Ruling Restricting Gay Father’s Right to Visit Son Struck Down

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 in Santa Ana, dissolved a Superior Court order that forbade Greg A. Birdsall from exercising his visitation rights with his son, Shaun, in the presence of any person “known to be homosexual.”

The order had effectively 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 former husband in 1985, when he openly acknowledged 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.”

While there have been numerous decisions favoring gay rights in custody cases, 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 cases in the last two years have led to a “virtually even split” among the states on the question.

“The decision simply says there’s got to be evidence of harm to the child,” said John A. Greenleaf, a Los Angeles lawyer who represented Greg Birdsall. “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.”

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.”

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

“The unconventional life style of one parent, or the opposing moral positions of the parties, or the outright condemnation of one parent’s beliefs by the other parent’s religion, which may result in confusion for the child, do not provide adequate basis for restricting visitation rights,” Sonenshine wrote.