Lesbian Mother Loses Custody of Her Child

In Bottoms v. Bottoms, the Virginia Court of Appeals expanded the rights of a lesbian mother to retain custody of her birth child, but the ruling was overturned in 1995 by the state’s high court, which awarded custody to the woman’s mother.

Date September 21, 1993-April 21, 1995

Also known as:Bottoms v. Bottoms (1995)

Locale Virginia

Key Figures

• Sharon Bottoms (b. 1970), who sought custody of her birth son
• April Wade Sharon Bottoms’s partner
• Tyler Doustou (b. 1991), son of Sharon Bottoms
• Pamela Kay Bottoms mother of Sharon Bottoms, who sought custody of her grandson Tyler Doustou
• Buford M. Parsons, Jr. trial judge of the Henrico County Circuit Court, who ruled in favor of custody
• A. Christian Compton senior justice of the Virginia Supreme Court, who overturned the earlier custody decision

Summary of Event

After Pamela Kay Bottoms learned in 1993 that her daughter, Sharon Bottoms, had a lesbian partner who was living with her, she went to court to try to obtain custody of her two-year-old grandson, Tyler Doustou. Pamela Kay Bottoms alleged that it would be mentally and physically harmful for the boy to grow up with and be raised by two women in a lesbian relationship. In view of “social condemnation,” she asserted that remaining in that environment would be harmful to the boy’s associations with “his peers and with the community at large.” On September 21, 1994, Judge Buford Parsons, Jr., of the Henrico County Circuit Court, ruled in favor of the grandmother and transferred the custody of young child to her.

Judge Parsons based his ruling on the belief that a person who engages in homosexual conduct, which was illegal in Virginia, was “an unfit parent.” In addition to this ruling, he also issued a visitation order, prohibiting Sharon Bottoms from having Tyler in her home, which she shared with her partner, April Wade. The order further stipulated that Sharon was not to visit her son in the presence of Wade. Sharon appealed the custody ruling. The case emphasized the precedent of Doe v. Doe (1981), in which the state’s Supreme Court had earlier held that a parent’s homosexual orientation did not necessarily disqualify that parent from obtaining custody of his or her child.

On June 21, 1994, the Virginia Court of Appeals agreed to review the decision. During the hearing before a three-judge panel, Sharon testified that she and her partner had a lifetime commitment to each other. She presented substantial evidence refuting the claim that she was an unfit parent. Charlotte Patterson, a psychologist at the University of Virginia, testified that scientific studies had shown that a child raised by a gay or lesbian parent was at no disadvantage relative to a child raised by a heterosexual parent.

On June 21, 1994, the three judges of the court of appeals unanimously reversed the ruling and remanded the case to the county court to restore custody to Sharon. The three judges found no evidence that lesbians were necessarily unfit parents, and they noted that the custody law of the state presumes that it is normally in the best interest of a child to live with a birth parent. In the court’s judgment, “the evidence showed that Sharon Bottoms is and has been a fit and nurturing parent who has adequately provided and cared for her son.” Pamela Kay Bottoms appealed the decision to the Virginia Supreme Court.

Because of its important legal implications, Bottoms v. Bottoms elicited a number of well-researched amici curaie briefs, or documents giving arguments and legal precedents for the Court to consider. Several respected organizations, including the American Psychological Association and the National Association of Social Workers, joined forces in producing a single brief, which argued that a parent-child bond should be disrupted only for compelling reasons. According to the brief, “social science research shows that an individual’s sexual orientation does not correlate with the person’s fitness as a parent.”

On April 21, 1995, the Virginia Supreme Court, voting four-to-three, reinstated the circuit court’s custody decision. Writing for the majority, Justice A. Christian Compton insisted that lesbian conduct, because it was a felony in Virginia, must be an “important consideration in determining custody.” Compton claimed to find evidence in the record that Sharon had not been a good mother. In the ruling, however, Compton rejected the key element of Judge Parson’s legal rationale. Reaffirming Doe v. Doe, he wrote that it was well established that “a lesbian mother is not per se an unfit parent.”

Although Pamela Kay Bottoms retained custody, Compton’s ruling overturned Parson’s visitation order, which had prohibited contact between the child and his mother’s partner. The three dissenters wanted to affirm the holding of the court of appeals. They argued that because Parson’s ruling was based on the wrong rule of law, the case should have been remanded to the trial court for entirely new proceedings.

The 1995 ruling did not end the dispute between Sharon and her mother. On several occasions the two women were back in Parsons’s court disputing visitation rights. In 1997, the case again went to the court of appeals. As late as 1998, Parsons continued to ignore rulings by higher courts, and he disallowed any contact between Tyler and his mother while April Wade was present.

Significance

The 1995 ruling in Bottoms v. Bottoms represented little more than a reaffirmation of the ruling in Doe v. Doe. Thus, the court of appeals’ liberal ruling of 1994, which had not penalized Sharon Bottoms for her sexual orientation, did not become a judicial precedent. The 1995 ruling by Virginia’s Supreme Court meant that lesbian sexual activity, which was a crime at that time, would be a negative consideration in custody decisions. It is important to note, nevertheless, that the court explicitly reaffirmed that in some cases, awarding custody to a gay or lesbian individual would be in the child’s best interest.

Bottoms v. Bottoms, however, stopped being a binding precedent when the U.S. Supreme Court, in the landmark case Lawrence v. Texas (2003), disallowed criminalization of gay and lesbian sex among consenting adults in private. Since Justice Compton’s opinion was based primarily on the fact that such conduct was illegal at that time, the logical inference is that sexual orientation should no longer be an “important consideration” in determining custody in the state of Virginia.

Bibliography

Abrams, Nancy. The Other Mother: A Lesbian’s Fight for Her Daughter. Madison: University of Wisconsin Press, 1999.

Bozett, Frederick. Gay and Lesbian Parents. Westport, Conn.: Greenwood Press, 1994.

Curry, Hayden, and Frederick Hertz. Legal Guide for Lesbian and Gay Couples. Santa Cruz, Calif.: Nolo Press, 2004.

Howey, Noelle, and Ellen Samuels, eds. Out of the Ordinary: Essays on Growing Up with Gay, Lesbian, and Transgender Parents. New York: St. Martin’s Press, 2000.

Patterson, Charlotte J. “The Family Lives of Children Born to Lesbian Mothers.” In Lesbian, Gay, and Bisexual Identities in Families: Psychological Perspectives, edited by Charlotte J. Patterson and Anthony R. D’Augelli. New York: Oxford University Press, 1998.

Senak, Mark. Every Trick in the Book: The Essential Lesbian and Gay Legal Guide. New York: M. Evans, 2003.

Wells, Jess, ed. Lesbians Raising Sons: An Anthology. Los Angeles: Alyson, 1997.