Washington Supreme Court Overturns Discrimination in Lesbian Mom Custody Case

The Washington Supreme Court ruled today that a lower court improperly looked unfavorably on a lesbian mom in a child custody case because of her sexual orientation.

The plaintiff, Rachelle Black, had been married to a man, court documents tell us. They had three sons, and Rachelle was the primary caregiver while her husband Charles was the primary wage earner. Seventeen years later, Rachelle came out as a lesbian and filed for divorce. The children were seven, 12, and 15 at the time.

The family had attended a “conservative Christian” church, which taught that “homosexuality is a sin,” and their children went to small, private Christian schools.

The trial court gave primary custody to Charles and restricted Rachelle from discussing religion, homosexuality, or “alternative lifestyle concepts” with the children—restrictions the state Supreme Court said were unconstitutional.

The lower court relied partly on testimony and recommendations from the children’s therapist, who “noted that Rachelle was unemployed, did not have a plan for future housing, and relied on her partner for support.” Charles “has a history of employment and being a good provider, so obviously he is a stable parent.” This despite the fact that Rachelle had paused her career to raise children, and so Charles would obviously have a better history of employment.

Recommendations from the guardian ad litem (GAL), a person appointed by the court to represent the best interests of the children, also weighed heavily in the earlier ruling. The GAL referred to Rachelle’s sexual orientation as a “lifestyle choice.”

In sum, the trial court said:

Here, [Charles] is clearly the more stable parent in terms of the ability to provide for the needs of these children, both financially as well as emotionally and in maintaining their religious upbringing…. I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality.

The state Supreme Court was having none of this. In response to the lower court’s use of “lifestyle choice,” it wrote pointedly, “This is contrary to our current understanding of sexual orientation.” It reminded us that “a trial court may not consider a parent’s sexual orientation as a factor for custody decisions absent an express showing of harm to the children.”

That was, however, exactly what the trial court did, the Supreme Court said. The testimony and recommendations of the GAL “evinces an impermissible bias against Rachelle due to her sexual orientation…. The trial court’s improper consideration of Rachelle’s sexual orientation was intertwined with an implicit preference for Charles’ religious beliefs.”

“But for Rachelle’s sexual orientation and the challenge this presented to Charles’ religious beliefs, both Rachelle and Charles are capable parents,” the Supreme Court concluded. “The trial court considered Rachelle’s sexual orientation as the primary reason for concluding that Charles is better suited to address the children’s emotional needs and maintain their religious upbringing.” The lower court decision was reversed and remanded (which means it goes back to the lower court for reconsideration in light of the higher court’s findings).

“If a parent’s sexual orientation is wrongfully considered in a child custody case, discrimination is baked in to every layer of that decision,” said David Ward of Legal Voice, which led her case. “We applaud the Supreme Court for recognizing this, and we hope this decision will send a strong message to other courts: discrimination against LGBTQ parents has no place in the courtroom.”

This is wonderful news, but also somewhat sobering. Custody cases between newly out lesbian moms and their ex-husbands were much more frequent in the 1970s (and form an important part of our community’s history), and more often went against the mother because of her sexual orientation. Today, custody cases seem more likely to involve biological and nonbiological mothers who had been raising children together. This case shows that even the earlier biases still exist—but they can be fought. Congratulations to Rachelle and her children on their victory, for themselves and all of us.