G.A. v. D.A.

TURNAGE, Judge. Gene A_filed suit for the dissolution of his marriage with Dena A_and for custody of their son Curtis. The court dissolved the marriage, divided the property, and awarded custody of Curtis to Gene. Dena contends on appeal that the welfare of Curtis would be better served by awarding her custody and that the court should have made such order even though she is a lesbian. Gene and Dena were married in April of 1983 and separated October 1, 1984. At the time of trial, Curtis was living with his father in a small house located on a farm. Apparently Gene, his mother and a brother owned adjoining tracts on which each of them lived. At the time of trial, Gene was in the process of adding a room to his house so that Curtis would have a room of his own. Until the completion of that addition, Curtis was occupying a separate room in his grandmother’s trailer. Dena was living in Columbia with her girl friend, Yvonne, and Yvonne’s two daughters, ages 14 and 15. Although Dena said she did not advertise the fact that she was a lesbian, from her testimony it is apparent that she did not attempt to keep it a secret. Yvonne’s daughters were aware of the relationship between their mother and Dena, and Dena testified that the girls handled the relationship the way they wanted to. She said that the girls were free to tell others about the relationship between Dena and Yvonne. Dena said that she and Yvonne had a three bedroom house so that Curtis would have a room of his own. She said there was a preschool facility across the street from her place of employment where Curtis could stay during the day. Dena’s testimony was that Curtis would be better off with her because of her superior housing facility. Gene’s testimony was that he could take care of Curtis between his mother and his brother and his brother’s wife and, in addition, could give Curtis religious training. No mention was made by Dena of any religious training that she would make available to Curtis. The court found that the best interest of Curtis would be served by giving his custody to Gene, stating that the fact that Dena was a lesbian tipped the scales in favor of Gene. The trial court is vested with broad discretion in determining child custody, and unless this court is firmly convinced that the welfare of the child requires some other disposition, the decision will be affirmed. [728] Davis v. Davis, 693 S.W.2d 879, 888[11,12] (Mo.App.1985). In S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo.App.1987), the court considered the desire of a self-proclaimed lesbian to obtain custody of her children. The court noted that the mother and her lover showed affection toward one another before the children and slept together in the same bed. The court held that this presented an unhealthy environment for minor children because such conduct can never be kept private enough to be a neutral factor in the development of a child’s values and character. Id. at 166[5]. As in S.E.G., Dena testified that she and Yvonne hugged in the presence of the girls. From her testimony, it was apparent that no attempt was made to keep her relationship with Yvonne secret but that such relationship was open and acknowledged to the girls. Likewise, Dena testified that, as far as Curtis is concerned, she thought he would have an advantage over the girls in handling her sexual preference if he were in her custody because he is younger and he would grow up with it. The evidence was that Dena had one lover prior to her marriage and that she only got married to see if she could change her sexual preference. Since she and Gene separated, she had had two lovers, including Yvonne. Gene testified that Dena had moved seven times between their separation and the date of trial. This court agrees with the observation in S.E.G. that a court cannot ignore the effect which the sexual conduct of a parent may have on a child’s moral development. As in S.E.G., the environment into which Curtis would be thrust by granting custody to Dena would not be a healthy one. Dena’s argument seems to be that this court should overlook her sexual orientation and award custody solely on the basis of which parent would provide the better house. There is far more to the welfare of the child than the physical condition of the house in which it lives. This court is convinced that the welfare of Curtis is better served by awarding his custody to Gene. The judgment is affirmed. KENNEDY, C.J., concurs. LOWENSTEIN, J., dissents in separate opinion.