Appeal from the Judgment in the Court of Common Pleas of Northampton County, Civil Division, No. 1980-C-3203.
Donald J. Martin, Norristown, for appellant.
Samuel A. Litzenberger, Quakertown, for appellee.
Cavanaugh, Beck and Tamilia, JJ. Beck, J., dissents.
[ 344 Pa. Super. Page 52]
This is an appeal from the denial of a mother's petition for expanded shared custody of her two children, Andrea and Darren; the mother is living in a fully acknowledged lesbian relationship. The lower court had before it a petition for involuntary termination of parental rights by the father and stepmother, which it denied. It is not an issue here. There was also a claim for visitation, by the maternal grandparents, determined in their favor; that portion of the judgment has not been appealed. The appeal before the court is solely on the issue of whether the lower court
[ 344 Pa. Super. Page 53]
abused its discretion in entering the partial custody order and refusing to expand the order as suggested by appellant. Among other things, the lower court considered the mother's homosexuality in reaching its decision. Contrary to the view of the appellant, which maintains that the homosexual relationship cannot be considered, we would hold that it is a relevant consideration in any custody determination. If appellant's view was to be adopted, and the issue of homosexuality excluded, the only substantive issue remaining would be that of the best interest of the children, as it related to the mother's parenting capacity.
In reaching the issue as to whether or not the mother's petition for expanded partial custody, in effect, shared custody, was properly denied, the trial judge of necessity must have considered whether or not there had been a substantial change of circumstance requiring or permitting a change in the prior Order of Court entered in 1980. The only apparent change of circumstance appearing on the record was the mother's belief that she had now resolved her homosexual identity problems and that since she had now had a stable eight-year relationship with Cathy S., it was now timely to bring it into the open and share it with her children. Appellant would have us find this was a sufficient basis for the court to enter the expanded custody order. We disagree. In a recent holding by this Court, Agati v. Agati, 342 Pa. Super. 132, 492 A.2d 427 (1985), we determined that any change in a partial custody order required a showing of changed circumstances and could not proceed initially as an inquiry as to the best interest of the child. As will be developed hereafter, appellant fails by either standard.
Our scope of review in matters relating to change of custody has recently been clarified by the Pennsylvania Supreme Court in Commonwealth v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), which states that we are bound by the findings of the trial judge which are reasonably supported by the evidence and all inferences taken therefrom. We do, however, have a broad scope of review, Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635
[ 344 Pa. Super. Page 54]
(1977), and Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Within these limitations, the appellate court may set aside the decree or judgment of the trial court only if it finds there has been an abuse of discretion. The appellant would overrule the trial court by setting aside the requirement of proof of changed circumstances and deal with the merits as related to the third and fourth findings of his decree in which the court states:
3. Notwithstanding the efforts of the so called "Gay Rights" movement, we conclude that the natural mother's lesbian relationship shows her moral deficiency; however, there is no proof that the mother's homosexuality constitutes a grave threat to the children.
4. Under such circumstances, we will consider the factor of the natural mother's lesbian relationship only to limit visitation*fn1 and not to completely deny it.
While the trial court made a gratuitous finding concerning the moral nature of the mother's relationship, his decision upon the facts was warranted by the evidence and fully supported by his findings, independent of the one concerning the mother's moral deficiency. The appellant took the moral pronouncement and ran to unwarranted conclusions concerning the court's findings and would have us reverse or alter an otherwise appropriate partial custody order.
A major issue posed is the privacy issue; it requires that we make an inquiry as to whether the law, as it has developed, applies equally to homosexual couples as compared to heterosexuals.*fn2
The marital right to privacy is guaranteed by the constitution. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct.
[ 344 Pa. Super. Page 551678]
, 14 L.Ed.2d 510 (1965); Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The personal intimacies of marriage, the home, procreation, motherhood, childbearing, and the family have been held "fundamental" by the Supreme Court and, hence, have been encompassed within the protected rights of privacy. Marital intimacies in the privacy of their bedroom are within the protected right of privacy, guaranteed by the right to privacy. Lovisi v. Slayton, 539 F.2d 349 (4th Cir., En Banc, 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976). This is not a protected right when others are admitted to observe or participate in their intimacies. Thus, although an activity (sodomy) is a crime, (Va.Code Anno. § 18.1-212, Crimes against nature (anal/oral intercourse between two persons or an animal)), it is protected by virtue of the privacy requirements of marriage. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) is inapposite because the same privacy right does not apply to unmarried couples engaged in criminal activity. Doe v. Commonwealth's Attorney for City of Richmond, 403 F.Supp. 1199 (E.D.Va. 1975), aff'd, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976) (upholding statute as applied to homosexual acts between two consenting adults in private places) (hereinafter, Doe v. Richmond).*fn3
Although the Pennsylvania Supreme Court has ruled that sexual intercourse between consenting adults of the same
[ 344 Pa. Super. Page 56]
sex is not punishable (even when done in public), Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), that ruling turned on the provision in the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 3124, prohibiting consensual deviate sexual intercourse. Section 3101, Definitions, defines "deviate sexual intercourse" as "Sexual intercourse per os or per anus between human beings who are not husband and wife, and any form of sexual intercourse with an animal." (emphasis added) For purposes of the Crimes Code chapter on sexual offenses, § 3103, Spouse relationships, extends the interpretation of spouse to include persons living as man and wife, regardless of the legal status of their relationship. The Supreme Court, in a plurality decision with three justices dissenting, and three justices concurring with, but not joining Justice Flaherty, held that the equal protection clause would not permit a statute to impose a penalty on single or nonspousal partners, when it excepts spousal partners from the penalty for identical activity. The extended discussion on morality and freedom by the majority received no concurrence by the other members of the court.
The United States Supreme Court, in Doe v. Richmond, supra, found no problem in prohibiting homosexual activity between consenting adults. Indeed, the case which gave the impetus to increased rights in and out of marriage, Griswold, supra, in the Concurring Opinion of Justice Goldberg joined by the Chief Justice and Justice Brennan, stated:
Finally, it should be said of the Court's holding today, that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman, supra, 367 U.S. at 553, 81 S.Ct. at 1782.
[ 344 Pa. Super. Page 57]
' Adultery, homosexuality and the like are sexual intimacies which the state forbids. . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but Page 57} which always and in every age it has fostered and protected.'
This discussion impinges on two aspects of the appellant's argument: first, that the trial court was in error in its consideration of the conduct of appellant and her live-in companion as morally deviant behavior; secondly, it affects the freedom which the appellant has requested, that is, to have unrestricted access to the children in her home and to travel to any state or Canada.
As to the first, without agreeing with the trial judge in his finding on morality, we would acknowledge there is considerable opinion, belief and law in this country, which cannot be ignored, and which supports such a conclusion. Indeed, in most of the cases cited by the appellant and referred to below, regarding heterosexual meretricious relations, the court stated that the state does not condone such behavior. Homosexual relations cannot be considered to have a higher standing. Even if not criminalized, the only basis for not condoning the behavior is the moral basis. Secondly, permitting the appellant the freedom to travel could clearly place the children in a situation with the mother and Cathy S., where the adults could be subject to arrest and prosecution for deviant sexual behavior. Doe v. Richmond, supra. Thus, if the courts will not provide homosexual behavior the same protection under the privacy considerations of the constitution pursuant to the incorporation doctrine of the fourteenth amendment equal protection provision, and such relationships, even when regularized, are not accorded the attributes of a marriage, infra, it can correctly be described as morally deviant or immoral.
While, unquestionably, the courts of this nation are viewing the emergent issue of homosexuality with much closer scrutiny, understanding and consideration, the national bias, which cannot be ignored is to favor the non-homosexual parent in a custody case. We would prefer to have the trial judge express his belief as to the morality of this issue, than to conceal it and to have it be an unverbalized consideration.
[ 344 Pa. Super. Page 58]
The appellant would have this Court make a bold policy statement that a parents' homosexuality is not a relevant consideration in awarding custody unless it can be shown that the parents' homosexual behavior adversely affects the children in question. In doing so, she would have us find that the trial court erred in considering the lesbian relationship with Cathy S. in deciding to limit partial custody. This argument makes an erroneous logical conclusion that homosexuality equals homosexual behavior which equals a lesbian relationship, ergo, if homosexuality is not relevant, lesbian relationship is not relevant. We strongly disagree.*fn4
To make such a finding, the law of Pennsylvania would go far beyond most, if not all, other states in declaring that a lesbian relationship is presumed to be regular, or to state it another way, the presumption of regularity that applies to a heterosexual family (spousal or nonspousal) relationship applies equally to a homosexual relationship. The effect of this is apparent in this case -- the burden of proof shifts to the parent alleging the traditional relationship to prove any adverse effect that might arise from the homosexual union. The appellant and the dissent would then rely on this "nexus theory" to either grant or deny visitation or custody according to the proof tendered. We submit the law is and should be that, where there is a custody dispute between members of a traditional family environment and one of homosexual composition, the presumption of regularity applies to the traditional relationship and the burden of proving no adverse effect of the homosexual relationship falls on the person advocating it.*fn5
[ 344 Pa. Super. Page 59]
In addition to the reasons flowing from the discussion on criminal law above, there are other considerations. Homosexual marriages are not permitted and the relationship is not to be equated with heterosexual relations, notwithstanding the Equal Rights Amendment (Pa. 1972); Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974).*fn6 The Washington Court of Appeals stated,
In the instant case, it is apparent that the state's refusal to grant a license allowing the appellants to marry one another is not based upon appellants' status as males, but rather it is based upon the state's recognition that our society as a whole views marriage as the ...