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Court says visitation cannot be barred based on parent's sexual orientation Restrictions allowable only if conduct is harmful, appeals judges rule


The state's highest court ruled yesterday that trial judges can draw no distinctions between homosexual and heterosexual parents when restricting visits with their children.

The relevance of a parent's sexual conduct to visitation is whether that conduct is harmful to the children's well-being, the Court of Appeals said.

"It is a very strong statement that a gay parent will be judged the same as a heterosexual parent," said Nancy Polikoff, one of three attorneys for a gay Glen Burnie father and the local lawyer for a gay legal advocacy group that supplied much of his appellate court firepower.

"It is resoundingly everything we could have hoped for," said Beatrice Dohrn, legal director for the Lambda Legal Defense and Education Fund.

She hailed the Court of Appeals ruling as a victory because it explicitly applies standards to gay parents that have been in effect for heterosexuals for nearly two decades.

It upholds the intermediate appellate court's 1997 ruling in the Anne Arundel County divorce case, elaborates on rulings in earlier cases and specifies a standard similar to most other states.

The opinion clarified last year's Court of Special Appeals ruling, which said a judge must be convinced that the visits harm a child before those visits can be restricted.

The new ruling by the state's highest court said a judge need not wait for a child to be harmed, but can make a finding of future harm based on evidence. However, restrictions based on personal bias, "stereotypical presumptions" or "abstract presumptions" can be reversed, the judges wrote.

"I didn't get as much as I asked for, but I certainly improved the situation for my client over what we had coming out of the Court of Special Appeals," said Cynthia E. Young, the Annapolis lawyer for the mother.

The ruling allows Kimberly Boswell to seek a hearing before an Anne Arundel judge on whether the children's overnight visits with their father and his partner harm them. Judge Lawrence H. Rushworth restricted the visits to no overnights and no visits in the presence of their father's lover or "anyone having homosexual tendencies," but last year the Court of Appeals overturned that.

Yesterday's ruling stemmed from her appeal in a visitation dispute with Robert Boswell, who has been living with a male partner since splitting up with his wife in 1994. She had custody of their two school-age children.

Trial testimony indicated the Boswells' son said he would rather not be around his father's companion and did not want to sleep at his father's home. Based on that, Rushworth restricted the visits. Accusing him of anti-gay bias, Robert Boswell's lawyers asked him to recuse himself from the case. He has.

Robert Boswell appealed to the Court of Special Appeals, which last year ruled in his favor. It also said Rushworth made a factual error -- only one child objected to overnight visits -- and ordered the case back to a trial court on that issue. Kimberly Boswell appealed.

In March, Rushworth was chastised by the state Commission on Judicial Disabilities for what could be considered anti-gay bias. He said that he was "wilted" by the warning, never meant to single out gays and was seeking to give the father and children uninterrupted time together.

Yesterday's opinion was written by Judge Howard S. Chasanow, with Judge Dale R. Cathell writing a two-paragraph concurring opinion.

Pub Date: 12/19/98

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