Originally published on Advocate.com November 15 2003 12:00 AM ET
North Dakota's supreme court has ruled that a lesbian couple's relationship should not deprive them of custody of two girls, despite the girls' father's argument that the living arrangement provides "the wrong moral character" for the children. The father, Shawn Damron, was unable to prove that the physical or emotional health of the children was being endangered or their emotional development impaired by their current living arrangement, the high court said Thursday. Damron had to provide that evidence in order to win his custody fight, the justices concluded. The girls, ages 10 and 4, live with their mother, Valerie Damron of Minot, and her partner, Ann Elliot. Shawn and Valerie Damron divorced in September 2001. Afterward, Valerie Damron began living with Elliot, and they now own a home together. Valerie Damron described her reaction to the decision as one of relief. "I cannot even express or put into words the strain this has caused," she said. "I'm relieved, and, hopefully, this is over." Shawn Damron "is a good dad," his former wife said. "Hopefully, we can come to some kind of working relationship with this."
Shawn Damron and Elliot were friends who served together at Minot Air Force Base, and Shawn Damron introduced Elliot to his wife, court filings say. Damron is still stationed at the base, while Elliot now works as a private security officer. The Damrons' divorce agreement said the girls would live with Valerie Damron and that Shawn Damron would have liberal visiting rights. Shawn Damron knew of his former wife's sexual orientation when he agreed to the custody arrangement, court documents say. The girls continued living with Valerie Damron and Elliot while the appeal was being decided. "Shawn Damron does not dispute the oldest child is doing well physically, academically, and socially, and he has not noticed any adverse impact on the youngest child," Justice William Neumann wrote in the court's unanimous opinion. "Although Shawn Damron testified Valerie Damron's homosexual relationship
'sets the wrong moral character for my children,' he presented no evidence that the relationship was causing actual or potential harm to the children."
Shawn Damron challenged the custody arrangement in September 2002. North Dakota law makes it more difficult for a parent to dispute a custody arrangement if the request is made less than two years after the original decision. However, northwest state district judge Gary Holum granted Shawn Damron's request, relying on a 1981 North Dakota supreme court decision that used homosexuality as the reason for giving custody of two children to their heterosexual father. The decision, Jacobson v. Jacobson, was written by the court's chief justice, Gerald VandeWalle. The decision Thursday overrules any presumption in a custody case that children are harmed simply by living in a homosexual
household, Neumann wrote.
The court did not address Valerie Damron's arguments that her constitutional rights would be violated by a custody change based solely on her sexual orientation. The dispute drew attention from the American Civil Liberties Union Foundation, which represented Valerie Damron in the case. Her Minot attorney, Denise Hays, said she did not believe the court needed to explore constitutional issues to reach the correct result. "She was right to begin with," Hays said. "This should never have been a case that went beyond the initial pleadings. I think it was a frivolous motion to begin with, because there was never any harm shown against these children."