Gay father loses his bid for custody

BOISE – The Idaho Supreme Court on Tuesday ruled that sexual orientation should not be the basis for custody decisions, but it still denied a gay father’s bid for custody.

The ruling settles the custody case of Theron McGriff, a divorced Idaho Falls father who claimed homosexuality should be given no more weight when determining child custody than other factors such as religion or health.

McGriff appealed to the high court after a magistrate ruled in February 2002 he could no longer see his two young girls if he lived with his male partner of eight years.

Bonneville County Magistrate Mark Riddoch sided with McGriff’s ex-wife, Shawn Weingartner, who said that she feared the children would suffer backlash from the conservative, heavily Mormon town because of their father’s sexuality, and that she wanted McGriff to undergo counseling over how to explain his sexual orientation to the girls.

In the 4-1 ruling, the high court agreed with the lower court’s findings that the children were having difficulty handling joint custody arrangements and that McGriff’s refusal to communicate directly with his ex-wife provided a sufficient basis to consider changing the custody arrangement.

The Supreme Court also found there was sufficient evidence to support the lower court’s conclusion that Weingartner was best suited for sole legal and physical custody of the children.

However, the court also addressed the larger issue of how sexual orientation generally should apply in cases where one of the parents is gay.

“Sexual orientation, in and of itself, cannot be the basis for awarding or removing custody,” the court said in a prepared statement. Sexual orientation should only be considered for custodial purposes if the orientation is shown to cause harm to the child, the statement said.

Justice Wayne Kidwell was the lone dissenter, saying the lower court abused its discretion by wrongfully taking McGriff’s sexual orientation into consideration at all.

“This should not be the law of Idaho and is undesirable public policy,” Kidwell wrote.

McGriff’s legal advisers, the National Center for Lesbian Rights, said the father was unable speak with reporters after the decision was released Tuesday afternoon.

“He’s too upset to talk to the press today. He’s devastated,” said Shannon Minter, an attorney with the San Francisco-based organization.

“The Idaho Supreme Court has articulated a wonderful principle which, going forward, will protect gay and lesbian parents. But they turned a blind eye to the record in this case.”

Marie Tyler, an attorney for Weingartner, said her client also was not speaking to reporters but was pleased with the decision.

“The court saw the issue as we saw it,” Tyler said by telephone from her Idaho Falls office. “I have felt all along that this was a case of child custody rather than gay rights.”

Tyler said McGriff still has substantial and unsupervised time with his daughters, including many weekends, holidays and summer vacations. However, he will have to continue living apart from his partner as a precondition of those visits.

The decision marks the first time the Idaho Supreme Court has addressed the issue of sexual orientation in a custody proceeding. It is also the first time such a decision has been rendered from a state court in light of a U.S. Supreme Court decision in a Texas case last year, Lawrence v. Texas, which legalized the practice of homosexuality as constitutionally protected, Minter said.

“There have been very few decisions that have grappled with what the Lawrence decision means,” Minter said. “The Idaho Supreme Court is now the first court in the nation to talk about what the Lawrence decision means for child custody cases.”

The American Civil Liberties Union of Idaho issued a statement late Tuesday hailing the basis of the decision but said it was disappointed in the outcome for McGriff.