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Lesbian Regains Custody of Son After Legal Battle : Family: Mother had been ruled unfit because of her relationship with another woman. Appeals court decision is hailed by gay-rights advocates.

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TIMES STAFF WRITER

A Virginia mother whose young son was taken away last year because she lives with another lesbian regained custody Tuesday in a closely watched gay-rights legal battle.

“The fact that a parent is homosexual does not per se render a parent unfit to have custody of his or her child,” a Virginia appeals court declared.

Last September, a Henrico County judge shocked gay-rights activists by taking 2-year old Tyler from Sharon Bottoms, 24, and putting him in the care of her mother, Kay Bottoms. Judge Buford M. Parsons Jr. said that, because sodomy is “immoral (and) illegal” under state law, the mother’s lesbian relationship made her unfit to raise her child.

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Had that reasoning been adopted widely, gay parents would have been in danger of losing their children in the many states that continue to deem same-sex relationships as illegal.

But on Tuesday, the appeals court called the judge’s order a mistake and said that homosexuality does not strip a mother of her “natural and legal right” to raise her child.

“The parent’s right to the custody and companionship of the child should only be disrupted if there are compelling reasons to do so,” the state court said. There was no evidence that Sharon Bottoms had “abused or neglected her son” or that her lesbian relationship had “a deleterious effect” on the child, the court said.

Gay-rights lawyers said they were delighted with the reversal. “This sends a strong message that, just because a woman is a lesbian, it does not make her an unfit mother,” said Paula Brantner, interim legal director for the National Center for Lesbian Rights in San Francisco.

But a leader of a group that espouses family values said the ruling may hurt the child.

“This is a very unfortunate ruling because it sends a false message that male and female roles are insignificant,” said Kristi Hamrick of the Family Research Council in Washington. “This young boy could be damaged without an effective male role model.”

In the last year, the case put a spotlight on a growing number of custody disputes where homosexuality was an issue. The Virginia ruling was unusual in that the child was awarded to a third party: his grandmother.

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State courts are split on whether homosexuality is an important factor or no factor at all in deciding whether it is in the “best interest of the child” to stay with a parent. The U.S. Supreme Court has not ruled directly whether discrimination because of sexual orientation violates the Constitution’s guarantee of equal protection of the law.

“The cases are all over the map,” Brantner said. “In Missouri and Virginia, for example, the rule has been if you are gay, you lose your child. In California, it is pretty well established that sexual orientation is not a basis for taking away custody of a child, except where there is evidence of parental unfitness.”

Lawyers on both sides of the Virginia case have conceded that it is a messy dispute involving several “imperfect people.”

Sharon Bottoms married in 1989 and soon got pregnant, but her husband left and has refused to pay child support. She has worked part time as a grocery clerk and also has been on welfare. During the custody battle, she alleged that her mother’s live-in boyfriend had sexually abused her for years.

Since 1992, she has lived in a lesbian relationship with April Wade, a 27-year-old food service worker.

During the court hearing, Kay Bottoms said that she sought care of Tyler because the child was not being cared for and was often left at her home. The trial judge also noted that Tyler referred to Wade as “Da Da.”

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On Tuesday, the appeals court said that the evidence showed that Sharon Bottoms “is and has been a fit and nurturing parent.” Absent “specific proof” of a problem, homosexuality cannot be assumed to have a bad effect on the child, the court said.

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