Sexual Conduct of Parent Can Be Used to Determine Child Visitation, Court Says

By Melanie Arter | July 7, 2008 | 8:05 PM EDT

( - The Maryland Court of Appeals has ruled that courts may take into account the "sexual conduct of a parent to determine whether it has an adverse impact on the child" in child visitation cases.

The ruling comes as a result of a case involving a former wife, Annica Detthow, and her ex-husband, Ulf Hedberg, who is now living with a male lover. When Hedberg left Detthow for another man, a Virginia court gave him custody of their child, granted liberal visitation to his ex-wife and ordered that Hedberg no longer live with his same-sex partner.

The Virginia court system is one of many that are allowed to consider whether the parent is living with an unmarried partner, regardless of whether it is a homosexual or heterosexual relationship.

Maryland courts no longer take extramarital relations into consideration when determining child visitation and custody, absent proof of actual harm to the child.

Instead of adhering to the Virginia court's ruling, Hedberg moved to Maryland a year later and asked the Maryland courts to invalidate the cohabitation restriction. After the Maryland Circuit Court refused to change the custody order, Hedberg, with help from the National Center for Lesbian Rights, appealed the ruling.

His attorneys argued that the court case Lawrence v. Texas, which struck down that state's sodomy law, made the cohabitation restriction unconstitutional. But the Maryland Special Court of Appeal has rejected the father's argument that Lawrence should render the court's cohabitation ruling invalid.

"The Maryland Special Court of Appeal rightly rejected the argument that any law founded on morals is unconstitutional. Law is morality in print. To eliminate morality as a basis of law would eliminate law itself," said Mathew Staver, president and general counsel of Liberty Counsel, which represents the mother, Annica Detthow.

"Courts have the right to protect children in custody disputes from being thrust into an environment where one parent is cohabiting with an unmarried partner," said Staver.

Instead, the court sent the case back to the trial court where Hedberg is expected to prove that it is harmful to the child to not allow him to live with Hedberg and his same-sex partner. According to the Liberty Counsel, "Hedberg's burden of proof will likely seem insurmountable."

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