of the court in October, 1992. The effect of that last provision was to allow Mr. North unsupervised visitation from 11:00 a.m. to 6:00 p.m. on alternating Saturdays and from 2:00 p.m. to 7:00 p.m. on alternating Sundays, but to deny his request for unspecified overnight weekend and extended summer visitation.

The sole issue in this appeal by Mr. North is whether the court erred in denying that overnight and extended visitation. On the record before us, we conclude that it did. We shall remand for further proceedings.

Factual Background

The Norths were married in 1982. They have three daughters, who, at the time of trial, were eight, five, and two years old, respectively. The parties separated in June, 1991, following Mr. North's revelation that he was HIV-positive. He claimed at the time that he had contracted the virus from a heterosexual extramarital affair. Even more upsetting, no doubt, to Mrs. North was the fact that he had learned of his HIV-positive condition in April and had continued to have unprotected sexual relations with her during that three-month period. Mrs. North promptly had herself and the children tested; all, fortunately, tested negative.

Mr. North vacated the family home and moved in with one David York. Mr. York had been a family friend for about two years and had developed a close relationship with the North children. At Mrs. North's urging, he had been named godfather to the youngest child, Sarah. During the next year, Mr. North exercised "liberal" visitation with the children, although, from information supplied to us at oral argument and despite an assertion to the contrary in the amicus brief of the American Civil Liberties Union, he apparently did not have the children with him overnight.

In June, 1992, Mr. North confessed to his wife that he had, in fact, contracted the HIV virus from homosexual contact. It appears that Mr. North had his first homosexual experience in 1979 and that he continued such contacts during the marriage. He also informed Mrs. North that Mr. York was also a homosexual and HIV-positive, that North and York were lovers, that they intended to be married, ¹ and that he proposed to inform the children about and expose them to his new lifestyle. At that point, Mrs. North terminated all visitation by Mr. North with the children and filed this action for divorce.

Both Mr. and Mrs. North have deep religious backgrounds. Mr. North is a Baptist minister, as was his father. From 1984 to July, 1991, he served as pastor of a Baptist church. Mrs. North attends church twice a week; her brother is a pastor, and she assisted Mr. North in his pastoral duties until the separation. In her complaint, Mrs. North alleged that, "at the time of the 'Christian' marriage of the parties, both parties agreed that their lives and the lives of any children they may have would be raised in a traditional, orthodox, heterosexual, and [C]hristian home." In violation of that commitment, she averred, Mr. North "insists on engaging in homosexual activity and has threatened that should the children be with him he will expose them to a setting involving openly homosexual and lesbian couples."

In addition to her concern about the "harmful psychological [e]ffects the visitations in a homosexual and or lesbian environment would have on her minor children," Mrs. North expressed concern because of "serious health risks to her children" from Mr. North's positive HIV condition. She therefore asked that all visitation be denied and that Mr. North be enjoined from taking the children from her home.

As we observed, in October, 1992, the court entered a pendente lite order allowing unsupervised visitation during the specified daylight hours on Saturdays and Sundays. The order directed, however, that Mr. North "not expose the minor children of the parties to events or functions espousing his alternative lifestyle or overtly display or discuss said lifestyle with his children."

The case was heard on the merits in April, 1993. The only real issue between the parties was visitation, and that was the focus of most of the evidence. Mrs. North continued to press for no visitation because of her concerns about exposure of the children to the HIV virus and to Mr. North's homosexual lifestyle; Mr. North sought what he regarded as "standardized" visitation, including at least one overnight visit every other weekend and "maybe a couple of weeks in the summers."

Prior to this hearing, the court had directed an investigation and evaluation by the Department of Social Services (DSS) and by the court's Mental Hygiene Consultation Service. Reports were prepared by both units and forwarded to the court. The DSS report stated, among other things, that Mr. North's home, which he shared with Mr. York, was "clean, well furnished, and has adequate living space for the family," that it contained three bedrooms, and that, in any overnight visitation, the children would occupy one bedroom in which there were twin beds and a couch that opens to a bed and that Mr. North and Mr. York would occupy the other two bedrooms. It stated further that:

"Mr. North's three children do not know that he is a homosexual or HIV positive. Mrs. North does not feel it is in the children's best interest to be told of their father's sexuality and Mr. North is going along with his wife's wishes in order to see his children at this time."

The report advised that both Mr. North and Mr. York were being treated for their HIV condition and that neither had yet developed AIDS. The investigator concluded that North and York were "responsible, caring people who are concerned about Mr. North's daughters and seem to be committed to doing what is best for the children." He noted that they had agreed not to discuss or display their sexuality to the girls "during visits during day or evening hours" and were taking every precaution to avoid any risk of the children acquiring HIV. His conclusion was:

"This agency feels Mr. North has the right to standard visitation which would include overnight visitation every other week-end. This agency does not feel the girls are in any danger during the visits or that the visits will adversely affect their emotional stability."

The report of the Mental Hygiene Consultation Service was detailed--12 pages, single-spaced--but made no recommendation with respect to the extent of visitation. The psychologist did suggest, however, that Mrs. North felt betrayed by her husband and may be "overusing the HIV issue to justify her needs."

Mrs. North repeated her various concerns in her testimony. In contrast to the DSS finding, she claimed that her husband's home was unclean and that he was unclean in his personal hygiene, and she gave various examples of his poor habits. She expressed her feeling of betrayal at his homosexual lifestyle and at his continuing to have sexual relations with her without informing her that he was HIV-positive. She made clear that she did not trust Mr. North to shield the children. When asked why she halted visitation upon learning of Mr. North's and Mr. York's homosexuality, she stated:

"I didn't want my children to be [a]ffected in any kind of way with their lifestyle, their environment. I was concerned that the longer the children stayed with the two of them, that somehow the children would be damaged by their sleeping together. The children love to jump in bed with me, and when we were together, when we were married they loved to jump in bed with the two of us, and when--the fear was that they would wake up at night, and they would see that he's not in the room, and they would wonder where is my father.

Then the next thing you know you see that they go into the other man's room, and they are both on top of each other making love. The contraction of the body fluids, after they finished making love, that there is residue left on the sheets that the children may get. He's not a very clean person at all."

Mrs. North complained...