Brief Fact Summary. During custody proceedings, father produced testimony that demonstrated mother participated in homosexual activity. The court awarded sole custody of the children to father based on this activity.
Synopsis of Rule of Law. A per se rule that a parent who engages in homosexual activity is unfit to be the custodian of his or her child is incompatible with the best interests of the child standard. A nexus approach whereby the relevant issue is not the nature of the parent’s sexual activity but whether that activity adversely affects the child is more congruent with the best interests of the child.
Held. An irrefutable presumption, where a parent’s homosexual conduct is, alone, determinative, is inherently inconsistent with the best interests of the child standard.
In Missouri the court determines custody by the best interests of the child, generally deeming a good environment and stable home to be the most important, relevant consideration in custody matters. The character, conduct, behavior, morals, and mode of life of the parents are proper considerations. The focus is on whether conduct in question is detrimental to the child’s welfare, with adultery, promiscuity, or sexual misconduct standing alone insufficient to deem a parent unfit if unaccompanied by evidence that the conduct adversely affected the child.
Missouri court’s appear to apply a per se rule, establishing an irrefutable presumption that a parent who engages in homosexual behavior is unfit to be the custodian of his or her child. Such a presumption is inconsistent with the best interests of the child standard, because the standard requires consideration of all factors relevant to the child’s welfare. Such a decision may permit a decision contrary to the best interests of the child in some cases.
This court adopts a nexus approach, whereby the relevant issue is not the nature of the parent’s sexual activity but whether that activity adversely affects the child. Generalizations of the impact of a parent’s sexual conduct outside the presence of a child, as well as disapproval of morals are impermissible.
Discussion. The court acknowledged that the per se rule had been upheld in previous cases, but felt that it was not compatible with the best interests of the child standard.