The Respondent is seeking to live an unconventional life-style that has not been fully embraced by society at large regardless of whether or not same-sex relationships should or should not be considered sexual misconduct. Like it or not, this decision will impact her children in ways that she may not have fully considered and most will be unfavorable.The appeals court was favorable towards lesbian rights, but this comment really explains what's wrong:
We seem not to have a problem deciding who gets the car or who gets the house without considering the best interests of the car or the house. As for whether it's "better", I submit that there is virtually no objective test for "best interests" and this is just an excuse for the courts to exercise their prejudices. We are fortunate in this case that the judge made the idiocy explicit. ...Lesbian law professor Nancy Polikoff likes the outcome, but adds this caveat:
The only reason the judge's idiotic reasoning is known and going to get corrected in this case is because he said what his reasoning was explicitly. Most of the time, the prejudices are silent and unreviewable. The "best interests of the child" standard doesn't do much other than allow the judge to exercise his prejudices about what he thinks are in the best interests of the child. It's rarely any kind of objective analysis. (As a parent, I certainly wish there was some objective way to determine what was in a child's best interests, but I'm not deluded enough to believe that there is such a thing.)
And yes, I am suggesting that we replace the "best interest" test for child custody issues with the same sort of analysis that determines who gets the car and the house. The right to raise one's child as one pleases subject to not infringing on the rights of others (including the child's, of course) is not much different from the right to control one's property as one pleases subject to not infringing on the rights of others.
Ironically, I strongly suspect it would be in the best interests of the children if the State refrained from trying to decide what was in their best interests.
This trial court was transparent about its reasoning. All parents make mistakes and there is almost always something other than sexual orientation that a judge can use as a basis for a decision. In fact, in spite of this appellate court win, the court sent this case back to be retried. In other words, it's not over yet for Angela Maxwell and her children (I can only hope they settle at this point.) Even the prohibition on her partner's overnight presence is still on the table; there just need to be evidence tying the restriction to the children's best interests. Some children are uncomfortable with a parent's same-sex partner, and that has been used over and over to justify restrictions. The two older Maxwell children said they liked their mother's partner, but what if they hadn't? Furthermore, all the children were doing well; the appeals court calls them "flourishing." Well, not all children do well. It is still possible for a trial judge to find a causal link where none exists between a parent's sexual orientation and the problems that a child might be experiencing.It seems to me that the LGBT lobby ought to be opposing the Best Interest Of The Child (BIOTCh) standard for family court child custody. Please let me know if they ever do that. It appears to me that they are too closely allied with feminists for that.