Synopsis: Missouri courts are in the minority of jurisdictions in the application of the "best interests of the child" standard in child custody proceedings where the homosexuality of one parent is at issue. The author of this article analyzes a recent Court of Appeals case and subsequent Supreme Court case, Delong v. Delong, No. WD52726 (Mo. App. W.D. Jan. 20, 1998), superseded by J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. Banc 1998) (Mo. September 24, 1998), where the Court of Appeals and the Supreme Court of Missouri addressed child custody law in Missouri as applied to homosexual parents. The article concludes that Missouri courts circumvent the best interests of the child standard where homosexuality is a factor in child custody disputes and that the nexus test, as applied by the Court of Appeals in Delong, is the appropriate test to apply when homosexuality is a factor in custody disputes.

"Between eight and fourteen million children [in the United States] are being raised in homes headed by a lesbian or gay parent."¹ Most of these children were born into heterosexual relationships, with one parent, sometimes both, discovering at some point that he or she is inclined to engage in sexual, relationships with persons of the same gender.² This situation may lead to custody battles in court in which the heterosexual parent raises the issue of homosexuality in order to gain custody of the children.³ It is unknown how many of these cases never reach trial because of parents' reluctance to expose their personal lives to the scrutiny of the courts, which likely may deny custody to a homosexual parent.⁴

This article focuses on child custody law in Missouri as it affects homosexual parents. The paper begins by discussing the three approaches that state courts use when considering the homosexuality issue in child custody determinations: the nexus test, the presumption of harm approach, and the per se rule. Second, the article discusses stereotypes that courts apply to justify using the latter two approaches, and compares these justifications with those used to support miscegenation laws and the use of the race factor in child custody proceedings where one parent was involved in an intimate interracial relationship. Next, the article reviews the best interests of the child standard as generally applied by Missouri courts in custody determinations and the application of this standard when courts review the morality factor as to heterosexual parents. Finally, this article discusses Missouri courts' consideration of the best interests of the child standard when homosexuality is an issue in custody determinations, including an analysis of the most recent Missouri case on this subject, Delong v. Delong.⁵

I. Background

In a majority of jurisdictions, the issue of homosexuality is only relevant where the conduct of the homosexual parent is shown to have an adverse effect on the children.⁶ Where the issue is raised without evidence of harm, most jurisdictions will not consider the homosexuality of one parent in making a custody determination.⁷ This approach is most commonly known as the nexus test. Courts that apply this test require that a parent's behavior be shown to have an adverse effect on the child before the court will consider the behavior relevant to the custody determination.

However, many jurisdictions, including Missouri, deny custody to and impose restrictive visitation on homosexual parents based on a presumption that homosexual parents are per se unfit custodians, or that exposure to homosexuality is likely to cause children harm in the future.⁸ The per se test amounts to an irrebuttable presumption that a homosexual parent is unfit as a custodian of his or her children.⁹ Where this test is applied, courts generally stop their analysis of any other relevant factors and make a custody determination based solely on the homosexuality of one parent, without regard to whether the homosexuality has an adverse effect on the child.

The presumption of harm approach relies on the justification that a child is likely to suffer harm in the future from exposure to the parent's homosexuality.¹⁰ Courts that apply this approach almost always deny custody to the homosexual parent, and allow visitation only upon agreement by the parent not to expose the children to homosexuality.

From a practical standpoint, the presumption of harm approach is not much different from the per se approach in that the end result is that homosexual parents are denied custody of their children based solely their homosexuality, without a showing of present or likely harm.

Additionally, both the per se and presumption of harm approaches are based on stereotypes of homosexuality. Common justifications cited by courts as reason to deny custody to homosexual parents are that children of homosexual parents may develop gender identity problems; children of homosexual parents will grow up to be homosexual; exposure to homosexuality will affect the moral development of the child; homosexuals are predisposed to child molestation; and children of homosexual parents will be socially ostracized by their peers and communities because of their parents' sexual orientation.¹¹ Although these stereotypes are not supported by the majority of scientific studies on the subject,¹² many courts continue to cite these reasons to justify denial of custody to homosexual parents, and often ignore or discount expert opinions that these stereotypes are unfounded and irrational.¹³

The stereotype relating to social ostracism is the one myth most often cited by courts as a reason to deny custody to homosexual parents. Interestingly, this same rationale was used to support miscegenation laws, which outlawed interracial marriages in many states. Among many rationales used by states -- and accepted by courts -- to support these laws, one was that interracial couples and their offspring would be subject to harassment by their communities.¹⁴ After rejecting attacks on miscegenation laws for 100 years, the U.S. Supreme Court, in Loving v. Virginia, finally rejected such racial classifications as "directly subversive of the principle of equality at the heart of the Fourteenth Amendment."¹⁵

Despite this advancement in the law, state courts continued to use the social ostracism rationale to deny custody to parents who were engaged in interracial relationships until 1984. In Palmore v. Sidoti, the United States Supreme Court refused to continue allowing state courts to use a parent's interracial relationship as a ground for denying that parent custody of his or her children.¹⁶ Flatly rejecting speculative stigma and societal prejudices as appropriate considerations in custody proceedings, Chief Justice Burger stated:

[The issue is] whether . . . private biases and the possible injury they might inflict are permissible considerations for removal of an infant child from the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.¹⁷

Although Palmore v. Sidoti was decided in a race context, this statement could also apply to rebut the justifications used by many courts, including those in Missouri, to deny custody and restrict visitation to homosexual parents.

II. Missouri Law: Best Interests of the Child

Generally, the determination by courts of the custody status of minor children in dissolution or post-dissolution proceedings is based almost universally on the best interests of the child standard.¹⁸ In other words, courts grant, deny or split custody of minor children by reviewing a variety of factors to determine in whose custody the children's interests will be best served.¹⁹

During a dissolution proceeding in Missouri, minor children of the parties become wards of the court and the court steps in as parens patriae to represent their interests, with the court exercising broad discretion in determining how the best interests of the children will be served.²⁰ Like most courts, the "best interests of the child" is the single standard by which Missouri courts decide which parent is best suited as the primary or sole custodian of minor children.²¹

Specifically, under Missouri statute, courts are required to determine the best interests of the child by considering all relevant factors, including, but not limited to:

(1) The wishes of the child's parents as to his custody and the proposed parenting plan submitted by both parties;

(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child's best interests;

(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

(5) The child's adjustment to the child's home, school, and community;

(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner tha best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;

(7) The intention of either party to relocate the principal residence of the child; and

(8) The wishes of a child as to the child's custodian.²²

"The factors listed in this statute are not exclusive . . . [and] must be considered . . . with all relevant factors,"²³ which may include, for example, home environment, stability, parenting skills, moral fitness, attempted alienation of the child, religious beliefs, and custodial preference of the child.²⁴ The factor most relevant for purposes of this article -- moral fitness -- which includes the sexual conduct of parents,²⁵ is a proper consideration, according to Missouri courts, for determining the best interests of the child.²⁶ However, Missouri courts generally look beyond the sexual conduct of parents to the record as a whole when determining custody issues.²⁷

III. The Morality Factor as to Heterosexual Parents

The case law interpreting and applying § 452.375, RSMo, to situations where one parent is accused of immoral²⁸ conduct, for purposes of child custody determinations, requires that there be a direct nexus between the conduct and an adverse effect on the child before custody will be denied that parent on grounds of immorality.²⁹ In other words, evidence of an adverse effect on the child as a result of the sexual or "immoral" conduct must be shown to justify an award of custody to one parent over another.³⁰

A number of Missouri Court of Appeals decisions address this issue. For example, the Missouri Court of Appeals, Eastern District, found in one case that the custodial mother's cohabitation with men did not justify a change in custody to the father.³¹ The court stated, "The evidence concerning mother's frequent moves and lifestyle was not shown to significantly and directly affect the welfare of the child and, therefore, does not support a change in custody."³²

In another Eastern District case, the court upheld the trial court's denial of change of custody where the father claimed that the morality of the children was injured because the mother allowed her boyfriend to stay overnight with her while the children were in her custody.³³ The father claimed that the children's testimony that thhe "saw nothing wrong" with their mother's out-of-wedlock relationship with a man was illustrative of damaged morality because the father believed that the children were no longer able to morally distinguish between the father's marital relationship and the non-marital relationship of the mother.³⁴ However, the court acknowledged the general rule that "the mere existence of extramarital sexual conduct, without an injurious effect on the child, does not render a parent an unfit custodian."³⁵

In a case from the Court of Appeals for the Southern District, the court reversed the trial court's decision to change custody of a child from the mother to the father based on the mother's out-of-wedlock sexual relationships with men.³⁶ In the opinion, the court stated, "While it is proper for the trial court to consider the morals and lifestyle of the parties in a custody proceeding, a change in custody is warranted only where the moral conduct is such as to affect directly the physical, mental, economic or social well-being of the child."³⁷

In another Southern District case, the court upheld the trial court's decision granting custody of children to the mother, despite the fact that the mother had co-habitated with a man and had previously been engaged in two adulterous relationships with men.³⁸ The trial court found no evidence that the mother's care of the children had ever "fallen below acceptable standards or that she had ever shirked her parental responsibilities."³⁹ Moreover, the court found no evidence that placing the children with the father would enhance their well-being.⁴⁰ The court noted that courts generally accept the notion that "adultery, standing alone, does not require a change of custody of children from one parent to the other."⁴¹ According to the court's opinion, only in cases where immoral behavior of a parent directly affects the well-being of a child will change of custody to the non-offending parent be justified.⁴²

Additionally, the Court of Appeals for the Western District affirmed a trial court's decision to deny change of custody from the mother to the father based on the mother's non-marital sexual relationship with a man.⁴³ On review, the court found that "[t]here [is] nothing in the record to suggest that the welfare of the child has been or will be adversely affected by any conduct of [the mother]."⁴⁴

In yet another case decided by the Western District, the court upheld the trial court's decision to deny a change of custody to the father, despite an extramarital affair by the mother while the parties were separated and subsequent cohabitation with a man after the parties were divorced. The court stated that the issue was "not condemnation or approval of a moral standard but whether the conduct in question is a detriment to the child's welfare."⁴⁵

Interestingly, at least two Missouri courts have upheld trial courts' decisions to grant a change of custody to non-custodial parents who were involved in non-marital relationships with persons of the opposite sex. One case involved a situation where the mother, who had physical but not legal custody of the child, was granted legal custody despite the fact that she was living with a man to whom she was not married.⁴⁶ In a similar case, the court granted change of custody to the father, with whom the child had been living for five years and who was living with a woman to whom he was not married.⁴⁷ Although the court voiced its disapproval of this living arrangement,⁴⁸ the court nevertheless noted that the "relationship alone [did] not make the father an unfit custodial parent."⁴⁹ The court in both of these cases looked beyond the non-marital relationships and considered a variety of factors to conclude that the best interests of the children would be served by granting legal custody to the "offending" parents.

Even where Missouri courts have denied custody to parents engaged in adulterous or cohabitating relationships with persons of the opposite sex, the courts have considered a variety of factors apart from the sexual behavior of the parents and have required a showing that the conduct had or was likely to have an adverse effect on the children.⁵⁰ For example, one case involved a situation where the father was awarded custody of the child at the initial dissolution proceeding and the mother appealed.⁵¹ The court included in its findings that the father occasionally smoked marijuana and conflicting evidence showed that he may have been involved in an extramarital affair.⁵² The mother admitted that she had engaged in numerous extramarital affairs.⁵³ Moreover, evidence was presented that the mother was suspected of stealing from her former employer, that she had been convicted of trespassing on a former employer's property, that she changed jobs frequently, and that she spent many nights during the week bar-hopping.⁵⁴ Although the appellate court did not address how this behavior might have a detrimental effect on the welfare of the child, it is significant that the court looked beyond the sexual conduct of both parents in making its decision to uphold the trial court's ruling as to custody.

Another appellate court upheld a trial court's denial of a change in custody to a father whose girlfriend regularly spent the night with him while his daughter was in his care.⁵⁵ However, the court did not base its decision on the sexual conduct alone. More importantly, the court found that the 13-year-old daughter, who was in the primary care of her mother, was an "A" and "B" student with an excellent school attendance record.⁵⁶ Although the girl expressed to her grandmother that she preferred to be in her father's custody, the reason she gave for this desire was because her father let her go out with her friends without adult supervision.⁵⁷ The court found that the evidence simply did not support a change of custody to the father, but did not base its decision solely on the sexual conduct of the father.⁵⁸

In another decision, the Court of Appeals reversed the trial court's award of custody to the father of two teenage children primarily because the father failed to provide proper supervision for the teenagers.⁵⁹ Although the court considered the fact that the father cohabitated with a woman while his teenage daughter was in his custody, the court specifically noted that "[a]dultery in itself will not necessarily disqualify a parent as unfit."⁶⁰ In fact, the court found the record "devoid of any evidence" that the father's cohabitation with a woman significantly affected the daughter's best interest.⁶¹ The reversal of the custody award was premised on the lack of supervision over the son and the undesirability of separating the two siblings.⁶² However, the court did review the record as a whole in coming to its conclusion.⁶³

Finally, in another case, the Court of Appeals upheld a trial court's decision to change custody from the mother to the father where the father alleged that the mother was cohabitating with a man.⁶⁴ The court noted, however, that "[i]t is not each factor individually that supports the change of custody but a combination of all the factors."⁶⁵ As such, the court found that the kindergarten-aged child suffered emotional problems, which were manifested by incontinency while in the mother's care.⁶⁶ Moreover, the court found that the father's new wife had a child the same age as the father's child, was a full-time homemaker, and that the father's parenting skills are better "tuned to the boy's well being" than the parenting skills of the mother.⁶⁷ In short, the appellate court found that the trial court was in a better position to judge the credibility and character of the witnesses and that, overall, the evidence justified that a change in custody would better serve the best interests of the child.⁶⁸

IV. The Homosexual Factor Applied By Missouri Courts

In sharp contrast to Missouri courts' treatment of heterosexual conduct as a factor in determining child custody issues, courts in Missouri apply a much higher level of scrutiny to homosexual behavior of parents. Although not all Missouri courts appear to apply a pure per se rule as to homosexuality, most courts apply at least the presumption of harm approach when they deny custody to homosexual parents. The "presumption of harm" approach, however, appears only to be the per se rule in disguise: courts are using stereotypes and speculation to circumvent the nexus test that courts apply in cases involving heterosexual conduct and the moral fitness factor.

Some Missouri appellate opinions completely avoid the issue as to whether a parent's homosexual relationship has an adverse effect on the child, but rather focus on whether the homosexual relationship exists. In finding that the relationship indeed exists, courts often make the judgment to award custody to the heterosexual parent without regard to any other factors listed in § 452.375.2, RSMo, or case law interpreting that statute. For example, the Court of Appeals for the Western District upheld a trial court's change of custody from the mother to the father based on the mere fact that the mother appeared to be romantically involved with a woman.⁶⁹ The court reviews the evidence in the record that points to the existence of the lesbian relationship and focuses on the apparent adoration by the 9-year old daughter of the mother's girlfriend. The court hints at the possible influence the friendship between the daughter and the mother's girlfriend may have on the future development of the daughter's sexual identity.⁷¹ As to this suggestion, the court states:

There emerges from the evidence a picture of Betty [the girlfriend] as a powerful, dominant personality. She had befriended Julie [the daughter] and had won her affection and her loyalty. She had broached the idea of homosexuality to the child. Allowing that homosexuality is a permissible lifestyle - an "alternate lifestyle", as it is termed these days - if voluntarily chosen, yet who would place a child in a milieu where she may be inclined toward it?⁷²

A psychiatrist testified that the daughter, in her mother's care, was well-adjusted, lived in a stable home environment, had an outstanding academic record, had healthy, normal relationships with the boys in her neighborhood, wished to stay with her mother, and distrusted her father. She further testified that the child showed no ill-effects from living with her mother and being in the company of her mother's girlfriend. However, the court made no attempt to review the parental qualifications of the father when the change in custody was awarded to the father. The court stated emphatically, "If the child's situation is such that damage is likely to occur as her sexual awareness develops with the approach of young womanhood, the court may in a proper case remove her from the unwholesome environment."⁷³

The same thinking was used by the Southern District Appeals Court two years later.⁷⁴ Despite extensive evidence presented by social and clinical psychologists that the children would not be adversely affected by living with their mother and her lesbian lover,⁷⁵ the court dismissed the evidence as "abstractions" and "nonsense" in the given context.⁷⁶ For example, the court noted that the mother's shower curtain and toilet seat cover portrayed naked women,⁷⁷ the mother and her lover were openly affectionate in front of the children,⁷⁸ the mother took the children to a church where they saw gay and lesbian couples, and were approached by teenagers who made an inappropriate comment to them.⁷⁹ The court attempts to make a connection between these facts and the welfare of the children by pointing out that one of the older children stated that she doesn't love her mother "that much" because of "what she is."⁸⁰ In addition, the court points out that the other teen-aged child preferred not to visit his mother because of the open lesbian relationships in which her mother had engaged in his presence.⁸¹ The court accepted the trial court's finding that the mother's lifestyle had alienated the older children, while defending the alienating conduct of the father as an attempt to "inform and educate the child" about his mother's sexuality.⁸² Furthermore, the court accepted findings of fact that the children had been teased due to the mother's "well known" lifestyle and found that the older children's reactions to the mother's relationship showed that their mother's homosexuality was likely to have a "devastating effect . . . upon the children."⁸³ Based on the belief of a connection between the mother's homosexuality and the "probable" adverse effect on the children, the court concluded that the "findings of fact clearly carry the legal conclusion that any contact between . . . or any other lesbian lover of the [mother] and the children would, in fact, impair [the children's'] emotional development."⁸⁴

In another case decided nine months later in the Western District, the court upheld the trial court's decision to restrict a father's visitation from overnight visitation, taking his child to "gay activist social gatherings," and attendance at "a Christian church with a primary out-reach for historical needs to the gay community."⁸⁵ The court rejected the father's primary argument that the trial court erroneously disregarded testimony of expert witnesses who stated that the child had not suffered psychological damage arising from his association with the father. Expert witnesses also testified as to the various theories explaining the cause of homosexuality and explained that child molestation by homosexuals is rare compared to that of heterosexuals.⁸⁷ After a lengthy discussion of the rules of evidence and the standards by which a trial court could accept or reject expert testimony, the court flatly rejected the expert testimony as "suspect" and questioned the experts' credibility.⁸⁸ In fact, the court rebutted the expert testimony as to molestation by citing seven cases involving molestation by homosexuals, and concluded that "given the statistical incidence of homosexuality in the population . . . homosexual molestation is probably, on an absolute basis, more prevalent [than heterosexual molestation]."⁸⁹ Additionally, the court focused on testimony by the father that he thought it would be "desirable" for his son to be homosexual.⁹⁰ The court supported the trial court's findings that, based on this testimony and the child's exposure to homosexuality, "the father hopes that the son will be a homosexual . . . [and] the father's purpose is to . . . encourage his son to become a homosexual."⁹¹

Furthermore, the court rejected the experts' opinions about the causation of homosexuality⁹² by citing the fact that "the father has engaged in a heterosexual relationship with the mother of this child and produced a child" and that the father had engaged in at least one heterosexual relationship since his divorce.⁹³ Through all of its analysis, the court makes no reference to the mother's parenting skills or the home environment provided by her.⁹⁴ More importantly, the court cites no evidence to connect the father's homosexuality with any adverse effect on the child, but rather speculates on the possibility that the son may develop homosexual tendencies due to exposure to his father's lifestyle.

Similarly, an Eastern District opinion upheld the trial court's decision to deny custody of children to their lesbian mother.⁹⁵ The court's conclusion was based on the facts that the mother and her lover are openly affectionate with each other in front of the children,⁹⁶ that they sleep together in the same bed,⁹⁷ and that they are open about their relationship to the children and the community in which the mother resides.⁹⁸ Although the court acknowledges the fact that the mother and father are "loving, caring parents,"⁹⁹ the court concluded the mother's home to be an "unhealthy environment".¹⁰⁰ The court avoids applying a pure per se rule, but instead applies the presumption of harm approach, disregarding authority presented by the mother¹⁰¹ that "there are no significant differences among heterosexual parents and homosexual divorced parents and their children."¹⁰² The court states, "Union, Missouri [the mother's residence] is a small, conservative community with a population of about 5,500. Homosexuality is not openly accepted or wide-spread. We wish to protect the children from peer pressure, teasing, and possible ostracizing they may encounter as a result of the 'alternative life style' their mother has chosen."¹⁰³ The court offers no evidence of actual "ostracizing" or harm to the children, and simply dismisses the mother's arguments as "lacking."¹⁰⁴

Another Western District opinion upheld the trial court's grant of custody to the father based solely on the fact that the mother was a lesbian.¹⁰⁵ In response to the mother's objection to the trial court's ruling, the Court of Appeals responded by stating, "[A] court cannot ignore the effect which the sexual conduct of a parent may have on a child's moral development . . . There is far more to the welfare of the child than the physical condition of the house in which it lives."¹⁰⁶

However, the dissent in this case notes:

The mother provides the child with his own room in a well kept house, enrolls him in pre-school, has a steady nursing job, cares about the child, and, despite sleeping with and occasionally hugging a woman, has stated under oath she would discourage her son from emulating her sexual preference. The father has a limited education, an income of $6500 and lives in basically a one room cabin containing a toilet surrounded by a curtain; the child sleeps in a foldup cot by a woodstove and plays in an area littered with Busch beer cans . . . To say it is in the best interests of this little boy to put him in the sole custody of the father . . . would be and is a mistake.¹⁰⁷

The dissent further criticizes the majority, as well as previous courts faced with this subject, for disguising a per se rule behind an irrebuttable presumption of harm rule.¹⁰⁸ The dissent proposes, at the very least, to recast this presumption as rebuttable "so courts deciding the best interests of children may do so with complete information rather than per se rules."¹⁰⁹

At least one Court of Appeals case upheld the trial court's decision to grant primary custody to the mother, whom the father alleged to be a lesbian.¹¹⁰ However, the court reiterated the per se rule in its opinion,¹¹¹ and based its ruling on the fact that the trial court did not find that the mother and "her alleged lesbian lover . . . denied being or ever having been lesbians."¹¹² It appears from the opinion, however, that if the court had found that the weight of the evidence showed that the mother was indeed a lesbian, the court would have reversed the trial court and awarded primary custody to the heterosexual father, without regard to other factors that may affect the best interests of the child.¹¹³

Some Court of Appeals opinions note that society's views about homosexuality may be changing in favor of homosexuals, but continue to find that exposing a child to homosexuality, even in a loving, stable environment, will result in some sort of emotional harm to the child.¹¹⁴ For example, a Court of Appeals for the Southern District decision reduced a gay father's visitation to "supervised visitation in the presence of a responsible adult" and prohibited the overnight visitation that had been established by the original trial court in Texas.¹¹⁵ The court based its decision on the following facts: The father lived with a male he would probably marry if he were legally permitted to do so;¹¹⁶ the father testified that it is "best that she [the child] know who her father is and to know what her father is";¹¹⁷ the father believed that "it would be a healthy and broadening influence upon the child's upbringing and development to be exposed" to his relationship with his lover;¹¹⁸ no sexual activity between the father and his lover was ever exhibited in front of the child, but the couple did engage in hand holding and kissing in front of the child;¹¹⁹ the father and mother both acknowledged that AIDS has a higher occurrence among homosexuals than the general public;¹²⁰ and the mother testified that she observed uncharacteristic "clinging" behavior in her child and observed vaginal swelling and a vaginal tear after the daughter returned from one of her visits with her father and his lover.¹²¹ However, the mother did not present any expert testimony as to the possible cause of the symptoms and did not provide any evidence to link the symptoms with any conduct of the father or his lover.¹²² In fact, the dissent in this case noted that the mother did not even cite the physical symptoms in her brief to the court.¹²³ The court rests its decision to essentially strip the father of all meaningful visitation on a child abuse charge by the mother,¹²⁴ as well as what the majority opinion calls an appropriate summary of Missouri law and the laws of "many other states":

[G]iven its concern for perpetuating the values associated with conventional marriage and the family as the basic unit of society, the state has a substantial interest in viewing homosexuality as errant sexual behavior which threatens the social fabric, and in endeavoring to protect minors from being influenced by those who advocate homosexual lifestyles.¹²⁵

The dissent in J.P. v. P.W. rejects this reasoning by the majority as the "type of generalization that courts should not make."¹²⁶ The dissent advocates a nexus rule and further states, "Each custody case, whether a parent is homosexual, is different and should be determined on its own facts."¹²⁷ Finally, the dissent recognizes the best interests of the child are served by spending quality, unsupervised time with each parent, regardless of the parents' sexual orientation, and concludes that the majority opinion results in "a serious mistake" as to the welfare of the child.¹²⁸

At least two Missouri cases involving the issue of child custody and gay parents explicitly state that there is no per se rule in Missouri.¹²⁹ However, one of these cases, T.C.H. v. K.M.H.,¹³⁰ appears to misread the authority for its position that "[t]here must be a nexus between harm to the child and the parent's homosexuality."¹³¹ This quote from S.E.G. appears, from the context, to be the proposition offered by the gay parent in that case, and not the rule stated by the court itself. The relevant section of S.E.G. is as follows:

Wife contends that homosexuals have parental rights as well as heterosexuals, and that those rights cannot be denied solely on the basis of Wife's lesbian relationship. There must be a nexus between harm to the child and the parent's homosexuality. It has been held, however, that "these rights will fail in the face of evidence that their exercise will result in emotional harm to a child or will be detrimental to the child's welfare." N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. App. W.D. 1980).¹³²

The sentence reciting the nexus rule immediately follows the first sentence in the paragraph which begins, "Wife contends . . .," and is not followed by a citation to authority.

The court in T.C.H., relying on N.K.M. and S.E.G., upheld the trial court's denial of custody to the mother, whom the father accused of being a lesbian.¹³³ The evidence of adverse effects on the children, as presented by the father and accepted by the court, was that the mother had slept with a female lover while the children were in her house, the potential for future harm facing the children if mother retained custody, her son's familiarity with "how girls masturbate," the son's recognition of the book The Joy of Gay Sex while in a bookstore with his father, and child's game observed by the father where the son assumed the role of "Gay Ed."¹³⁴ However, both children expressed desire to live with their mother,¹³⁵ and psychologists and social workers testified that the mother would be a better custodian than the father.¹³⁶ Moreover, the evidence relied on by the court showed no adverse impact on the children, but merely reflected the father's discomfort with the subject matter.

V. Delong v. Delong ¹³⁷

The most recent case in Missouri regarding the fitness of homosexuals as custodians of their children is Delong v. Delong,¹³⁸ where the Court of Appeals for the Western District rejected all of the previous Missouri cases that denied custody to gay parents solely based on their homosexuality.¹³⁹ The case was transferred to the Supreme Court of Missouri, where the Court upheld the trial court's denial of custody to the lesbian mother.¹⁴² Both opinions are likely to have an important impact on the interpretation of the case law discussed herein, as well as the development of child custody law in Missouri.

The Delong's married in 1985. After nine years of marriage, Mrs. Delong moved out of the family home with the children and filed for divorce. Both parents engaged in extra-marital affairs during the marriage. While Mr. Delong's affair was of a heterosexual nature, Mrs. Delong's affairs were with women, which became the primary focus of the court battle over which parent should get custody of the children.¹⁴¹ The trial court denied custody to Mrs. Delong, focusing on the fact that she is a lesbian. The case was appealed to the Missouri Court of Appeals, Western District.

The Court of Appeals Opinion¹⁴²

Judge Ulrich's majority opinion in Delong, although superseded by the Supreme Court of Missouri nine months later, represents the only Court of Appeals decision that accurately reflects the best interests of the child standard as it should be applied to child custody determinations involving a homosexual parent. First, the opinion recognizes the general rules that are applied in custody cases where both parents are heterosexual, then applies these rules to the Delong facts.¹⁴³ Second, the opinion scrutinizes previous Court of Appeals decisions involving homosexual conduct and child custody and visitation as contrary to the best interests of the child standard by application of a per se rule.¹⁴⁴ Third, the opinion cites other jurisdictions that apply the nexus approach¹⁴⁵ and announces that a nexus approach is the proper standard to which Missouri courts should adhere when deciding all cases involving child custody and visitation, regardless of labels applied to the parents' sexual conduct.¹⁴⁶ The court concludes that the trial court misapplied the law when it awarded sole custody to the father and restricted visitation to the lesbian mother, and remanded the case to the trial court for review under the nexus standard.¹⁴⁷

The court's opinion begins with a footnote that provides what should be the guiding language of any court deciding custody issues:

Although both parties and Amicus refer to "sexual orientation" and describe Mother as "lesbian" and "homosexual," this court avoids such labels, aware that such labels have been applied in prior opinions in this state and others and that various individuals and groups, in furtherance of their causes, apply such labels not only to people who engage in sexual conduct with a person or persons of their own gender but also to other persons because of their perceived attitude about sexual relations absent actual sexual conduct. Instead, the court considers the evidence of record regarding the conduct of the parties in this case, including Mother's. Whether a person is "homosexual" or a "lesbian," or whether one's "sexual orientation" is or can be determined absent sexual activity with a member or members of the same gender need not be determined here, and such effort is beyond the scope of this case.¹⁴⁸

First, the Court of Appeals opinion acknowledges that the United States Supreme Court recognizes that the parent-child relationship involves "a fundamental liberty interest"¹⁴⁹ that is "as essential to the orderly pursuit of happiness by free men,"¹⁵⁰ and that the parent-child relationship "undeniably warrants deference and, absent a powerful countervailing interest, protection."¹⁵¹ The Court of Appeals also notes that state courts recognize the parent-child relationship as "sacred"¹⁵² and "rooted not in state or federal statutory or constitutional law . . . but in nature and human instinct."¹⁵³

The opinion goes on to reiterate the standards Missouri courts have set that are intended to preserve the parent-child relationship and, at the same time, serve the best interests of children.¹⁵⁴ The court states that factors listed in § 452.375.2, RSMo, are to be considered in child custody determinations, but that the factors are not exclusive and should be considered with all other relevant factors.¹⁵⁵ Additionally, the court recognizes that a "stable home" and "good environment" is "the single most important, relevant consideration in custody matters."¹⁵⁶ Moreover, the court acknowledges that a parent's morality is a proper consideration for courts in child custody cases,¹⁵⁷ but that the court's duty is not to condemn or approve of a particular moral standard, but should only consider "whether the conduct in question is detrimental to the child's welfare."¹⁵⁸ In fact, the court states, a parent's behavior is not even relevant to a child custody case unless it is shown that the behavior affects the child's welfare.¹⁵⁹ The court does recognize, however, that evidence that a parent's conduct may, in the future, have a detrimental impact on the child may be relevant to custody determinations.¹⁶⁰

The opinion then characterizes all previous Court of Appeals decisions involving homosexual parents' fitness as custodians as inconsistent with Missouri law as applied in all other custody and visitation decisions.¹⁶¹ In fact, the court states, "Missouri courts appear to apply a 'per se rule'" in cases involving a homosexual parent.¹⁶⁵ The court acknowledges that no reported decision in Missouri has ever awarded custody to a parent where that parent's homosexuality was an issue.¹⁶³ The court also noted that in all previous custody cases¹⁶⁴

Without assessing the fitness of the parent who engages in homosexual conduct, the possible unfitness of the parent who does not engage in homosexual conduct, the relationship between each parent and child, the effect of homosexual conduct on the child, or any other factor relevant to the child's welfare, Missouri courts presume that "placing primary custody of a minor child with the nonhomosexual parent is in the best interests of the child" . . . With little or no consideration of any other factors relevant to a child's best interests, including the fitness of the heterosexual parent to be custodian, Missouri courts seem to have consistently relied on a presumed detrimental impact of homosexuality on a child to sustain custody awards to the nonhomosexual parent."¹⁶⁵

After discussing the previous Missouri opinions,¹⁶⁶ the court rejects the standard applied in those opinions as "inherently inconsistent with the best interests of the child standard."¹⁶⁷ In fact, the court states: "[F]ocusing a custody determination on a parent's homosexual conduct, alone, may permit a decision contrary to the best interests of the child in a case where the characteristics of the heterosexual parent are undesirable or possibly harmful."¹⁶⁸

In its analysis, the appellate court expressly rejects the per se rule and adopts the nexus approach as the appropriate test to apply to cases involving homosexual parents.¹⁶⁹ The court reiterates that the nexus test is consistent with the best interests of the child standard, as it requires a showing that the parent's homosexual conduct has or may have an adverse effect on the well-being of the child:¹⁷⁰

The relevant issue under this approach is not the nature of the parent's sexual activity but whether that activity adversely affects the child . . . As required by the best interests of the child standard, a nexus approach mandates an individualized, fact-based assessment of all factors relevant to a child's welfare, including a parent's homosexual conduct if it is shown to impact the child.¹⁷¹

The Court of Appeals concluded that the trial court "misapplied the law" by circumventing the best interests of the child standard.¹⁷² The trial court in the Delong case, as recounted in the Court of Appeals opinion, focused on evidence relating to the nature of the mother's lesbian relationships.¹⁷³ However, the father presented no evidence that the mother's conduct had a detrimental impact on the children,¹⁷⁴ yet the trial court concluded that the mother was unfit as a custodian of her children, and that supervised visitation was necessary "to keep the negative influence of homosexuality away from the children."¹⁷⁵ The appeals court, in reversing the trial court's award to Mr. Delong, characterized the trial court's standards, as well as those of previous Missouri decisions regarding homosexual parents, as impermissible generalizations.¹⁷⁶ Moreover, the court stated that courts are not in the business of approving or disapproving parents' morality,¹⁷⁷ but rather are endowed with a duty to act in the best interests of the child by determining whether evidence presented, as a whole, has an adverse impact on the child.¹⁷⁸

The Supreme Court of Missouri Opinion

On April 21, 1998, Delong v. Delong was ordered transferred to the Supreme Court of Missouri,¹⁷⁹ which,¹⁸⁰ affirmed the judgment of the trial court, except with respect to the visitation provision.¹⁸¹ The Supreme Court limited its review of the trial court's decision to "plain error" because the Court deemed the mother's appellate brief to be technically deficient.¹⁸² As such, the Court found no plain error in the trial court's judgment as to the mother's first point relied on, namely that "[t]he trial court erred in awarding sole custody of the children to the father because the custody determination was not in the best interests of the children as required by Missouri law in that the evidence clearly showed mother was the better choice as custodian and mother should have been given at least joint custody rights."¹⁸³ The Court found that this point relied on failed to state what was before the trial court that supports the ruling the mother contended should have been made.¹⁸⁴ Further, the court found that the first point relied on was "so nebulous that it [was] impossible to identify which of several possible claims appellant [was] attempting to raise."¹⁸⁵ Thus, the Court failed to address the merits of the mother's first point relied on in finding that no "manifest injustice or miscarriage of justice has resulted" from the trial court's ruling.¹⁸⁶

The mother's second point was:

The trial court erred in denying mother custodial rights, conditioning and restricting her visitation, and mandating mother inform her children she was homosexual because the state cannot discriminate against a parent and violate a parent's constitutional rights on the basis of homosexuality in that the court's denial of custody and its ruling was made without justification solely on the basis of mother's sexual orientation."¹⁸⁷

The Court criticizes the mother's second point relied on for failing to state what was before the trial court that supports the ruling the mother contends should have been made, and for failing to set out the specific constitutional rights that she alleged to be violated.¹⁸⁸ As to the second point, however, the Court engaged in a brief analysis of the law relating to custody.¹⁸⁹

First, the Court rejects the mother's contention that she was denied custody of her children based solely on the fact that she was a lesbian. The Court refers to the trial court's findings of fact as support for its position that the trial court relied on "a number of factors" in determining the best interests of the children:¹⁹⁰

The best interests of the minor children will be met by their custody being placed with [the father] because: (a) [the father's] greater stability; (b) [the mother's] negativism toward [the father] and its negative impact on the children; (c) [the mother's] immaturity in seeking after repeated new love relationships and enmeshing her children's lives in her lovers' lives; (d) [the father's] nearby close extended family; and (e) [the father's] greater likelihood of promoting a good relationship between the children and the other parent.'"¹⁹¹

The Court made no reference to how any of the mother's alleged behavior had an adverse impact on the children. However, the Court states, "A homosexual parent is not ipso facto unfit for custody of his or her child, and no reported Missouri case has held otherwise."¹⁹² Relying on one of the Court of Appeals cases applying, at best, a presumptive determinative approach, the opinion further states that "[i]t is not error, however, to consider the impact of homosexual or heterosexual misconduct upon the children."¹⁹³ Then the Court affirmed the trial court's grant of sole custody to the father.¹⁹⁴

As to the limitations imposed on the mother's visitation, however, the Court appears to advocate a nexus approach, at least as to the individuals who may be in the children's presence during visitation.¹⁹⁵ The trial court prohibited the mother from allowing the children to be in the presence of "any person known by [the mother] to be lesbian or known by [the mother] to be one who engages in lesbian sexual activity" except for a person described in the order as "a long time friend of the children."¹⁹⁶ Further, the trial court forbade "the children to be in the presence, during visitation periods, of 'any other female, unrelated by blood or marriage, with whom [the mother] may be living.'"¹⁹⁷ The Court reversed the trial court's judgment as to these two restrictions, and directed the trial court "to limit the conditions to apply only to those individuals whose presence and conduct may be contrary to the best interests of the children."¹⁹⁸

VI. Conclusion

It remains to be seen what impact the Supreme Court of Missouri's Delong decision will have on child custody determinations that involve a homosexual parent. On one hand, the decision seems to indicate that a nexus approach is appropriate in determining visitation restrictions imposed on a homosexual parent.¹⁹⁹ On the other hand, the Court's denial that a per se rule has ever been applied by Missouri courts indicates a superficial analysis of the precedent that speaks to this subject. Even if one were to conclude that this Court flatly rejected the per se rule, the factors pointed to by the Court as justification for the custody determination are vague and fail to speak to the best interests of the children. At best, the Court appears to recognize the presumption of harm approach as the standard that should be applied in custody determinations. Either approach, however, results in denial of custody to homosexual parents based on unfounded stereotypes.

The Delong decision, at the Supreme Court level, circumvented the best interests of the child standard, like most of the appellate decisions before it. The Court of Appeals opinion, however, reflects a more appropriate standard in its application of the nexus approach. The nexus approach is the standard applied by a majority of jurisdictions and is the same standard applied by courts in Missouri that are faced with factors other than homosexuality in custody determinations. The nexus standard adheres to the single standard by which all custody determinations are to be made -- the best interests of the child -- and is the standard that should be applied by Missouri courts in custody, visitation and modification proceedings, regardless of the labels used to describe a parent's intimate relationships with other adults.

Endnotes

1 Kathryn Kendell, The Custody Challenge: Debunking Myths About Lesbian and Gay Parents and Their Children, Family Advocate, Summer 1997, p. 21.

2 The author uses the term homosexual in general reference to sexual and/or romantic relationships between persons of the same gender. The author recognizes that many individuals prefer the terms gay, lesbian, bisexual or no label at all, and does not, by the use of the word homosexual suggest that any one term is more accurate or appropriate for use in a legal discussion relating to the present subject matter. For a progressive statement about the use of such labels in the legal or political context, see Delong v. Delong, No. WD 52726 (Mo. App. W.D. Jan. 20, 1998).

3 Kendell, note 1, p. 21.

4 David S. Dooley, Immoral Because They're Bad, Bad Because They're Wrong: Sexual Orientation and Presumptions of Parental Unfitness in Custody Disputes, 26 Cal. W. L. Rev. 395 (1990).

5 No. WD 52726 (Mo. App. W.D. Jan. 20, 1998), superseded by J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. banc 1998).

6 Odeana R. Neal, Writing Rules Does Not Right Wrongs, 7 Temp. Pol. & Civ. Rts. L. Rev. 303, 304 (Spring 1998), citing S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); In re Marriage of Birdsall, 243 Cal. Rptr. 287 (Cal. Ct. App. 1988); In re the Marriage of: R.S., 677 N.E.2d 1297 (Ill. App. Ct. 1996); Doe v. Doe, 452 N.E.2d 293 (Mass. App. Ct. 1983); White v. Thompson, 569 So.2d 1181 (Miss. 1990); Hassenstab v. Hassenstab, 570 N.W.2d 368 (Neb. Ct. App. 1997); M.P. v. S.P., 404 A.2d 1256 (N.J. Super. Ct. App. Div. 1979); Fox v. Fox, 904 P.2d 66 (Okla. 1995); A. v. A., 514 P.2d 358 (Or. Ct. App. 1973); Blew v. Verta, 617 A.2d 31 (Pa. Super. Ct. 1992); Stroman v. Williams, 353 S.E.2d 704 (S.C. Ct. App. 1987); Van Driel v. Van Driel, 525 N.W.2d 37 (S.D. 1994); Tucker v. Tucker, 910 P.2d 1209 (Utah 1996); Nickerson v. Nickerson, 605 A.2d 1331 (Vt. 1992); Schuster v. Schuster, 585 P.2d 130 (Wash. 1978); M.S.P. v. P.E.P., 358 S.E.2d 442 (W. Va. 1987). In addition, the District of Columbia has a statute that mandates that custody shall be determined without reference to sexual identity. See Kendell, note 1, at 24 (citing D.C. Code §§ 16-922(a)(5) (1990 Repl.).

7 Neal, note 1, at 304.

8 Juliet A. Cox, Comment, Judicial Enforcement of Moral Imperatives: Is the Best Interest of the Child Being Sacrificed to Maintain Societal Homogeneity?, 59 Mo. L. Rev. 775, 780 (1994).

9 Id. at 794.

10 Katja M. Eichinger-Swainston, Note, Redefining the Best Interest of the Child Standard for Lesbian Mothers and Their Families, 32 Tulsa L.J. 57 (1996) . The presumption of harm approach is also referred to as the middle ground approach or the permissive determinative inference approach; see also Vicki Parrott, The Effect on the Child of a Custodial Parent's Involvement in an Intimate Same-Sex Relationship: North Carolina Adopts The "Nexus Test" In Pulliam v. Smith, 19 Campbell L. Rev. 131, 146-47 (Fall 1996).

11 See generally Kendell, note 1; see also Eichinger-Swainston, Note 10; David S. Dooley, Immoral Because They're Bad, Bad Because They're Wrong: Sexual Orientation and Presumptions of Parental Unfitness in Custody Disputes, 26 Cal. W. L. Rev. 395, 413-423 (1990).

12 See Kendell, note 1 at 22, citing Susan Golombok et al., Children In Lesbian And Single-Parent Households: Psychosexual & Psychiatric Appraisal, 24 Journal Of Child Psychology & Psychiatry 551 (1993)("No significant differences on gender role measures between children of lesbian mothers and control group children"); Richard Green, Sexual Identity Of 37 Children Raised by Homosexual or Transsexual Parents, 135 American Journal Of Psychiatry 692-697 (1978) ("No significant difference in gender role identity"); Beverly Hoeffer, Children's Acquisition Of Sex-Role Behavior in Lesbian-Mother Families, 51 American Journal of Orthopsychiatry 545 (1981)("No significant difference in gender role identity"); Laura Lott-Whitehead and Carol T. Tully, The Family Lives of Lesbian Mothers, 63 Smith C. Studies in Social Work 265 (1993)("No negative effect on self-esteem and social adjustment"); Ann O'Connell, Voices from the Heart: The Developmental Impact of a Mother's Lesbianism on Her Adolescent Children, 63 Smith C. Studies In Social Work 281 (1993)("No correlation between parents' sexual identity and sexual identity of child").

13 The author discusses the Missouri cases on this subject in depth.

14 James Trosino, Note, American Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U. L. Rev. 93 (1993).

15 388 U.S. 1 (1967).

16 466 U.S. 429 (1984).

17 Id. at 433.

18 Eichinger-Swainston, note 10, at 58.

19 The author speaks in term of custody, but the best interests standard applies to visitation and custody modification considerations as well. The cases cited herein are not distinguished based on initial custody determinations, visitation or modifications because the differing standards of review applied to these proceedings are beyond the scope of this paper.

20 C.J.(S.)R. v. G.D.S., 701 S.W.2d 165, 169 (Mo. App. S.D. 1985); Rodgers v. Rodgers, 505 S.W.2d 138, 144 (Mo. App. E.D. 1974).

21 Section 452.375.2, RSMo Supp. 1998; In re Marriage of Hayden, 588 S.W.2d 165, 167 (Mo. App. E.D. 1979).

22 Section 452.375.2, RSMo Supp. 1998.

23 V.M. v. L.M., 526 S.W.2d 947, 949 (Mo. App. E.D. 1975).

24 Missouri Family Law, 4th Edition, Vol. 1, Chapter 13 (1988) (1995 Supplement).

25 T.C.H. v. K.M.H., 693 S.W.2d 802, 805 (Mo. banc 1985).

26 Humphrey v. Humphrey, 888 S.W.2d 342, 346 (Mo. App. E.D. 1994); Boschert v. Boschert, 793 S.W.2d 495, 497 (Mo. App. E.D. 1990); V.M. v. L.M., 526 S.W.2d at 950.

27 Fastnacht v. Fastnacht, 616 S.W.2d 98, 100-101 (Mo. App. W.D. 1981) ("No absolute rule determines which of contending parents in a dissolution case is entitled to custody of the children, but each case must be decided on its own facts."); Robertson v. Robertson, 630 S.W.2d 266, 266 (Mo. App. W.D. 1982) ("Sexual misconduct does not ipso facto dictate the award of custody one way or the other. The factual issue for the trial court is the effect of the misconduct on the child which is an inference to be drawn from the whole record in most instances.") (citations omitted).

28 Immoral is a general term used by courts, and is used by the author in an amoral sense and is not intended to suggest approval or disapproval of the conduct to which the author refers.

29 Humphrey, 888 S.W.2d 342, 346; Boschert, 793 S.W.2d 495, 497; Wilhelmsen v. Peck, 743 S.W.2d 88, 93 (Mo. App. S.D. 1987); Kean v. Kean, 754 S.W.2d 922, 923 (Mo. App. S.D. 1988); Shoemaker v. Shoemaker, 812 S.W.2d 250, 255 (Mo. App. W.D. 1991).

30 Humphrey, 888 S.W.2d 342, 346; Shoemaker v. Shoemaker, 812 S.W.2d 250 (Mo. App. W.D. 1991); Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo. App. W.D. 1981); V.M. v. L.M., 526 S.W.2d 947, 949.

31 Humphrey, 888 S.W.2d 342.

32 Humphrey, 888 S.W.2d 342, 346.

33 Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. App. E.D. 1979).

34 Id. at 408.

35 Id. at 408.

36 Kean v. Kean, 754 S.W.2d 922, 923 (Mo. App. S.D. 1988).

37 Id. at 923, citing Cantrell v. Adams, 714 S.W.2d 211, 214 (Mo. App. W.D. 1986).

38 Wilhelmsen v. Peck, 743 S.W.2d 88, 90 and 94 (Mo. App. S.D. 1987).

39 Id. at 94.

40 Id. at 94.

41 Id. at 93.

42 Id.

43 Shoemaker v. Shoemaker, 812 S.W.2d 250, 255 (Mo. App. W.D. 1991).

44 Id.

45 Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo. App. W.D. 1981).

46 Morrison v. Morrison, 676 S.W.2d 279, 279 (Mo. App. W.D. 1984).

47 Indermuehle v. Babbitt, 771 S.W.2d 873, 874 (Mo. App. E.D. 1989).

48 Id. At 874. The court stated in its opinion that the father's living arrangement with his girlfriend was "not to be condoned."

49 Id.

50 D.K.L. v. L.C.L., 764 S.W.2d 664 (Mo. App. E.D. 1988); V.M. v. L.M., 526 S.W.2d 947 (Mo. App. E.D. 1975); McDowell v. McDowell, 670 S.W.2d 518 (Mo. App. E.D. 1984); Brotherton v. Lowe, 819 S.W.2d 74 (Mo. App. S.D. 1991).

51 D.K.L. v. L.C.L., 764 S.W.2d 664.

52 Id. at 666.

53 Id. at 665.

54 Id. at 667.

55 Brotherton v. Lowe, 819 S.W.2d 74, 77 (Mo. App. S.D. 1991).

56 Id. at 77.

57 Id.

58 Id.

59 V.M. v. L.M., 526 S.W.2d 947, 949 (Mo. App. S.D. 1975). The father allowed his 15-year-old son to live alone in a rental house away from the father's home. The court stated, "The award of [the son] to his father who permits him to live by himself appears to be no award of custody at all."

60 Id. at 949. The author notes that the moral fitness of the mother was not questioned by the court.

61 Id.

62 Id.

63 Id.

64 Wilmesherr v. Wilmesherr, 708 S.W.2d 823, 824 (Mo. App. E.D. 1986).

65 Id.

66 Id.

67 Id. The author does not suggest that homemaker status of a step-parent is necessarily a factor to be weighed over the full-time employment of the natural mother, but merely points out that the court looks to a variety of factors in custody determinations involving heterosexual parents.

68 Id.

69 N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo. App. W.D. 1980).

70 Id. at 184 and 186, fn.1.

71 Id. at 186.

72 Id. at 186.

73 Id.

74 L. v. D., 630 S.W.2d 240, 244-245 (Mo. App. S.D. 1982). "Two 17-year-olds approached the two younger children and asked them if they were sterile."

75 Id. at 242.

76 Id. at 244.

77 Id. at 244.

78 Id. at 244.

79 Id. at 242.

80 Id.

81 Id. at 242.

82 Id.

83 Id. at 244.

84 Id. at 245.

85 J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 866 (Mo. App. W.D. 1982).

86 Id. at 866.

87 Id. at 867.

88 Id. at 868-869.

89 Id. at 869.

90 Id. at 866, 868-869. However, it is unclear from the opinion whether the father actually volunteered the information or whether the father was simply responding to a question from opposing counsel.

91 Id. at 867-868.

92 Id. Sexual preference is formed by the age of four or five and cannot be subsequently influenced by environment.

93 Id. at 868-869.

94 Id.

95 S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. App. E.D. 1987).

96 Id. at 166.

97 Id.

98 Id. at 167.

99 Id. at 165.

100 Id. at 166.

101 Id. At 166, fn. 1.Mother and the American Civil Liberties Union, as amicus curiae, cite Herrington, Children of Lesbians, Developmentally Typical, Psychiatric News, Oct. 19, 1979, at 23, and R. Green, The Best Interests of the Child With a Lesbian Mother, Bulletin of AA PL, Volume 10, No. 1, 1982, at 7-15.

102 Id. at 166.

103 Id.

104 Id.

105 G.A. v. D.A., 745 S.W.2d 726 (Mo. App. W.D. 1987).

106 Id. at 728.

107 Id. at 729.

108 Id. at 728-729 (dissent) ("[T]here would appear to be a judicial policy in this state to conclusively presume the detrimental impact on a child from the parent's homosexuality.") (citing N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo. App. W.D. 1980), L. v. D., 630 S.W.2d 240 (Mo. App. S.D. 1982), J.L.P.(H.) V. D.J.P., 643 S.W.2d 865 (Mo. App. W.D. 1982), and S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. App. E.D. 1987).

109 Id. at 728 (dissent).

110 S.L.H. v. D.B.H., 745 S.W.2d 848 (Mo. App. E.D. 1988).

111 Id. at 849 ("We agree that placing primary custody of a minor child with the nonhomosexual parent is in the best interests of the child.")(citing S.E.G. v. R.A.G., 735 S.W.2d at 166).

112 Id. at 849.

113 Id.

114 L.H.Y. v. J.M.Y., 535 S.W.2d 304, 308 (Mo. App. E.D. 1976) ("No matter how [she] or society views the private morality of the situation, we cannot ignore the influence her conduct may well have upon the future of this child and cannot give our judicial cachet to such conduct by etching in the law-books for all to read and follow."); N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo. App. W.D. 1980); L. v. D., 630 S.W.2d 240, 244-245 (Mo. App. S.D. 1982) (citing N.K.M. at 186).

115 J.P. v. P.W., 772 S.W.2d 786 (Mo. App. S.D. 1989).

116 Id. at 788.

117 Id.

118 Id.

119 Id. at 788 and 789.

120 Id. at 789.

121 Id. at 788.

122 Id. at 788 and 793 ("[S]exual abuse need not be established by direct evidence."); but see Id. at 794 and 795 ("There was no evidence that the father had ever physically harmed his daughter or allowed it to happen.") (The clinging behavior "does not indicate that anything improper occurred to [the child] or that she should not continue to see [the father]."(dissent).

123 Id. at 794 (dissent).

124 Id. at 795 (dissent).

125 Id. at 792 (citing Roberts v. Roberts, 489 N.E.2d 1067, 1070 (Ohio Ct. App. 1985)). It should be noted that two years after the Roberts decision, an Ohio appeals court issued an opinion requiring that a nexus be shown between a parent's homosexual behavior and an adverse effect on the child in order to use homosexuality as a basis for denying custody to a gay parent. Conkel v. Conkel, 509 N.E.2d 983 (Ohio Ct. App. 1987). The Conkel court read the Roberts opinion as narrowly limited to a situation where evidence of harm to the child was not rebutted by the gay parent. In fact, the Conkel court noted that the Roberts court, in remanding, "directed the trial court to grant visitation if the adverse effects on the children could be eliminated."

126 Id. at 795 (dissent).

127 Id.

128 Id. ("It is important for the child to know her father and receive the guidance, love, and companionship which the record indicates he was willing to provide.")

129 T.C.H. v. K.M.H., 784 S.W.2d 281, 284 (Mo. App. E.D. 1989); J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. banc 1998).

130 784 S.W.2d 281.

131 Id. at 284 (quoting S.E.G. v. R.A.G., 735 S.W.2d 164, 166 (Mo. App. E.D. 1987).

132 735 S.W.2d 164, 166 (court's citation)(emphasis added).

133 T.C.H., 784 S.W.2d 281, 283. Despite the mother's denials that she was a lesbian, the court found that the evidence showed otherwise. In fact, the mother's denial of homosexuality was a factor in the court's decision to deny custody to her. The court viewed her denials as a "series of lies" made for the purpose of keeping her children. Id..

134 Id. at 284.

135 Id.

136 Id. at 285. The court gave this testimony "little weight since (1) none of them believed mother to be a lesbian; and (2) they said their testimony would not be altered even if they believed she was a lesbian

137 No. WD 52726 (Mo. App. W.D. Jan. 20, 1998), superseded by J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. banc 1998).

138 No. WD 52726 (Mo. App. W.D. Jan. 20, 1998).

139 Id.

140 J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. banc 1998).

141 Delong, No. WD 52726 (Mo.App. W.D. Jan. 20, 1998).

142 Id.

143 Id.

144 Id.

145 Id.

146 Id. at 11-12.

147 Id.

148 Id.

149 Id. (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982) and Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

150 Id. (quoting Meyer, 262 U.S. 390, 399).

151 Id. (citing Lassiter v. Dept. Of Soc. Serv., 452 U.S. 18, 27 (1981)(quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972))).

152 Id. (citing Jonathan H. v. Margaret H., 771 S.W.2d 111, 114 (Mo.App. W.D. 1989)).

153 Id. (citing In re J.P., 648 P.2d 1364, 1373 (Utah 1982)).

154 Id.

155 Id.

156 Id. (citing D.K.L., 764 S.W.2d 664, 666-67 and M. v. M., 688 S.W.2d 384, 386 (Mo.App. _.D. 1985)).

157 Id. (citing Brotherton, 819 S.W.2d 74, 77).

158 Id. (citing Fastnacht, 616 S.W.2d 98, 100).

159 Id. (citing Shoemaker, 812 S.W.2d 250, 255).

160 Id. at 6 (citing Fastnacht, 616 S.W.2d 98, 100 and D.K.L., 764 S.W.2d 664, 667).

161 Id.

162 Id.

163 Id.

164 Id.

165 Id.

166 Id. (citing T.C.H. v. K.M.H., 784 S.W.2d 281 (Mo. App. E.D. 1989); S.L.H. v. D.B.H., 745 S.W.2d 848 (Mo. App. E.D. 1988); S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo. App. E.D. 1987); G.A. v. D.A., 745 S.W.2d 726 (Mo. App. W.D. 1987); N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo. App. W.D. 1980); J.P. v. P.W., 772 S.W.2d 786 (Mo. App. S.D. 1989); L. v. D., 630 S.W.2d 240 (Mo. App. S.D. 1982); J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo. App. W.D. 1982)).

167 Id.

168 Id.

169 Id. ("Accordingly, a nexus approach is adopted in custody cases involving the issue of a parent's sexual conduct.")

170 Id.

171 Id.

172 Id.

173 Id.

174 Id.

175 Id.

176 Id. (citing S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985)).

177 Id. ("The State may not deprive parents of custody of their children 'simply because their households fail to meet the ideals approved by the community . . . [or] simply because the parents embrace idealogies or pursue life-styles at odds with the average.'") (citations omitted).

178 Id.

179 The cause was transferred pursuant to Mo.Const. Art. V § 10 (amended February, 1997), which reads:

Cases pending in the court of appeals shall be transferred to the supreme court when any participating judge dissents from the majority opinion and certifies that he deems said opinion to be contrary to any previous decision of the supreme court or of the court of appeals, or any district of the court of appeals. Cases pending in the court of appeals may be transferred to the supreme court by order of the majority of the judges of the participating district of the court of appeals, after opinion, or by order of the supreme court before or after opinion because of the general interest or importance of a question involved in the case, or for the purpose of reexamining the existing law, or pursuant to supreme court rule. The supreme court may finally determine all causes coming to it from the court of appeals, whether by certification, transfer or certiorari, the same as on original appeal.

180 The cause was transferred to the Supreme Court en banc pursuant to Mo.Const. Art. V § 9 (1997), which reads:

A cause in the supreme court shall be transferred to the court en banc when the members of a division are equally divided in opinion, or when the division shall so order, or on application of the losing party when a member of the division dissents from the opinion therein, or pursuant to supreme court rule.

181 J.A.D. v. F.J.D., 978 S.W.2d 336 (Mo. banc 1998).

182 Id. (citing Wilkerson v. Prelutsky, 943 S.W.2d 643 (Mo. banc 1997)).

183 Id.

184 Id.

185 Id.

186 Id. (citing Mo.S.Ct. Rule 84.13(c)).

187 Id.

188 Id.

189 Id.

190 Id.

191 Id.

192 Id. This statement by the Court is confusing in light of the cases treated, and at best suggests that the presumptive determinative approach, rather than the per se rule, has been applied by Missouri courts. In any event, the Court appears to sanction denial of custody to homosexual parents without regard to whether the parent's behavior has an adverse effect on the child.

193 Id. (citing T.C.H. v. K.M.H. at 804-805).

194 Id. ("Substantial evidence in the record supports the custody determination . . ."); Note that, although the children did not testify at trial, both of the older children have written letters to the Supreme Court of Missouri, expressing their desire to live with their mother. Both children say that they miss their mom and that their dad often leaves them with babysitters. The oldest child, age 12, stated in one letter, "It's like the judge is punishing us because he does not like our mom . . . Our mom is the greatest person . . . I will fight to live with my mom until you let me . . . I think this prejudice in the world needs to stop. God loves everyone the same." Virginia Young, Case Could Set State Standard For Gays Seeking Custody: Lesbian Takes Fight To Missouri Supreme Court; Battle Draws National Attention, St. Louis Post-Dispatch, September 6, 1998.

195 Id.

196 Id.

197 Id. ("Particularly, the latter restriction would apply to any woman whose presence or conduct might not be harmful to the children.")

198 Id.

199 Id.

Ms. Brunner received her J.D. in 1999 from the University of Missouri at Kansas City. She will join the Kansas City law firm, Richard T. Bryant & Associates, as an associate in the fall of 1999.

© 1999, Lisa A. Brunner