In North Carolina, the trial court has the authority to make an order on all issues o pertaining to custody and visitation of children as well as child support. These initial orders are always modifiable by the court. In regard to custody, the court will always ask, “What is in the best interests of the child?” In considering what is in the “best interests” of the child, the court may review a number of different factors. Essentially the court may review anything and everything that affects the welfare of the child. For example, these factors may include (but are certainly not limited to) the morality of the parents and child, wishes of the child, domestic violence in the home, and nurture of a child’s spirituality. Furthermore, when modifying a custody determination, the court must decide if there has been a “substantial change of circumstances” which affects the welfare of the child. The Court may consider all changes, regardless if the change affects the child negatively or positively.

Of the many factors that affect the welfare of the child, one of the more interesting areas that the Court may consider is the “lifestyle of the parent.” The term lifestyle covers a wide range of topics, from adultery to substance abuse to career change to military service.

One of the topics included within the pertinent case law dealing with a parent’s lifestyle is homosexuality. The flagship case on this topic is Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), which is a North Carolina Supreme Court decision from 1998. In Pulliam, the facts showed that the mother and father separated in 1990 when the mother went to live with her boyfriend in Wichita, Kansas. In 1991, pursuant to a consent order, the father was granted physical custody of the two minor children. At the time of the consent order, the two boys were six and three years old, respectively. In 1993, the mother married her boyfriend, Mr. Pulliam, in Kansas. In 1994, Tim Tipton, the father’s boyfriend, moved into the home with the father and the two minor children.

In 1995, based upon the father’s homosexual relationship, the mother filed a motion to modify custody. The trial court granted the motion and the father appealed. The North Carolina Court of Appeals reversed the trial court on the grounds that a substantial change in circumstances had not occurred based on the evidence in the record. The mother appealed to the North Carolina Supreme Court.

The North Carolina Supreme Court reversed the Court of Appeals and ordered that the trial court’s ruling be reinstated. The Supreme Court found that the evidence showed that the father and his boyfriend would kiss and hold hands in front of the children, and shared the same bedroom while the children were in the house. The father and Tim Tipton also admitted to engaging in oral sex in the bedroom, but only with the door closed and never in front of the children. Furthermore, the Supreme Court cited the trial court’s finding that, “The activity of the Defendant will likely create emotional difficulties for the two minor children….That the active homosexuality of the Defendant and his involvement with Tim Tipton by bringing Tim Tipton in to the home of the two minor children is detrimental to the best interest and welfare of the two minor children.” Id. at 623, 902.

Justice John Webb wrote the dissent and claimed that the true reason behind the majority opinion was the fact that the father was gay. The majority responds to the dissent by stating, “We conclude that activities such as the regular commission of sexual acts in the home by unmarried people, failing and refusing to counsel the children against such conduct while acknowledging this conduct to them, allowing the children to see unmarried persons known by the children to be sexual partners in bed together, keeping admittedly improper sexual material in the home…support the trial court’s findings of ‘improper influences’ which are ‘detrimental to the best interest and welfare of the two minor children.’” Id. at 627, 904.

The Court went further to say, “Nor does this Court hold that the mere homosexual status of a parent is sufficient, taken alone, to support denying such parent custody of his or her child or children.”

Despite the Court’s assertion, it is clear from the ruling that leading an openly homosexual lifestyle can be fodder for the court in determining custody between two parents. Those in the gay and lesbian community did not see Pulliam as a step forward in the rights of homosexuals, and many commentators believe that the Court of Appeals wrote the correct opinion. Many in the legal community feel that if the same set of facts had been applied to a heterosexual couple, then the outcome would have been dramatically different.

If you find yourself questioning your spouse’s lifestyle choices, or find that your own lifestyle is being questioned, it may be necessary to meet with a family law attorney in your area to understand the implications it may have on the custody of your child. The family law offices of Gailor, Wallis & Hunt, PLLC in Raleigh, North Carolina are openly accepting of all clients, regardless of their sexual orientation.

Contributor: Rebecca F. Redwine. Rebecca Redwine is a Raleigh Family Law Attorney with the North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC.

For more information contact the Raleigh, North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488, or go to www.gailorwallishunt.com

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.

This entry was posted on Wednesday, September 1st, 2010 at 4:11 pm and is filed under Child Custody, Divorce Education, News. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.