Two Parents Claim To Be Traditional Religious Christians, One Has Had A Gay Relationship, How Should This Effect Custodial Rights Over Their Child?

The Nebraska Court of Appeals in Hassenstab v. Hassenstab (1997) dealt with a petition by Thomas Hassenstab to modify custody of his daughter Jacqueline Hassenstab away from her mother Carol Hassenstab. The Court addressed in part what effect the father's concerns over the effect the mother's homosexuality had on their daughter and whether this should translate into a modification of custody. The two parents in the case identified themselves as Catholic. The majority of the Court noted that "the Nebraska Supreme Court has repeatedly held, albeit not in the context of a homosexual relationship, that a parent's sexual activity is insufficient to establish a material change in circumstances justifying a change in custody absent a showing that the minor child or children were exposed to such activity or were adversely affected or damaged by reason of such activity.... [A]lthough there was evidence that Carol and her partner would engage in sexual activity at times when Jacqueline was in Carol's residence and that Jacqueline was generally aware of her mother's homosexual relationship, there was no showing that the daughter was directly exposed to the sexual activity or that she was in any way harmed by the homosexual relationship between Carol and her partner... [T]he evidence does not establish that Jacqueline's best interests require a change of custody." For the majority of the Court, therefore, if a parent were to engage in lesbian acts in front of the child it would clearly be grounds for removing custody from that lesbian parent. According to the ruling it is exposure to sexual acts that gives rise to a custodial challenge, not homosexuality itself or the mere knowledge of such a relationship existing. There needs to be a showing of harm caused by the homosexual relationship or a material change of circumstances above and beyond this.

However, two other judicial opinions were filed in the case. The dissenting opinion of Judge Hannon would have modified custody in the father's favor. The judge framed the issue as clearly focusing "on the question of the effect the establishment of a homosexual relationship by a custodial parent should have upon child custody when that activity is recognized by the people involved as a serious moral wrong." The judge wrote in his opinion that "I am convinced that parents can teach their moral code to their children only by quietly living that code in front of them, not by preaching at them or sending them to be formally instructed in it. With regard to this family's moral code, Carol has obviously set a horrible example. When young people raised with a moral code similar to that which the parties to this action apparently subscribe are confronted with natural sexual yearnings, they are usually fortified by moral education and by their observation of the monogamous, heterosexual relationship of their parents. I am convinced that a child's observation of his or her parent's conduct which is at odds with the family moral code seriously affects the child's reaction to his or her sexual yearnings during the formative years. If a parent commits serious and prolonged moral indiscretions in such a way that his or her child will learn of them, it is foolish to think the moral education of that child will not be seriously damaged. I think the record shows Carol's conduct will necessarily impair Jacqueline's moral training; therefore, it is in Jacqueline's best interests that custody be modified." Judge Mues wrote a concurrence which simply wanted to make the point that it agreed with the dissenting opinion insofar as "a child's exposure to parental conduct which is at odds with the family moral code impairs that child's moral training, including his or her reactions to sexual yearnings. While I pretend no psychological expertise, common sense and experience suggest that is true. And I believe it to be true whether the conduct in question is an indiscreet heterosexual or homosexual extramarital relationship."

I think the most controversial part of this case would be the dissenting opinion that states that being raised by a parent engaging in homosexuality in violation of the family religious moral code will effect sexual yearnings of a child. However, even the concurrence says this is a matter of “common sense.” The emphasis seems to be on the confusion that will confront the child as a parent disobeys religious beliefs and that this confusion may lead to sexual yearnings being affected. But is it a matter of the conflict with the religious moral code alone, or is the implication even further that “common sense” indicates that even having a gay parent or adopted gay parents, even when not in conflict with any “family moral code,” will affect “sexual yearnings”? On this question there is a clear divergence of opinions. The American Psychological Association, which represents the conventional wisdom and the majority view today, says that “there is no basis on which to assume that a parental homosexual orientation will increase likelihood of or induce a homosexual orientation.” On the other hand there are studies from USC professors that indicate that “a greater number of young adult children raised by lesbians had participated in or considered a same-sex relationship or had an attraction to the same sex.” . A “small minority [still] maintain that being raised in a lesbian or gay household subjects children to increased risks in a number of areas.” And of course there are those that point out that all the studies are not even reliable, that more needs to be done, and that such studies often and too easily “reek of bias.”

Then again, does any of this really matter anyway to a case like Hassenstab? Is it the job of the courts in custody proceedings to protect the development of a child’s sexual yearnings to begin with? Removing custody from a mother is indeed a big deal and the evidence necessary should therefore be substantial. Therefore, this is not a case where I am deeply troubled by the outcome. However, the whole debate about whether it is custodial rights or the subjective religious beliefs of both parents that is of a higher value in such decisions is rather interesting. Though I think subjective religious beliefs of both parents are important and should be recognized as such, it does seem hard to imagine courts in a sense enforcing those subjective religious beliefs by choosing the environment to raise a child that is most conducive to that end.

IF YOU HAVE ANY THOUGHTS, FEEL FREE TO LEAVE A COMMENT
Tweet