Judge: Custody Case Is Challenge Says ’50s Laws Outdated For Claim By Lesbian By Martha Shirk of the Post-Dispatch Staff
From — St. Louis Post-Dispatch
April 10, 1996
St. Louis Family Court Judge Thomas J. Frawley says Missouri’s domestic relations laws may not suggest a perfect remedy for one of the most unusual custody issues he’s been asked to resolve: whether to give custody of a 2 1/2-year-old boy to an unrelated lesbian who claims to have raised him from birth.
“In the world of the ’90s, the laws written in the ’50s just aren’t really applicable,” Frawley said. He said Missouri’s domestic relations laws were written “when everybody lived in a house with 2.2 kids and a picket fence and drove a station wagon with wood paneling on the side.”
At the conclusion of a two-day trial on the lesbian’s bid for custody, Frawley said he wanted more time to research court precedents before deciding who should raise the child, who carries the lesbian’s surname. He’s known in court records as T.L. to protect his privacy.
Frawley said he would try to do both “what’s right for the child” and what the law allowed him to do. “I pray they’re the same,” he said.
The case was brought by a 35 year-old warehouse worker known in court records as A.L. She claims that her former lover, a 26-year-old unemployed woman known in court records as Y.R., turned the child over to her when he was three days old and that he spent all but one night with her over the next two years.
Y.R. denies having been A.L.’s lover and claims that A.L. cared for the child only occasionally.
She says she never meant for A.L. to raise the child, but gave him A.L.’s surname because A.L. wanted her to and agreed to serve as his godmother.
The mother’s attorney, Allen Harris, sought to make A.L.’s lesbianism a reason to disqualify her as his custodian. He states that in “case after case”, Missouri courts had found that “the state has a substantial interest in viewing homosexuality as aberrant sexual behavior which threatens the social fabric.” But Frawley said A.L.’s sexual orientation was “a red herring.”
“This will shock some of you, but I don’t think it’s relevant,” Frawley said. “The issue is what rights if any does she have to this child.
Frawley said he wouldn’t hesitate to award custody to A.L. if he concluded that she was the child’s primary caretaker for his first two years of life. I’ve got the guts to do it if I find those are the facts,” he said. “At least I think I’ve got the guts to do it.”
Leigh Joy Carson, the child’s court-appointed guardian ad litem, urged Frawley to allow the child’s mother continuing contact with him but to give A.L. primary custody.
Carson said that she believed A.L. had functioned as the child’s primary caregiver until last June, when she’ returned him to his mother after being threatened with prosecution. They have “an extraordinary relationship,” she said. To end contact with A.L. would harm the child emotionally, she argued.
“We live in a changing society,” Carson said. “The traditional definitions of family are too limiting…. Do what’s right. Do what’s fair for this 2 1/2-year-old boy.”
In her closing argument, A.L.’s attorney, Adrienne L. Schaffer said A.L. wanted the child to have continuing contact with his mother and would agree to any visitation schedule ordered by the court. In addition, she said A.L. would comply with any restrictions Frawley placed on her sexual activity.
Schaffer noted that the child’s mother had testified that she believed A.L. was a “good role model for her child and cared for him in a loving manner.
Frawley said that however he ruled, he hoped the women would realize that the child could benefit from relationships with both of them.