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| Susan Sommer (left) senior counsel with Lambda Legal, pictured
with Ulf Hedberg, who is seeking a court order that will allow
him to live with his partner and 12-year-old son. A Virginia court granted Hedberg
custody on the condition that he not live with his partner. (Photo by Matthew
S. Gunby/AP)
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HOME > NEWS > LOCAL
By: LOU CHIBBARO JR. COMMENTS
A Maryland appeals court heard arguments this week over whether it should reverse
a lower court ruling that prohibits a gay father from living with his same-sex
domestic partner while raising his 12-year-old son.
In an April 12 hearing before the Maryland Court of Special Appeals in Annapolis,
gay rights attorney Susan Sommer argued that the custody restriction against
Ulf Hedberg violates the U.S. Supreme Court’s 2003 decision of Lawrence
vs. Texas, in which the court struck down state sodomy laws.
Sommer, senior counsel for the gay group Lambda Legal Defense & Education
Fund, noted that Hedberg and his partner, Blaise Delahoussaye, had raised the
child since 1996, when Hedberg and his wife separated.
Hedberg and his wife had been living in Alexandria, Va., and shortly after
the separation, Hedberg, the director of archives at Galludette University,
and Delahoussaye, an accountant with the National Institutes of Health, bought
their own house in Alexandria, where they raised the child together for five-and-a-half
years.
The former wife, Annica Detthow, continued to visit the child following her
and Hedberg’s divorce and did not appear to object to Hedberg and Delahoussaye’s
living arrangement. But in 2002, Detthow moved to Florida and petitioned the
Alexandria District Court for sole custody.
A Circuit Court judge denied her custody request and granted custody to Hedberg.
But at the same time, the judge imposed a condition prohibiting Hedberg from
living with Delahoussaye.
In a practice that surprised attorneys on both sides, the Circuit Court proceedings
were conducted without an official court reporter, resulting in the judge’s
custody order becoming the only written record in the court’s action.
Although the order doesn’t cite any law on which the judge based his prohibition
on Hedberg and Delahoussaye living together, Sommer said judges in similar custody
cases have cited the Virginia sodomy law as grounds for barring a gay parent
from gaining custody of a child unless the parent agrees not to cohabitate with
a same-sex partner.
The 2002 ruling by the Alexandria Circuit Court judge came one year before
the Supreme Court handed down its Lawrence decision.
Change of states
Hedberg and Delahoussaye complied with the custody order by moving into separate
apartments in Rockville, Md., Sommer said. Delahoussaye visited the child regularly
on weekends, according to Sommer. Last year, Hedberg asked the Montgomery County,
Md., Circuit Court to lift the restriction barring him from living with his
partner while raising his son.
Sommer said Hedberg went to the Montgomery County court because he now lives
in that jurisdiction and was hopeful the court would base its ruling on Maryland
custody laws, which are more favorable to gay parents than Virginia law. Unlike
Virginia, Maryland courts routinely grant custody of children to gays who live
with domestic partners following the separation or divorce from a married spouse,
Sommer said.
Susan Silber, a gay rights attorney who practices law in Montgomery County,
said a Montgomery County Circuit Court judge in Rockville upheld the Virginia
court’s decision in Hedberg’s case in September 2004, much to the
dismay of Hedberg and Delahoussaye.
Silber, who argued the case before the Montgomery circuit court, said the judge
ruled that Maryland law required that he uphold decisions in custody cases issued
in other states if no significant reason could be shown to overturn such a decision.
The judge held that he could find no compelling reason to change the decision
by the Virginia judge, Silber said.
In her arguments before the Maryland appeals court this week, Sommer said that
in addition to the invalidation of the Virginia sodomy law, as a result of the
Lawrence decision, the Maryland appeals court should overturn the circuit court
decision on another ground. Sommer said the forced separation of Hedberg and
Delahoussaye, which came after the two had raised the boy together for a prolonged
period, created a “drastic decline in the quality of life” for the
child.
She argued that the separation forced the two men to give up a larger house
with a backyard that had been located near a good school. Sommer told the appeals
court that the boy also experienced hardship by losing the daily presence of
Delahoussaye, who had served as a second parent.
The adverse affect on the boy, now 12, is a compelling reason for the court
to consider reversing the custody restriction banning Hedberg and Delahoussaye
from living together, Sommer argued.
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