ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, March 24, 1996 TAG: 9603250081
SECTION: VIRGINIA PAGE: B-6 EDITION: METRO
SOURCE: MARIE McCULLOUGH KNIGHT-RIDDER/TRIBUNE
Although she acknowledged that she is a lesbian, Sharon Bottoms figured she had a good chance last month of regaining custody of her son, Tyler Doustou. After all, her three-year battle in Virginia had prompted the state's highest court to declare that homosexual parents are not intrinsically unfit.
New scientific research had bolstered that premise.
And two court-appointed experts - a psychologist and a lawyer who represented 4-year-old Tyler - recommended that the child be returned to Bottoms.
But Bottoms figured wrong.
Henrico County juvenile court Judge William Boice - who first ruled against her when her bitter battle began - did so again on Feb. 27. This time, however, he downplayed her homosexuality and implied that she was capitalizing on her case. He denounced her for signing a TV movie deal, even though she said that the movie would be made whether or not she cooperated and that the money could benefit Tyler.
``I am less concerned with her lesbianism than Tyler being made a poster boy for a cause he could not and did not enlist,'' Boice said, explaining his ruling.
Gay-rights advocates, social scientists and civil-rights lawyers say Bottoms' case illustrates the judicial biases that continue to thwart homosexual parents in custody cases, despite ample research debunking fears and stereotypes about them.
``This is a blatant example of judicial homophobia,'' said Kent Willis, director of the American Civil Liberties Union of Virginia, which represented Sharon Bottoms.
The case is an unusually sensational one, given that it has ripped not one but two maternal bonds: Bottoms, 26, is fighting her own mother, Pamela Kay Bottoms, 45, for custody of Tyler.
But the underlying prejudices are not unique.
``We see decisions like this recent Bottoms decision virtually every day,'' said Kathryn Kendell, legal director of the National Center for Lesbian Rights in San Francisco.
In Florida, for example, a Circuit Court judge last fall transferred custody of an 11-year-old girl who had lived from birth with her lesbian mother, Mary Ward. Custody was awarded to the father, John Ward, despite his conviction for murdering his first wife and allegations that he had molested his teen-age daughter from that first marriage.
The father, whose contact with his 11-year-old daughter had been irregular, sought custody after the mother asked for an increase in child-support payments.
In ruling, the judge said he feared that the mother would try to ``lead'' her daughter into a lesbian lifestyle ``before she has a full opportunity to know that she can live another lifestyle if she wants to.''
In another Florida Circuit Court case, a judge last fall ordered that a child live with her father, John Maradie, rather than her lesbian mother, Valerie Maradie, because ``a homosexual environment is not a traditional home environment and can adversely affect a child.''
Research findings consistently refute such conclusions. In a `friend of the court'' brief in support of Sharon Bottoms, the American Academy of Child and Adolescent Psychiatry, the American Psychological Association and the National Association of Social Workers cited numerous studies, many published in the last three years.
``There is no evidence that a parent's sexual orientation influences the sexual identity of a child,'' the brief said. ``There is no evidence that children develop their sexual orientation by emulating their parents. ... The research does not indicate that lesbians and gay men are likely to have traits that would diminish their effectiveness as parents.''
But the research holds no sway with those who reject the findings.
Robert Knight, director of cultural studies at the Family Research Council, a conservative think tank in Washington, said Boice made the right decision.
``I think children of homosexuals are more likely to experiment with homosexuality,'' Knight said, ``and I think that's a dangerous thing because homosexuality is itself an unhealthy activity.''
Knight contends that homosexual parenting studies are ``scant, highly politicized and conducted largely by lesbian researchers.''
David Flaks, a lawyer and psychologist who coauthored a 1994 Widener University study of lesbian and heterosexual parents, said, ``All they can do is say the studies are flawed or the researchers are flawed ... because there's not one study that supports their position.''
Ironically, only one state, Missouri, has upheld a ``per se rule'' - the presumption that parental homosexuality is intrinsically harmful and justifies removal of a child, regardless of other circumstances.
Most state appellate courts have gone the other way, explicitly declaring that a parent's sexual orientation is irrelevant in a custody case unless it can be shown to have harmed the child.
That's what the Virginia Court of Appeals declared in June 1994, when it reversed two lower courts and awarded custody to Sharon Bottoms.
And that's what the Virginia Supreme Court said when Kay Bottoms appealed the reversal.
So why is Tyler still with his grandmother?
Because in Virginia, oral sex is still a felony, and Sharon Bottoms admitted that she and her partner had engaged in oral sex out of Tyler's presence.
``That conduct is another important consideration in determining custody,'' the Virginia Supreme Court said in giving custody to Kay Bottoms.
Civil rights advocates found that ruling, as well as another by the Supreme Court of Wyoming in December, to be inconsistent.
Wyoming's highest court faulted a lower court for concluding that ``homosexuality is inherently inconsistent with families'' and called this a ``fundamental flaw'' in the lower court's analysis.
Still, the Wyoming Supreme Court affirmed the lower court's decision to restrict the lesbian mother's visitation rights.
Homosexuals will continue to be victims of judicial bias in custody cases until the final arbiter, the U.S. Supreme Court, addresses the question, advocates say. For that to happen, a constitutionally protected right such as privacy or due process must be at issue.
Sharon Bottoms' lawyers believe that they would have had a test case if the Virginia Supreme Court had said homosexuals are inherently unfit parents.
``It certainly would have given us a good argument to plead in front of the United States Supreme Court - that the per se rule is a denial of the constitutional guarantee of equal protection under the law,'' said StephenPershing of the ACLU of Virginia. ``I think the Virginia Supreme Court saw that coming.''
Meanwhile, Bottoms, a receiving clerk at a Kmart, is considering giving up her fight, convinced she can't win, Pershing said.
She was devastated that Judge Boice, who was ruling in the case again after the state Supreme Court sent it back to him for reconsideration of some issues, rejected the advice of Torrence Harmon, the court-appointed advocate for Tyler.
Harmon, who conducted extensive interviews and home visits, testified that Sharon Bottoms had matured and taken steps to establish a stable home situation while Kay Bottoms had proven to be indulgent and inattentive to Tyler.
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