Appeals court tosses out order in lesbian custody case
July 02 2004 12:00 AM ET
An appeals court threw out a lower court order Thursday that barred a woman who left a lesbian relationship from teaching her adopted daughter anything that might be considered "homophobic."
The ruling by the Colorado court of appeals did not settle the case but instead sent it back to the lower court to determine whether antihomosexual religious instruction by one adoptive parent violates the First Amendment rights of the other.
The ruling came in a custody case that has drawn national attention from conservative groups and led to an unsuccessful attempt to impeach the Denver district judge who issued the order. Judge John W. Coughlin granted joint custody of the girl to Cheryl Clark, who had raised her with Elsey McLeod until Clark converted to Christianity and left the relationship.
The appeals court upheld the lower court's decision to grant McLeod joint custody, even though the adoption papers list only Clark as the adoptive parent. The appeals court said McLeod has become the child's "psychological parent" and that ending or curtailing visitation would put the girl at risk of "emotional harm."
In the custody settlement, Coughlin gave Clark sole responsibility for the girl's upbringing, including religious instruction, but added the restriction against homophobic teachings. McLeod's attorneys argued that the order was designed only to protect McLeod's relationship with the child, since divorcing husbands and wives are told not to disparage each other in front of their children.
Clark's attorneys said the order was so broad that it could include everything from saying anything bad about homosexuals to teaching against homosexuality. They contended it could even require Clark to black out portions of the Bible before her 9-year-old daughter reads it. The appeals court ordered Coughlin to decide whether the ban on homophobic instruction violates Clark's First Amendment rights to control the girl's religious upbringing.
Clark, a psychiatrist, and McLeod, a psychologist, were living together when they agreed to adopt a baby from China. Because both Chinese and Colorado law bars same-sex couples from adopting, only Clark was listed as the legal parent. McLeod posed as her roommate. The women sent out an arrival announcement listing them both as mothers and encouraged the girl to call Clark "Momma" and McLeod "Mommy." Clark added McLeod's name to her daughter's and changed her will to make sure McLeod would get custody upon her death.
According to Coughlin's order, Clark began to feel that McLeod had bonded so strongly with their daughter that Clark was being excluded. Clark was backed by the Alliance Defense Fund of Scottsdale, Ariz., a Christian legal group that challenged San Francisco's decision to allow gay marriage.
Some state legislators tried to impeach Coughlin, but the effort failed after lawmakers said he apparently ruled in the best interests of the girl in an unusual case.