Interesting differences in presentation of the issue in these two articles.
If Theron McGriff had a live-in girlfriend instead of a live-in boyfriend, would he have lost custody of his two children? That is the crux of a case argued Monday before the Idaho Supreme Court.
McGriff believes he lost custody because he is gay. His ex-wife's attorney argued that wasn't what happened at all. She argued that McGriff lost custody because he was uncooperative and unreasonably angry at his ex-wife, Shawn Weingartner.
McGriff's relationship with his ex-wife and his decision to have a live-in partner both were part of a lower court decision that ended McGriff's joint custody arrangement and gave sole custody to Weingartner.
Political scientists and gay rights activists believe the Supreme Court decision -- expected to be issued in about six months -- could have an impact on other gay parents in Idaho. Family law issues are generally state-centered, according to legal scholars, so the case is not expected to have national implications. [...] As each attorney presented arguments, justices interrupted with questions and comments that cut to the key issues of the case, peppering each side equally:
- Justice Wayne Kidwell to McGriff's attorney, Richard Hearn: "I'm wondering if the magistrate was on fairly solid ground if he had not referred to the same-sex matter."
- Chief Justice Linda Copple Trout to Hearn: "There were a number of factors of conflict between the mother and father. There was even the father's own statement that he does not want to talk to the mother. That's not enough evidence?"
- Justice Kidwell to Weingartner's attorney, Marie Tyler: "You say this is not a gay rights issue. I've gone through the file fairly carefully, and the only thing I see is about homosexuality. It's very convenient now for you to say no, when it's very clear that was the concern when you filed the petition. You made it a gay rights issue."
Idaho high court takes up gay dad's caseBy REBECCA BOONE
ASSOCIATED PRESS WRITER
BOISE, Idaho -- Homosexuality should be no more of a factor when determining child custody than a health condition like epilepsy, the attorney for a gay father argued before the Idaho Supreme Court on Monday.
Theron McGriff of Idaho Falls appealed to the high court after a magistrate ruled in 2002 that he could no longer see his two daughters if he lived with his partner of many years. "We feel it would be especially inappropriate for the court to get involved in the gender of Theron's partner," said Richard Hearn, representing McGriff. "There is no evidence that this had any impact on the children." In 1938, Hearn said, the Idaho Supreme Court found that a mother could not be denied custody because she remarried three weeks after her divorce, though at the time such behavior was stigmatized. The court made a similar ruling when presented with a parent suffering seizures from epilepsy, Hearn said.
Leaving aside the terribly unfortunate choice to equate homosexuality with a disease condition ... it will be fascinating to see what the Idaho Supreme Court does with this. The plain fact is, if the only issue was the fact that the parties didn't seem to be cooperating with each other, the original judge could have simply said, "You know, I don't give a rat's ass if you hate each other. You will cooperate and you will receive counseling on how to handle your dislike of each other so that it doesn't hurt your children, or I will hold you both in contempt of court." It seems to have been the judge's decision to allow Weingartner to bring the father's lifestyle into the argument that caused this case to get irretrievably weird.
All that said, if the facts of the case -- absent the sexual orientation issue -- are remotely as reported in the Statesman sidebar entitled "The lower court ruling" ... then one suspects that McGriff is going to have a fairly hard row to hoe in this case. As Justices Kidwell and Trout note, there were substantial areas of intense conflict, and had the magistrate simply not said a single word about the sexual orientation issue -- had Weingartner not raised it directly as an issue of concern -- then it might be considerably more difficult to appeal the decision.
Posted by iain at May 06, 2004 02:53 PM
