BY ARTHUR S. LEONARD | Finding that a family court judge had improperly let his disapproval of a father's homosexual "lifestyle" influence his decision to impose a travel restriction when the father has visitation with his children, the South Carolina Court of Appeals struck it down.
The ruling came in an unpublished opinion filed on December 14.
Lexington County Family Court Judge H. E. Bonnoitt, Jr., granted a divorce to Ernest and Mary West after they had lived separately for a year. Mary received custody of their two children, with Ernest granted visitation rights. Bonnoitt prohibited Ernest from traveling out of state with the children, expressing fear that Ernest might expose them to his "homosexual paramour" who lives in Florida.
A decade after the Wests' marriage, Ernest in 2002 accepted a job in Texas offered by his employer after the Columbia, South Carolina unit where he worked closed. He moved to Dallas, while Mary and their children stayed in South Carolina. Ernest later moved to Miami to take a new job, and during the course of these moves became involved in a gay relationship.
During the couple's divorce proceedings that began in 2004, however, Ernest, fearing that his new relationship would affect his contact with his children, denied the existence of what the court calls "the adulterous affair" until a week before the final divorce hearing.
The Court of Appeals noted that "the judge 'felt it necessary to impose specific restrictions related to the Husband's actions' because he did not condone Husband's alternative lifestyle. The judge acknowledged the travel restriction was an 'unusual restriction... based on the Husband's self-indulgent and deviant lifestyle' but 'necessary to protect the morality of the children.'"
Judge Bonnoitt had written, "The Husband chose an inappropriate relationship over his marriage. He admitted that he undertook a covenant with his wife and with a higher power which was broken. Based on his willingness to break this covenant and pursue an adulterous relationship... his visitation should be confined to the State of South Carolina to protect the best interest of the minor children."
Bonnoitt also expressed concern that if the children were taken out of state, Ernest would be "more likely to expose the children to a harmful situation including exposure to his paramour who lives out of state."
On appeal, however, the court found there was no evidence "that Husband's conduct endangered or adversely affected the welfare of the children." The guardian ad litem appointed to represent the children's interest during the divorce had "expressed concern with Husband's lack of candor concerning his sexuality," but she "found no evidence Husband had the children around any paramour or subjected the children to an alternative lifestyle."
Indeed, Ernest testified that he had no intention of introducing his children to his gay partner.
The appellate court concluded, "Absent any evidence that Husband's adulterous conduct endangered or adversely impacted the welfare of his children, we hold the judge impermissibly penalized Husband for his conduct and that it is not in the best interests of the children to uphold the travel restriction.