FOR IMMEDIATE RELEASE | September 21, 2004

Idaho Supreme Court Prohibits Discrimination Against Gay Parents In Child Custody, But Denies Relief To Gay Father

(Boise, ID, September 21, 2004) — In its first decision involving a lesbian or gay parent, the Idaho Supreme Court held today that Idaho courts may not base child custody decisions on a parent's sexual orientation. Writing for the majority, Justice Trout stated that a parent's sexual orientation "cannot be the basis for awarding or removing custody." Stressing that custody decisions must be based on the best interests of children, the court held that "only when the parent's sexual orientation is shown to cause harm to the child, such that the child's best interests are not served, should sexual orientation be a factor in determining custody." The court also noted that child custody decisions must take account of the recent United States Supreme Court decision in Lawrence v. Texas, which held that lesbians and gay men have a constitutionally protected right to enter into same-sex relationships.

Despite the court's unequivocal rejection of overt anti-gay bias in child custody decisions, however, the court denied relief to gay father Theron McGriff. Theron had asked the court to reverse a lower court decision depriving him of joint custody of his two children, based on his former wife's disapproval of his gay relationship. Theron's wife left their marriage in 1997. After their divorce, Theron and his wife shared equal custody of their two children. After learning that Theron had become involved with a man three years later, his former wife petitioned for sole custody. All of the allegations in her petition focused exclusively on Theron's sexual orientation. The court-appointed therapist recommended leaving the joint custody order in place and testified that the children wanted the shared custody to continue. In 2002, the trial court not only granted the mother's petition for sole legal custody, but also restricted Theron's visitation, holding that he could not visit with his children if his partner lived with him.

The Idaho Supreme Court upheld the trial court's decision to remove custody from Theron and to prohibit him from living with his male partner. The Supreme Court held that the trial court "based his decision to modify custody on factors unrelated to sexual orientation," such as Theron's alleged inability to communicate with his former wife and tension between Theron's partner and his former wife. In a dissenting opinion, Justice Kidwell chastised the majority for disregarding the trial court's blatant focus on Theron's sexual orientation, stating: "Theron's sexual orientation was wrongfully taken into consideration by the lower court….This should not be the law in Idaho and is undesirable public policy." With regard to the restriction on Theron's visitation, Justice Kidwell noted that "If Theron's sexual orientation is not a factor, it is disingenuous that Theron may only exercise his visitation rights if he does not live with his male partner."

"We applaud the Court's holding that sexual orientation should not be a factor in child custody, an unprecedented and enormously important ruling in the state of Idaho, said Kate Kendell, Executive Director of the National Center for Lesbian Rights, who provided assistance to Theron's attorneys. "Nevertheless, we are distressed that this important principle was not applied in this case. The factual record simply did not support a denial of custody to Theron McGriff, and it is clear, as Justice Kidwell noted, that the lower court decision was based on Theron's sexual orientation. By failing to correct this injustice, the court has allowed the children in this case to suffer by being deprived of contact with a loving and devoted father."

read the decision www.isc.idaho.gov/sccivil.htm.