The ABA Journal reports that the Tennessee Court of Appeals has, for a second time, removed a “paramour provision” that a trial judge inserted into a child custody agreement. The provision attempts to bar “the longtime lesbian partner of a child’s mother from living in her home while her 15-year-old daughter is there.” Neither party asked for the provision, but the judge apparently really, really didn’t like gay-folk — so he put it in the custody agreement himself. The Court of Appeals based its decision on a “best interests of the child” analysis:
After reviewing the record, we find that the trial court abused its discretion in requiring the paramour provision. The record is devoid of any evidence whatsoever to support the finding that a paramour provision is in the best interests of the children. In fact, the record contains evidence demonstrating that a paramour provision is contrary to the best interests of the children.
Barker v. Chandler, No. W2010-01151-COA-R3-CV (Tenn. Ct. App. June 29, 2010).
This would certainly seem to be the right decision, but I wonder if there are other arguments that could be made against these types of provisions. A “best interests of the child” analysis leaves open the possibility that such a provision could be sustained if a party can summon evidence (no matter how illusory) that the “paramour”‘s homosexuality is damaging to the children. I’m not sure that should ever be an open possibility.
The First Amendment, of course, protects a right of “intimate association”; I think that right should probably foreclose such provisions. A typical GLBT relationship (or any romantic relationship, for that matter) has the types of characteristics that the Supreme Court has observed mark an “intimate relationship”: “relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.” Roberts v. United States Jaycees, 468 U.S. 609, 620 (1984). When a relationship meets these threshold requirements, “the State may not interfere with the selection of individuals in such relationships.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 698 n.26 (2000). A paramour provision, especially when imposed sua sponte, is necessarily an improper limitation on the relationship, as it seeks to foreclose one of the core activities of a protected link: the overnight time of intimacy where two partners share decidedly personal moments. Put differently, paramour provisions necessarily limit the “selection of individuals” in the relationship between certain hours of the day. And even when the provision is not imposed sua sponte, the fact is that the Court places the imprimatur of the state on the custody agreement by approving it.
Of course, some might argue that the custody agreement does not actually destroy the right of partners to “associate,” it just says that the parent can’t have their child in the home while that overnight association is going on. But such an argument seems to ignore the obviously punitive effects of denying overnight custody. And it seems wrong to force the destruction of one intimate relationship (parent-child) just to preserve another (partner-partner).
I’m not a family lawyer, so there are likely some special considerations I’m overlooking. For instance, Lawrence v. Texas, 539 U.S. 558, 567 (2003), states that the Constitution “should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” Maybe “best interests of the child” is just trying to account for the possibility of such injury?
Nevertheless, a rough read of the First Amendment suggests paramour provisions should probably go.
-Michael
Isn’t there some case with this exact same situation, only the paramour was black?
The court there found something like, “Growing up in the household of an interracial couple may cause additional psychological trouble for the child, by making the child subject to teasing/discrimination. Nevertheless, this is not the sort of harm to a child that the court can award any weight in making its decision.” So the same could be applied to same-sex partners of parents.
Okay yeah, I shoulda just Googled it first, here it is: Palmore v. Sidoti. Granted, it was 14th Amendment, not 1st, but many of the same arguments could still be fitted into a freedom of association analysis.
On the other hand, I would not believe that the First Amendment would prevent a court from inserting a paramour provision that prevents a parent from living with a convicted child molester, while the kid is in the house. So while the “best interest of the child” standard is still the basic rule, constitutionally there is a somewhat-recognized exception that says, “best interest of the child, unless the threatened harm to the child is being subjected to others’ threatened bias or discrimination, or if the threatened harm is the child being exposed to moral/philosophical beliefs that one parent disagrees with.”