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Landmark decision

The Idaho Supreme Court’s ruling in McGriff vs. McGriff paradoxically sets a major legal precedent by ruling that a parent can’t lose custody of his or her children simply because of the parent’s sexual orientation, but still affirms a lower court’s decision to end joint custody of Shawn and Theron McGriff’s two daughters and allow the father visitation rights only if he is not living with his male partner.

In its 4-1 opinion, the court wrote, “Homosexuality in and of itself cannot be a circumstance upon which custody can be modified.” That was the basis on which the mother sought to end the joint custody arrangement, which had the kids shuttling between the parents twice a week.

However, the lower court found that there were other reasons to change the arrangement, including the father’s refusal to communicate with the mother, and the male partner’s alleged telephone harassment of the mother and hostility toward her. A court-appointed evaluator recommended that joint custody continue, and noted that the children didn’t want a change. But he also recommended joint counseling, which the father refused to attend.

Justice Wayne Kidwell dissented, saying the ruling on the law was correct, but the custody decision by the lower court shouldn’t have been upheld. “A review of the record, the pleadings and oral argument before this court make it clear that Theron’s sexual orientation was wrongfully taken into consideration by the lower court and now the majority opinion,” Kidwell wrote in his dissent. “This should not be the law of Idaho and is undesirable public policy. Therefore, I respectfully dissent.”

Justice Dan Eismann concurred in the result of the decision, but apparently not in the legal arguments. However, he offered no dissenting view.

Jack Van Valkenburgh, head of the Idaho ACLU, said, “Idaho’s court is now one of the first supreme courts in the nation to acknowledge that sexual orientation, by itself, can’t be a factor in modifying custody.” But he expressed disappointment at the custody decision. Kidwell’s dissent, Van Valkenburgh said, was “absolutely right.”

It’s a case that reaches to sensitive subjects in society today, from the rights of homosexuals to live their lives, to the pain of divorce, to the role of courts in determining what is in the best interest of children when parents disagree. You can read both the decision and the dissent online; see what you think.

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Betsy Z. Russell covers Idaho news from The Spokesman-Review's bureau in Boise.

Named best state-based political blog in Idaho for 2013 by The Fix

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