Wednesday, November 2, 2011

South Carolina appeals court reverses custody award to father that was based in part on mother's abortion

Since the mid 1970's, gay rights advocates, and advocates for children, have argued that a judge's view of the morality of a gay or lesbian parent should not influence the judge's decision on custody or visitation. Gay and lesbian parents do continue to lose custody or face vistitation restrictions in some counties and states, but rulings explicitly based on morality are rare.  Of course some parents avoid the risk of losing custody altogether by agreeing to keep their partner away from the children, and that tells me that such risk still exists.

A case decided by the South Carolina Court of Appeals last week raises a different issue about morality.  In Purser v. Owens, a trial court removed an eight-year-old autistic child from the only home he had ever known, with his mother, and transfered custody to the child's father, who lived in North Carolina, had never lived with him, and had little contact with him for the first six years of his life. The parents were never married.  Among the reasons:  when she was 35, the mother had a brief affair with a 19-year-old; when she became pregnant, she had an abortion.  The trial judge said this:
Other things I'm concerned about is the pregnancy with a 19 year old and abortion. That was an irresponsible decision; two irresponsible decisions. First being involved with a 19 year old when you are 36 or 35. That's irresponsible. And then having an abortion. That's irresponsible. I am concerned about the environment.
Three years later (there is no accounting of how it took three years for this appeal to be resolved), the appeals court reversed the custody decision and sent it back for a decision without considering the mother's abortion, because the abortion had no direct or indirect effect on the child and was therefore not relevant.

Most of the opinion is devoted to whether the father should have had to prove there was a "change of circumstances" to get custody of the child.  The majority ruled that since it was the first legal determination of the child's custody, the father did not have that burden.  A vigorous dissent disagreed, reasoning that the father approved the custody arrangement with the mother by never trying to change it and should have to meet a higher burden to change custody after such a long time.

I'm afraid that this ruling, as good as it is for the principle that a mother should not be penalized because she had an abortion, will be of little help to Angela Owens, the mom in this case.  There's nothing about the trial judge's ruling being stayed pending appeal, so it is likely that the child has been living with his father for three years.  If that placement is going well enough, a judge may be reluctant to disturb it.

Two other notable things about this case.  The father was married.  The trial court might well have preferred a married couple home over the mom's single parent family.  And the mother alleged that the father filed for custody after she went after him for child support.  If that's true, it's not the first time, and such a sequence of events should suggest some real bad faith on the father's part.

Finally, given the discretion accorded judges in deciding custody, this ruling might have been affirmed if the judge had not mentioned the abortion.  Certainly there are recent court decisions involving gay fathers and lesbian mothers where the judge says that sexual orientation is playing no role in the decision.  An appeals court will usually take a judge at his or her word in that regard.  This judge could have said he was not considering the abortion, or he could have not mentioned it.  But he did, and at least the case stands for the proposition that he should not have.

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