Court backs gay parent, rejecting Pa. precedent

HARRISBURG - A Pennsylvania appellate court has rejected a 25-year-old legal precedent and ruled that a parent's homosexual relationship cannot be used against the parent in determining child custody.

The eight-judge Superior Court panel issued its decision last month in a custody battle between a mother and father identified only by their initials.

It also reversed the lower-court ruling that awarded the father primary custody of their daughter, and granted the appeal of the mother, who is gay, to continue shared custody.

In doing so, the judges overruled a 1985 Superior Court decision that said a parent must prove that his or her gay relationship is not detrimental to the child.

That presumption "is based upon unsupported preconceptions and prejudices - including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship," Judge Christine Donohue wrote in the Jan. 21 opinion.

The state Supreme Court also advises against relying on presumptions in deciding child-custody cases between the parents, Donohue wrote.

The unidentified trial judge had relied, in part, on the 1985 case. In it, Superior Court rejected a woman's contention that sexual orientation should not be a consideration in a custody determination, Donohue wrote. A panel voted, 2-1, to dismiss the notion that a "homosexual relationship could ever be the equal of the traditional family as a suitable family arrangement, and indicated that it was 'inconceivable' that a child could be exposed to a homosexual relationship 'and not suffer some emotional disturbance, perhaps severe,' " Donohue wrote.

In the case decided last month, the father is a police sergeant in suburban Harrisburg and the mother a state police lieutenant, according to the court.