Apr 15, 2005  |  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.