Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, April 26, 1995 TAG: 9504260058
SECTION: EDITORIAL PAGE: A-8 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Courts always say that, of course, but they generally presume that staying with parents is in a child's best interest. The burden falls on the state to prove otherwise.
Unfortunately, the perception in this case was filtered through the distorting lens of prejudice. Dissenters in the 4-3 decision rightly accused the majority of "applying a per se rule of parental unfitness based on the mother's homosexual conduct" - in other words, of finding that a lesbian automatically is unfit as a mother.
Oh, the majority states that homosexuality by itself is not grounds for taking children from their parents. But the court goes on to express concern that "living daily under conditions stemming from active lesbianism" could cause the child to experience "social condemnation." It suggests "such a result is likely," without citing evidence to support the assertion.
At the same time, the majority makes no comment on the results of studies indicating that children raised in gay or lesbian homes do not suffer demonstrably as a result, and are no more likely to become homosexual.
The justices do cite a litany of episodes that indicated to them that Sharon Bottoms is an unfit mother, her sexual orientation aside. The worst of this evidence was her admission that she once hit her son, Tyler Doustou, hard enough to leave a mark. But the undisputed testimony in the case was that Bottoms then sought counseling, and did not hit Tyler again. Would that every such episode in every household ended this way.
Sharon Bottoms did, indeed, admit to behavior that on occasion was immature and irresponsible. Like many mothers, she's not a perfect parent. It is important to remember, though, that her son's grandmother, not his other parent, sought to take the boy away from her. This isn't a case of weighing factors in deciding which parent to award custody to in a divorce settlement.
It isn't enough, in other words, to argue that the grandmother would be the better caregiver. (Never mind that she ended up with a lesbian daughter!) Society, through its court system, makes a presumption that parent and child should not be forcibly separated except in cases of extreme abuse or neglect. It is a principle held so closely that, to keep families intact, children have been left in situations far more questionable than the environment Sharon Bottoms provided for her son.
"Although the presumption favoring a parent over a nonparent is strong," the court notes, "it is rebutted when certain factors, such as parental unfitness, are established by clear and convincing evidence."
What clear and convincing evidence?
First, the majority observes that "conduct inherent in lesbianism is punishable as a Class 6 felony" - a reference to Virginia's anti-sodomy law. Excuse us, but by this standard, the state ought to be removing children from homes of heterosexual parents all over the commonwealth, based on what they've done in their bedrooms.
The other evidence of unfitness is that the child "uses vile language. He screams, holds his breath until he turns purple, and becomes emotionally upset when he must go to visit the mother. ... " Excuse us, but in other cases, this same court has ruled that a child could not be taken from a mother who married the man who had killed the boy's father (in front of him), or from a mother who was living with her prostitute sister (who was actively pursuing her profession). It would be unfair to assume the children would be harmed, the justices said.
Contrast that with the court's assumption of "social condemnation" in the Bottoms case, in which the state's own witnesses testified that Tyler was a normal boy growing up in a loving household when he was with his mother.
And the court claims its decision wasn't based on her lesbianism?
by CNB