Family Law Keyed to Weisberg

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Topic /161
Delong v. Delong

Citation. Delong v. Delong, 56 Wis. 514, 14 N.W. 591, 1883 Wisc. LEXIS 395 (Wis. 1883)

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.

Facts. Mother and father were married in 1985. As a condition of marriage, father asked mother to submit to a psychological evaluation to test the parties’ compatibility for marriage. During a meeting with the father’s psychologist, mother revealed that she was sexually attracted to both men and women and had engaged in sexual activity with women in the past. Based on mother’s expressed commitment to a monogamous relationship, father married mother. Three minor children were born to the marriage, and mother stayed home to care for them as well as father’s son from a previous marriage. In 1994 mother filed a petition for dissolution of marriage requesting joint legal custody of the minor children and that she be designated the primary physical custodian of the children. Father filed an answer requesting the court dissolve the marriage and award him sole custody with restricted visitation to mother. Evidence was presented at trial that mother engaged in homosexual conduct and in
volved herself in extramarital affairs with women during the marriage after concluding the marriage was irreparable. Mother testified that all sexual encounters had been discreet and the children did not know the nature of the relationships. Father testified that he had an extramarital relationship after separation. The trial court awarded sole custody of the children to father, finding this would be in the children’s best interests due to mother’s homosexual relationships. The court also restricted mother’s visitation with the children, ordering her to refrain from having any person known to be a lesbian present during visitation. It further directed the guardian ad litem to monitor a telling session where mother would tell the two older children that she is homosexual.

Issue. Were the court’s rulings based on an apparent per se rule that a parent who engages in homosexual behavior is unfit to be custodian of his or her child consistent with the best interests of the child inquiry?

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.