S.E.G. v. R.A.G.

735 S.W.2d 164
CourtMissouri Court of Appeals
DecidedJuly 21, 1987
DocketNo. 50751
StatusPublished
Cited by19 cases

This text of 735 S.W.2d 164 (S.E.G. v. R.A.G.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. Ct. App. 1987).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant-Wife appeals from a ruling of the Circuit Court of Franklin County, Division VI, granting dissolution of the marriage of the parties. The issues on appeal involve custody of the parties’ four minor children, division of the marital property, award of maintenance and attorney’s fees. Along with the submission of appellant’s and respondent’s briefs, amicus curiae (American Civil Liberties Union) requested leave of the court to present its brief because of the civil liberties issues that touch this case. That brief addresses only those issues which pertain to the constitutional rights of homosexual parents of minor children who seek custody and/or unrestricted visitation.

In a light most favorable to the verdict, the facts of this case are as follows: Husband and Wife were married in 1973 when Wife was 16 and Husband was 20. They had four children, Sam, born August 4, 1973, Amy, bom December 11, 1975, Hannah, bom March 2, 1979, and Ruth, bom November 19, 1982. Respondent (Husband) is a case worker (no formal degree) with Missouri Division of Family Services. Appellant (Wife) teaches natural child birth classes and baby-sits out of the family home in Union, Missouri. The parties separated in June, 1984. Both continue to reside in Union. On April 19, 1985, a decree of dissolution was entered granting custody of the four minor children, family home, maintenance and support to Wife. Ten days thereafter, on May 3, 1985, Husband filed motion for a new trial or amended judgment upon learning of his wife’s homosexual relationship. On July 18, 1985, the order was amended granting primary custody of the minor children to Husband. We affirm.

Wife first contends that the trial court erred in failing to give proper weight to the Missouri statutory factors and Missouri common law for determining the custody of minor children. The trial court is vested with broad discretion in determining child custody. Davis v. Davis, 693 S.W.2d 879, 883 (Mo.App., E.D.1985). It is our principal concern, as is the trial court’s, in awarding custody, to do so in the best interest of the children. Williams v. Cole, 590 S.W.2d 908, 911 (Mo. banc 1979). This standard is reiterated in the few Missouri cases on record dealing with a homosexual parent seeking custody. J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo.App., W.D. 1982); L, v. D., 630 S.W.2d 240 (Mo.App., S.D.1982); N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo.App., W.D.1980).

We have reviewed the factors set forth in RSMo § 452.375 (1986). It is clear from the record that both parties are loving, caring parents. But one of the children, Sam, has stated his preference to live with his mother. Minor children’s preference will be followed only if that preference is consistent with the best interests and welfare of the child. L. v. D., 630 S.W.2d 240, 242 (Mo.App., S.D.1982). In addition, morality is always a factor in child custody cases. L.H.Y. v. 535 S.W.2d 304, 307 (Mo.App., E.D.1976).

In November, 1984, Wife met Kitty Ann Shelby (a/k/a “Airrow”) at an Adult Children of Alcoholics meeting. In February, 1985, the two women became sexually involved. Both women define themselves as lesbians. Airrow resides in St. Louis but several times a week drives in to Union to spend the night with Wife. Airrow and Wife sleep in the same bed at the family home in Union and evidence indicates that the youngest child has on occasion slept with them. Airrow and Wife are open about their relationship with the children and the community.

Both sides presented evidence as to the effects of a parent’s homosexuality on [166]*166the minor children in their custody. Wife, as well as the American Civil Liberties Union (A.C.L.U.), cite articles that indicate there are no significant differences among heterosexual parents and homosexual divorced parents and their children.1 Of course, the trial court has the authority to find the evidence presented not credible. N.K.M. v. L.E.M., 606 S.W.2d 179, 187 (Mo.App., W.D.1980). Since it is our duty to protect the moral growth and the best interests of the minor children, we find Wife’s arguments lacking. Union, Missouri is a small, conservative community with a population of about 5,500. Homosexuality is not openly accepted or widespread. We wish to protect the children from peer pressure, teasing, and possible ostracizing they may encounter as a result of the “alternative life style” their mother has chosen. In the face of this argument, Wife cites Palmore v. Sidoti, 466 U.S. 429, 433, 104 S.Ct. 1879, 1882, 80 L.Ed.2d 421 (1984), where it was held “the Constitution cannot control such prejudices but neither can it tolerate them.” Palmore involved an interracial marriage where the mother was seeking custody of her child in her own interracial home. We do not agree that Palmore applies to the situation at hand. Homosexuals are not offered the constitutional protection that race, Anderson v. Martin, 375 U.S. 399, 84 S.Ct. 454, 11 L.Ed.2d 430 (1964), national origin, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and alien-age, Graham v. Richarson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) have been afforded. Bowers v. Hardwick, — U.S. —, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). See also State v. Walsh, 713 S.W.2d 508, 511 (Mo. banc 1986).

Wife contends that homosexuals have parental rights as well as heterosexuals, and that those rights cannot be denied solely on the basis of Wife’s lesbian relationship. There must be a nexus between harm to the child and the parent’s homosexuality. It has been held, however, that “these rights will fail in the face of evidence that their exercise will result in emotional harm to a child or will be detrimental to the child’s welfare.” N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo.App., W.D.1980). Wife and lover show affection toward one another in front of the children. They sleep together in the same bed at the family home in Union. When Wife and four children travel to St. Louis to see Airrow, they also sleep together there. All of these factors present an unhealthy environment for minor children. Such conduct can never be kept private enough to be a neutral factor in the development of a child’s values and character. We will not ignore such conduct by a parent which may have an effect on the children’s moral development.

This analysis is sufficient to answer the aspects of Wife’s and A.C.L.U.’s constitutional arguments.

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Bluebook (online)
735 S.W.2d 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seg-v-rag-moctapp-1987.