N. Dakota Lesbian Mom Wins Custody Fight

Supreme court rules that two girls are living normally in a gay household

Overruling a long-standing state law that found gay parents presumptively unfit to have custody of their children, the North Dakota Supreme Court unanimously ruled on November 13 that the law is unconstitutional and overturned a trial court decision that would have transferred custody of two young girls from their lesbian mother to their straight father. The ACLU Lesbian and Gay Rights Project’s staff attorney, Tamara Lange, argued on behalf of the lesbian, Valerie Damron, who had filed the appeal.

The court’s opinion, written by Justice William Neumann, is sketchy on the facts of the case, but a November 14 article in the Grand Forks Herald fills in the details. Shawn Damron and Valerie divorced in September 2001, and agreed that they would have joint custody of their two daughters, who were then ages 8 and 2, but that the girls would live with Valerie. Shawn was to have liberal visitation rights.

According to the article, Shawn knew that his wife was a lesbian at the time of the divorce. After the divorce, Valerie began a relationship with Ann Elliot, and they now live together in a house with the two girls. In September 2002, Shawn filed a lawsuit seeking a change of custody, arguing that Valerie was setting the wrong “moral character” for his children in her living arrangements.

Shawn presented no evidence to trial judge Gary Holum that there had been any harm to the girls. Rather, he based his lawsuit entirely on a 1981 North Dakota Supreme Court case, Jacobson v. Jacobson, in which the court had ruled that gay people are presumptively unfit to have custody of their children.

At the trial level, Holum was bound by the Jacobson legal precedent and he ruled that Shawn should have physical custody of the children. “It is not the function of the court to use these children as the tool of enlightenment to convince society of the error of its beliefs,” wrote Holum in an unpublished opinion that is quoted at length by Justice Neumann in his opinion for the state supreme court. “Rather, the function of the court in matters of child custody is to look solely to the best interest of the particular children in the case before the Court. . . The modification of the judgment by transferring primary physical care, custody and control from Valerie to [Shawn] is necessary to serve the best interests of the children in that the children’s present environment may endanger the children’s emotional health or impair the children’s emotional development.”

In stating this conclusion, Holum indicated awareness of a recent North Dakota statute that sharply limits the ability of courts to modify custody arrangements within a two-year period after the court has made an initial custody change. But Holum’s factual conclusion that the children’s present living arrangements endangered their emotional health was based only on the presumption created by the Jacobson precedent.

“To the extent Jacobson can be read as creating such a presumption, it is overruled,” wrote Neumann. “Other courts generally have recognized that, in the absence of evidence of actual or potential harm to the children, a parent’s homosexual relationship, by itself, is not determinative of custody,” he continued, then citing appellate decisions from ten other states, most of them from the Midwest, in which the courts had rejected any presumption that gay parents are unfit to have physical custody of their kids.

Pointing out that the recently-enacted custody law places a substantial evidentiary burden on the parent who is seeking to modify a relatively recent custody award, Neumann stated, “We hold a custodial parent’s homosexual household is not grounds for modifying custody within two years of a prior custody order in the absence of evidence that the environment endangers or potentially endangers the children’s physical or emotional health or impairs their emotional development.”

In this case, Shawn had conceded that Valerie was a fit parent, and the evidence she presented showed that the children were doing just fine in the home she maintains with her partner, Ann.

Having resolved the matter in Valerie’s favor by overruling the old precedent, the court refrained from taking a position on whether the Jacobson presumption violated Valerie’s constitutional rights.

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