Visitation Curbs on Gay Father Are Reversed by Court

Restrictions on a homosexual father’s right to visit his 9-year-old son were struck down by a state appellate court Thursday, breaking new legal ground in California.

In a ruling that emphasized a child’s welfare over a parent’s sexual preference, the court ruled that a parent could not be barred from visiting his child in the presence of other homosexuals without evidence of harm to the child.

The decision, written by Justice Sheila Prell Sonenshine of the 4th District Court of Appeal, dissolved a Superior Court order that had forbidden Greg A. Birdsall from exercising his visitation rights with his son, Shaun, in the presence of any person “known to be homosexual.”

The order effectively had prevented the father from spending his one weekend a month and one evening per week with his son at his own Irvine home, which he shares with two other gay men.

In its ruling, the appellate court rejected claims by the mother, Linda Birdsall, a Jehovah’s Witness who testified that she followed church doctrine in teaching Shaun that homosexuality is morally wrong. Her church excommunicated her ex-husband in 1985, when he openly avowed his homosexuality.

Neither Greg Birdsall nor his ex-wife could be reached for comment Thursday.

But Linda Birdsall’s attorney, Joseph A. Shuff, said he will recommend an appeal.

“We have never sought to restrict the father’s visitation with the son,” Shuff said. “It’s only those people with whom he associates which we feel is not in the best interest of the child.”

Other Gay Rights Cases

Under state law dating from 1967, a parent may not be denied custody solely on the grounds of homosexuality, and there have been numerous court decisions favoring gay rights in custody cases.

But in the unanimous ruling issued Thursday, Sonenshine noted that California appellate courts “have not directly addressed homosexual parents’ visitation rights.” According to a 1985 survey, courts in only two states, North Carolina and Oregon, have voided such restrictions.

“The case is important to California, and it’s important to the nation,” said Carol Sobel, a staff lawyer with the American Civil Liberties Union in Los Angeles.

Sobel said recent cases in the last two years have led to a “virtually even split” among the states on the question.

“The issue has become more critical as people have become more willing to become open about their sexuality,” said Sobel, a lawyer in the case last year of Brian Batey, the San Diego teen-ager whose custody a judge transferred from his mother to his late father’s homosexual lover in Palm Springs.

“People are much more open about this issue, and they’re willing to litigate it more,” Sobel said.

But Shuff said Thursday that most other states that have considered the question have approved restrictions similar to those in the Birdsall case.

‘Evidence of Harm’

Greg Birdsall’s attorney, John A. Greenleaf of Los Angeles, said Thursday’s decision “simply says there’s got to be evidence of harm to the child.”

“In this case there was no evidence. The mother said she was a Jehovah’s Witness and (that) the Jehovah’s Witnesses believe homosexuality is morally wrong, and she didn’t want her son exposed to it,” Greenleaf said.

Last year, Linda Birdsall testified in Orange County Superior Court that when her son returned from visits to his father, he was “hyper,” “insolent,” and “depressed.” She testified that she would have no objection if her ex-husband were living with two female roommates.

In issuing restrictions on the father’s visitation rights, Superior Court Judge Theodore Millard concluded that Shaun’s “exposure to these completely opposite life styles by the child’s role models” could “impair the child’s emotional development.”

Shuff said Thursday that testimony at the hearing showed that Greg Birdsall’s two roommates had lovers who would come to the house. “So you’d have four or five men in the apartment at one time. The court can’t control the conduct of those others, but it can control Mr. Birdsall,” he said.

The father’s “desire for unrestricted visitation” should not outweigh “the harm that could be done to the child by visitation,” Shuff said.

But Justice Sonenshine found insufficient evidence of detriment to the child to support the restriction.

Greenleaf called the decision an important one for gays in Orange County.

“In Los Angeles County, I don’t think it has been a real problem,” Greenleaf said. “The judges are pretty open-minded. But in Orange County, it has been a problem in the past. As far as Orange County is concerned, this (ruling) really is significant.”