Nature of the Case
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Facts
H and W were divorced. Under the divorce decree, they agreed to share joint custody of the children, with W being the primary custodial parent. H agreed to pay $591 biweekly in child support. In May 2000, a friend of W's, Kellie Tabora, who was an admitted lesbian, moved into her home and began paying her $500 a month for living expenses. A little over a year later, H filed a petition to modify the divorce decree. In his petition, he alleged that there had been a change in circumstances warranting a custodial change for the two boys because W's living conditions were not in the best interest of the children. W stated that she was not a lesbian, that she thought homosexuality was wrong, and that she and Kellie did not have a sexual relationship. Kellie and W did admit to sleeping in the same bed from time to time. After H filed his petition in May 2001, Kellie slept in a separate bed in a separate room. It was established that H was a good father and W was a good mother and that there was nothing wrong with the boys. H testified that he planned to marry his girlfriend, Lynelle Crotty and that she and others would assist him in caring for the boys, should he be awarded custody. H told the circuit court that he believed that one boy knew what 'gay' meant and what a 'lesbian' is and that he did not want to wait until it was 'too late' to do something about the situation. He said that in his opinion, he could provide a 'more . . . normal home life and social life than W' could. W presented testimony from both boys' elementary school teachers that they were well-adjusted and enjoyable children. W added that if the court was concerned about Kellie and her continued presence in the home, she would ask Kellie to move from her home in order to retain custody. The court stated that it had considered both H's financial ability and education in making the decision to change custody. The court found from the circumstances of the expressed sexual preference of Kelli Tabora and the fact that she and W slept together for approximately one year requires the conclusion that sex occurs. But if the testimony of W and Kelli Tabora is accepted as the truth what is present here is that no actual inappropriate behavior but rather the appearance of inappropriate behavior exists. Is that harmful enough to require removal of these children from that environment? The general public would assume that W is a lesbian and make the children subject to ridicule and embarrassment. H was granted custody. The court restricted W's visitation rights with the boys to overnight visits when Kellie Tabora was not spending the night with her. W appealed.
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