Delong v. Delong

Missouri Court of Appeals, Western District

1998 WL 15536

January 20, 1998

ULRICH, Chief Judge, Presiding Judge.

Janice Ann DeLong (Mother) appeals from the judgment of dissolution entered by the trial court dissolving her marriage to Fredrick Joseph DeLong III (Father), awarding custody and visitation of the parties' three minor children, and distributing property. She claims the trial court erred in (1) awarding sole custody of the parties' children to Father and (2) restricting her visitation with the children and ordering her to inform them that "she is homosexual." She contends that the trial court's custody decision was improperly based solely on her "sexual orientation."

The judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

FACTS

Mother and Father were married in June 1985. At the time of the wedding, Mother was 24 years old and beginning her career as a school teacher. Father was 36 years old and a full-time attorney with his own practice. Father was the primary custodian of a son, Joseph DeLong IV, born of a previous marriage.

As a condition of the marriage, Father asked Mother to submit to a psychological evaluation by his psychologist. The stated purpose of the evaluation was to test the parties' compatibility for marriage. During a meeting with the psychologist, Mother revealed that she was sexually attracted to both men and women and that she had engaged in sexual activity with women in the past. Despite these revelations, and based on Mother's expressed commitment to a monogamous relationship, Father was satisfied with Mother's psychological profile.

Three minor children were born of the union: Morgan, born May 25, 1986, Kelsey, born February 23, 1988, and Chase, born April 6, 1990. Mother primarily stayed at home to care for Joseph, who is Father's son, and the three younger children.

In March 1994, Mother filed a petition for dissolution of marriage in Boone County requesting that her marriage to Father be dissolved, that joint legal custody of the minor children be awarded to her and Father, and that she be designated the primary physical custodian of the children.

Father filed an answer to the petition and his cross-petition for dissolution of marriage. He requested the court to dissolve his marriage to Mother and award sole custody of the children to him with restricted visitation to Mother. He alleged that Mother had "entered significant, intense, open and blatant lesbian relationships since the parties' children were born" and that "the best interest and welfare of the children will be served by their care, custody and control being granted to [Father]."

At trial, the parties introduced evidence regarding their parental skills and their relationship with the children. Both parties presented custody evaluation reports prepared by psychologists and psychiatrists recommending custody awards.

Evidence was also presented that Mother engaged in homosexual conduct and involved herself in extramarital affairs with women during the marriage. She admitted to two sexual relationships and another brief nonsexual relationship with women beginning in 1991 after concluding that her marriage was irreparable. She also testified to having engaged in sexual conduct with another woman after she and Father separated. Mother testified that all of her sexual encounters were discreet and that the children did not know of the nature of the relationships, although they knew the women as friends of their mother. Father testified that he also had an extramarital sexual relationship with a woman after separation.

The trial court entered its decree of dissolution in April 1996 dissolving the DeLongs' marriage and awarding sole custody of the three minor children to Father. It found that joint custody would not be appropriate and that the children's best interests would be met if they were in their father's custody. In making these findings, the court cited Mother's engagement "in a promiscuous series of four homosexual affairs," her repeated denial and concealment of "her adulterous lesbian activity," her intention to continue "exposing her lesbian lovers to her children," and her "immaturity in seeking after repeated new love relationships." The trial court also restricted Mother's visitation with the children by ordering her to "keep any and all aspects of the homosexual lifestyle away from the minor children during the children's periods of visitation with her." The court ordered that during visitation, none of the following people shall be in the children's presence:

a. Any person known by [Mother] to be lesbian or known by [Mother] to be one who engages in lesbian sexual activity except Diane Light, a long time friend of the children.

b. Any other female, unrelated by blood or marriage, with whom [Mother] may be living.

The trial court further directed the guardian ad litem to monitor a "telling" session wherein Mother was to tell the two older children that "she is homosexual."

CHILD CUSTODY AND VISITATION

On appeal, Mother claims that the trial court erred in awarding sole custody of the three minor children to Father, conditioning and restricting her visitation rights, and ordering her to inform the older children "she is homosexual." Mother claims that the evidence proved she was the better custodian in accordance with the best interests of the children and the statutory factors set forth in [Missouri law]. She argues that the court's rulings regarding custody and visitation were not based on the best interests of the children but solely on the fact that "she is homosexual." Mother alleges that instead of a focus on the best interests of the children, "the courtroom became a battleground in which sexual orientation was the principal issue" and that Father and the guardian ad litem became obsessed with dissecting her sexual life, "uncovering every detail of any kiss, touch or other intimate contact she may have engaged in with a member of the same sex."

Parents have a fundamental liberty interest in the care, custody and management of their child. Santosky v. Kramer, 455 U.S. 745, 753 (1982); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The Supreme Court has long recognized this liberty interest "as essential to the orderly pursuit of happiness by free men." Meyer, supra. The Court has explained that the parents' "desire for and right to the companionship, care, custody and management of [their] child is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection'." Lassiter v. Dept. of Soc. Serv., 452 U.S. 18, 27 (1981)(quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)).

The liberty interest of parents in maintaining a relationship with their child is also appreciated by the states. The Utah Supreme Court has described the right as "transcend[ing] all property and economic rights [and as] rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct." In re J.P., 648 P.2d 1364, 1373 (Utah 1982). In Missouri, the parent/child relationship has been labeled "sacred." Jonathan H. v. Margaret H., 771 S.W.2d 111, 114 (Mo.App.1989).

As such, a state will not interfere with the relationship between parents and a child unless the child is in need of care or protection. A child, however, comes under the jurisdiction of the court upon the filing of an action for dissolution pursuant to [Missouri statute], and the court, exercising the authority of the state, protects the interests of the child. C.J.(S.)R. v. G.D.S., 701 S.W.2d 165, 169 (Mo.App.1985).

In Missouri, a court determines custody in a dissolution action in accordance with the best interests of the child. "[The best interests of the child] is not a factor which itself is placed on the legal balance scales but rather it is the single standard by which all relevant factors are to be measured." In re Marriage of Hayden, 588 S.W.2d 165, 167 (Mo.App.1979).

In awarding custody, the trial court is presumed motivated by the best interests of the child. Hack v. Hack, 695 S.W.2d 498, 500 (Mo.App.1985). Deference is given to the trial court's assessment of what serves the child's best interests, and, unless an appellate court is convinced that the child's welfare requires some other disposition, the trial court's custody decision will be affirmed. McDowell v. McDowell, 670 S.W.2d 518, 521 (Mo.App.1984). Thus, the trial court's decision will be upheld on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Guier v. Guier, 918 S.W.2d 940, 946 (Mo.App.1996).

In determining the best interests of the child, the court shall consider all relevant factors including those prescribed in section 452.375.2:

(1) The wishes of the child's parents as to his custody;

(2) The wishes of the child as to his custody;

(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to his home, school, and community;

(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved ...;

(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

(7) The intention of either parent to relocate his residence outside the state; and

(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.

The statutory factors are not exclusive and must be considered with all other relevant factors. V.M. v. L.M., 526 S.W.2d 947, 949 (Mo.App.1975).

Missouri courts generally deem a good environment and stable home the single most important, relevant consideration in custody matters. D.K.L. v. L.C.L., 764 S.W.2d 664, 666-667 (Mo.App.1988); M. v. M., 688 S.W.2d 384, 386 (Mo.App.1985). Thus, the character, conduct, behavior, morals, and mode of life of the parents are proper considerations for a trial court in awarding custody. Wilmesherr v. Wilmesherr, 708 S.W.2d 823, 824 (Mo.App.1986); Hack, supra. "While no court can force a parent to observe any particular moral code, the moral fitness of a person seeking custody of a child is a proper subject for the court's consideration." Brotherton v. Lowe, 819 S.W.2d 74, 77 (Mo.App.1991)(quoting M.L.G. v. J.E.G., 671 S.W.2d 312, 315 (Mo.App.1984)). In T.C.H. v. K.M.H., 693 S.W.2d 802, 804-805 (Mo. banc 1985), the Missouri Supreme Court recognized the importance of the trial court's considering the sexual conduct or behavior of a parent for the protection of the children and for the sake of public policy.

A custody award should not be a reward or punishment of either parent; custody of a minor child is made in the best interests of the child. T.B.G. v. C.A.G., 772 S.W.2d 653, 654-655 (Mo. banc 1989). The issue is not condemnation or approval of a parent's behavior or a moral standard but whether the conduct in question is detrimental to the child's welfare. Fastnacht v. Fastnacht, 616 S.W.2d 98, 100 (Mo.App.1981). A parent's behavior, therefore, must affect the child's welfare before it is relevant in a custody dispute. Shoemaker v. Shoemaker, 812 S.W.2d 250, 255 (Mo.App.1991). Adultery, promiscuity, or sexual misconduct, while generally condemned by courts, is insufficient, standing alone, to deem a parent an unfit custodian of the parent's child if unaccompanied by evidence that the conduct adversely affected the child. Fastnacht, supra. In accordance with the best interests of the child standard, "the trial court must decide the factual issue of the 'effect of the misconduct on the child which is an inference to be drawn from the whole record in most instances.'" T.C.H., supra (quoting Robertson v. Robertson, 630 S.W.2d 266, 267 (Mo.App.1982)). A parent's sexual or moral conduct warrants consideration in a custody proceeding, therefore, only where it affects directly the mental, physical, economic or social well-being of the child. Humphrey v. Humphrey, 888 S.W.2d 342, 346 (Mo.App. E.D.1994).

Considerations in a custody dispute of a parent's moral or sexual activities are not limited to conduct that has detrimentally affected the child. M. v. M., supra. Evidence that a parent's conduct may be expected to have an adverse effect on the child is also considered. Fastnacht, supra. Likewise, evidence that a parent's inappropriate conduct may inspire by example or foster by condonation must be considered. D.K.L., supra.

Despite the best interests of the child standard, which requires a fact-based assessment of all factors relevant to the child's welfare, Missouri courts appear to apply a "per se rule" in awarding custody where one parent is homosexual. The per se rule establishes an irrefutable presumption that a parent who engages in homosexual behavior is unfit to be custodian of his or her child. See Juliet A. Cox, Comment, “Judicial Enforcement of Moral Imperatives: Is the Best Interest of the Child Being Sacrificed to Maintain Societal Homogeneity?,” 59 Mo.L.Rev. 775, 792 (1994). Without assessing the fitness of the parent who engages in homosexual conduct, the possible unfitness of the parent who does not engage in homosexual conduct, the relationship between each parent and the child, the effect of homosexual conduct on the child, or any other factor relevant to the child's welfare, Missouri courts presume that "placing primary custody of a minor child with the nonhomosexual parent is in the best interests of the child." S.L.H. v. D.B.H., 745 S.W.2d 848, 849 (Mo.App. E.D.1988).

Since 1980, Missouri appellate courts have decided seven cases involving homosexual conduct and child custody and visitation. See T.C.H. v. K.M.H., 784 S.W.2d 281 (Mo.App. E.D.1989); J.P. v. P.W., 772 S.W.2d 786 (Mo.App. S.D.1989); G.A. v. D.A., 745 S.W.2d 726 (Mo.App. W.D.1987); S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo.App. E.D.1987); J.L.P.(H.) v. D.J.P., 643 S.W.2d 865 (Mo.App. W.D.1982); L. v. D., 630 S.W.2d 240 (Mo.App. S.D.1982); N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo.App. W.D.1980). In all cases, the trial court's award of custody to the heterosexual parent and restrictions on the homosexual parent's visitation rights have been upheld. The "judicial policy in this state [seems] to conclusively presume the detrimental impact on a child from the parent's homosexuality." G.A. v. D.A., 745 S.W.2d 726, 728 (Mo.App. W.D.1987)(Lowenstein, J., dissenting). With little or no consideration of any other factors relevant to a child's best interests, including the fitness of the heterosexual parent to be custodian, Missouri courts seem to have consistently relied on a presumed detrimental impact of homosexuality on a child to sustain custody awards to the nonhomosexual parent.

Beginning in 1980 with the case, N.K.M. v. L.E.M., 606 S.W.2d 179 (Mo.App. W.D.1980), the Western District upheld a trial court's change of custody from the mother to the father based on the mother's homosexual relationship with another woman and the woman's harmful influence on the child. The mother presented psychiatric evidence that the child was "normal and well adjusted" and showed "no ill effects from her present environment" with her mother. The court, however, dismissed this evidence as a credibility question for the trier of fact and presumed a future detrimental impact on the child from exposure to the mother's paramour, asserting that the child "may thereby be condemned, in one degree or another, to sexual disorientation, to social ostracism, contempt and unhappiness." It further added that it "does not need to wait [ ] till the damage is done." The father's fitness or unfitness to be the custodian of the child was not mentioned by the court. Although the court recited the best interests of the child standard as "the over-arching principle by which courts are to be guided in child custody cases," the court effectively denied the mother custody solely on the basis of an absolute presumption of detriment resulting from contact with the mother's paramour.

Two years later, in L. v. D., 630 S.W.2d 240 (Mo.App. S.D.1982), the Southern District sustained the denial of a mother's request for change of custody and restrictions placed on her visitation with her children because she had engaged in, and at the time of the hearing, was engaged in a homosexual affair. The mother asked the court to reject the irrefutable presumption that a homosexual parent is an unfit parent and presented evidence from social psychologists, clinical psychologists, and various journals and articles suggesting that the children would not be adversely affected by living with her and her lover. The court upheld the trial court's finding that the mother's evidence was not credible and stated that the mother's personal conduct "could well have an effect on children" during their formative years and that "we cannot ignore the influence her conduct may well have upon the future of [the children]." Citing N.K.M., the court effectively presumed future detriment to the children from the mother's homosexual conduct and denied mother custody with only a cursory statement regarding the suitability of the father's home.

In J.L.P. v. D.J.P., 643 S.W.2d 865 (Mo.App. W.D.1982), this court affirmed the trial court's order specifying scheduled visitation rights of a father who admitted numerous homosexual relationships following dissolution of his marriage, denying his overnight visitation privileges, and limiting his visitation rights by prohibiting him from taking the child to gay activist social gatherings. The father introduced the testimony of two psychologists that the child did not suffer any psychological damage from his association with his father at that time. The mother did not offer expert opinions regarding any adverse effect the father's homosexuality had or may have on the child. On appeal, the father argued that the record did not support the factual findings of the trial court.

This court found that the trial court was not required to accept the uncontradicted opinions of the father's experts. Instead, it sustained the trial court's factual inferences, drawn from the father's testimony advocating a homosexual lifestyle and from the mother's testimony regarding her beliefs that the child was adversely affected by visitation with his father, that the potential for physical and emotional harm existed if the restrictions on the father's visitation were not imposed. The court presumed, "the father's acknowledgment that he was living with an avowed homosexual certainly augurs for potential harm to the child that the trial court was perfectly competent to assess."

Five years later, in S.E.G. v. R.A.G., 735 S.W.2d 164 (Mo.App. E.D.1987), a mother appealed from the trial court's order awarding primary custody of the parties' four minor children to the father and restricting her visitation with the children. Custody was originally granted to the mother; however, the order was amended to award custody to the father when new evidence was uncovered that the mother was involved in a homosexual relationship with a woman who resided in St. Louis and drove to the mother's home several times a week. The two women were open about their relationship with each other to mother's children and to the community.

In affirming the change of custody, the Eastern District presumed that the moral growth and best interests of the children would be better protected in the custody of their father. The court did not refer to specific evidence of the harm the mother's homosexuality had or may have on the children. Instead, the court explained, "Union, Missouri is a small, conservative community with a population of about 5,500. Homosexuality is not openly accepted or widespread. We wish to protect the children from peer pressure, teasing, and possible ostracizing they may encounter as a result of the 'alternative life style' their mother has chosen." The fitness of the father to be the children's custodian was discussed by the court only to the extent that the mother claimed error in the trial court's findings of fact. Although the Eastern District espoused the best interests of the child standard in upholding the trial court's custody award, it primarily focused on the mother's homosexual relationship with her lover. The court presumed detrimental impact on the children.

Relying on S.E.G., the Western District decided G.A. v. D.A., 745 S.W.2d 726 (Mo.App. W.D.1987), the same year. In G.A., the trial court granted custody of the parties' minor son to the father stating that the mother's acknowledged homosexuality tipped the scales in favor of the father. This court affirmed the trial court's order speculating, without evidentiary support, that "the environment into which [the child] would be thrust by granting custody to [the mother] would not be a healthy one."

In a dissenting opinion, Judge Lowenstein criticized the majority's apparent application of the per se rule asserting that the decision on the welfare of the child based solely on the mother's sexual preference was made on less than complete information and was, therefore, suspect. He stated, "If there has been any doubt as to the issue of homosexuality being an absolute or conclusive presumption of detriment, the result in this case on these facts dispels that doubt." Judge Lowenstein then recited the following facts of the case and concluded:

The mother provides the child with his own room in a well kept house, enrolls him in a pre-school, has a steady nursing job, cares about the child, and, despite sleeping with and occasionally hugging a woman, has stated under oath she would discourage her son from emulating her sexual preference. The father has limited education, an income of $6500 and lives in basically a one room cabin containing a toilet surrounded by a curtain; the child sleeps in a foldup cot by a woodstove and plays in an area littered with Busch beer cans, collected by the father's "slow" sister, who was ordered by the trial court not to care for the boy while alone. The 75 year old paternal grandmother helps care for the little boy.

To say it is in the best interests of this little boy to put him in the sole custody of the father, who was pictured leering at a girly magazine, solely on the basis of the mother's sexual preference, would be and is a mistake.

In child custody cases where one parent engages in homosexual conduct, Judge Lowenstein encouraged courts to use complete information instead of presuming that the homosexual conduct of a parent is conclusively detrimental to the child, effectively eliminating any additional evidence about the best environment available for the child.

In 1989, the Southern District decided J.P. v. P.W., 772 S.W.2d 786 (Mo.App. S.D.1989). In J.P., the mother sought to modify the child custody decree by restricting the father's visitation with the parties' minor daughter. The father was engaged in a homosexual relationship, residing with his lover. Following a hearing on the motion, the trial court restricted the father's visitation by ordering that "neither the [father's] present lover nor any other male with whom the [father] may be residing shall be in the child's presence or in the [father's] home during such visits." The mother and father both appealed.

The Southern District found that modification of the custody decree was warranted but that the modification made by the trial court did not sufficiently restrict the father's visitation. It found that "unrestrictive visitation by the father would endanger the child's mental health and emotional development" and that visitation by the father "must be super vised visitation in the presence of a responsible adult." In making these findings, the court presumed that "the child's physical or emotional welfare is threatened by the activities and conduct of the father" (quoting J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 869 (Mo.App.1982)). It recognized that other states hold that homosexual behavior of a parent is a basis for restricting or denying visitation only when it has adversely affected or is likely to affect the child in question. Nevertheless, it noted that Missouri law presumes a detrimental impact to a child from a parent's homosexual conduct and that expert testimony is not a necessary basis for a determination that exposure to a homosexual influence will adversely affect a child (citing N.K.M. v. L.E.M., 606 S.W.2d 179, 186 (Mo.App.1980) and J.L.P.(H.) v. D.J.P., 643 S.W.2d 865, 869 (Mo.App.1982)).

In a dissenting opinion, Judge Prewitt disagreed with the majority's application of the per se rule stating, "As I read the majority opinion, no homosexual parent should ever have unsupervised custody of his child even for a relatively short period. This is the type of generalization that courts should not make, although that appears to occur in this type of custody matter." Asserting that the father's visitation should not be restricted to supervised sessions, Judge Prewitt observed that no evidence was presented indicating physical or emotional harm to the child presently or in the future. The dissent concluded that "[e]ach custody case, whether a parent is homosexual, is different and should be determined on its own facts."

The latest case to be decided in Missouri involving homosexuality and child custody was T.C.H. v. K.M.H., 784 S.W.2d 281 (Mo.App. E.D.1989). In T.C.H., the mother appealed the trial court's award of primary custody of the parties' two minor children to the father claiming that it was not based on substantial evidence. The trial court found "that the [mother's homosexual] relationship is having an ill-effect on the morality of the children and will continue to effect [sic] their well-being in the future."

In upholding the trial court's award, the Eastern District first appeared to apply a "nexus" test that allows consideration of a parent's homosexual conduct as just one factor in the overall determination of custody if evidence is presented that the parent's sexual activity is or may be harmful to the child. The court outlined evidence presented by the father, including the testimony of experts, demonstrating the negative impact on the children of mother's custody. The court described specific activities in which the mother engaged in the presence of or with the knowledge of the children and recounted specific occurrences involving the nine-year-old son and his familiarity with homosexual sex. In addition, the court extensively examined the father's fitness to be custodian.

The court, however, then seemed to apply the per se rule in discussing the potential for future harm facing the children if placed in the mother's custody. It recognized, as authoritative, Missouri case law that stated a parent's homosexual conduct "can never be kept private enough to be a neutral factor in the development of a child's values and character" (quoting G.A. v. D.A., 745 S.W.2d 726, 728 (Mo.App.1987)). Without specifying evidence presented at trial, the court stated that it could not ignore the effect the mother's sexual conduct may have on the children's moral development.

In all previous Missouri cases, a trial court's award of custody to the nonhomosexual parent or restriction on the homosexual parent's visitation was upheld on appeal ostensibly based on supposition that the parent's homosexual conduct might have a negative impact on the child. In each case, the appellate court presumed that being raised by a homosexual parent was not in the child's best interest despite a lack of substantial evidence to support the conclusion and frequently without substantial evidence of the environment presented for the child by the heterosexual parent.

To the extent that Missouri case law automatically presumes that a homosexual parent is per se unfit to be custodian of his or her child, it is not followed in this case. Such an irrefutable presumption, where a parent's homosexual conduct is, alone, determinative, is inherently inconsistent with the best interests of the child standard, which requires consideration of all factors relevant to the child's welfare. In fact, focusing a custody determination on a parent's homosexual conduct, alone, may permit a decision contrary to the best interests of the child in a case where the characteristics of the heterosexual parent are undesirable or possibly harmful. A per se approach necessarily ignores the heterosexual parent's fitness to be custodian, and the application of this approach could conceivably result in an award of custody to the heterosexual parent without any evidence regarding his or her inappropriate heterosexual conduct or parenting skills.

Accordingly, a nexus approach is adopted in custody cases involving the issue of a parent's sexual conduct. Under this approach, a connection, or nexus, between a parent's sexual conduct, homosexual or heterosexual, and harm to the child must be established before the parent's sexual conduct is considered relevant to the custody determination. The relevant issue under this approach is not the nature of the parent's sexual activity but whether that activity adversely affects the child. Application of a nexus approach in these cases is consistent with the best interests of the child standard and the general principle that a parent's sexual or moral behavior is relevant in a custody case only if it adversely affects the child's welfare. As required by the best interests of the child standard, a nexus approach mandates an individualized, fact-based assessment of all factors relevant to a child's welfare, including a parent's homosexual conduct if it is shown to impact the child.

As with any other sexual or moral conduct of a parent, if a parent's homosexual conduct is shown to detrimentally affect the mental, physical, economic or social well-being of a child, it is a proper consideration for the court in a custody proceeding. Whether or how a homosexual parent's behavior or activities affect a child is a factual issue to be considered and resolved on specific evidence presented at trial. A.C. v. C.B., 113 N.M. 581 (N.M.App.1992).

Generalizations regarding the possible impact a parent's sexual conduct outside the presence of a child may have on a child are impermissible. S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985). Likewise, the disapproval of morals or other personal characteristics, without evidence of how the morals or characteristics adversely impact the child, should not be used to determine the fitness of a parent to care for a child. State ex rel. Human Services Dept., 107 N.M. 769 (N.M.App.1988). "The State may not deprive parents of custody of their children 'simply because their households fail to meet the ideals approved by the community ... [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average'." Bezio v. Patenaude, 381 Mass. 563 (Mass.1980) (quoting Custody of a Minor, 378 Mass. 712 (1979)). Pronouncement of a nexus approach is not a comment on whether homosexuality is condoned by this court or community. Rather, it is meant to reconcile custody determinations involving a homosexual parent with the best interests of the child standard. Thus, to the extent that the homosexual behavior of a parent can be shown by evidence presented at trial to adversely impact a child, it is relevant in a custody proceeding and should be considered as one of all relevant factors.

In the present case, the trial court focused primarily on Mother's homosexual conduct in awarding custody of the children to Father. While evidence was presented regarding the nature of Mother's sexual conduct, no evidence was introduced regarding whether or how it affects the children. The children were unaware of Mother's sexual preference, and Mother never engaged in any sexual or affectionate behavior in the presence of the children. The trial court's order did not include findings that Mother's homosexual conduct harmed or may harm the children. Citing J.P. v. P.W., 772 S.W.2d 786 (Mo.App.1989), the trial court concluded that Mother's restricted visitation was "designed to keep the negative influence of homosexuality away from the children." No evidence was presented to support the negative influence of Mother's homosexual conduct.

Although the trial court cited the best interests of the child standard and discussed Father's fitness to be custodian, the court's reliance on Mother's homosexual conduct, absent evidence of the impact such conduct had or may have on the children, was controlling. The order is devoid of discussion of the detrimental effects Mother's homosexual conduct is causing the children now or that can reasonably be anticipated in the future. The trial court, therefore, misapplied the law in awarding custody and restricting visitation based on Mother's homosexual conduct absent evidence of its impact on the children. Accordingly, the custody and visitation award is reversed, and the case is remanded to the trial court for the reception of additional evidence, if any, regarding the effect Mother's homosexual conduct has or may have on the children and for consideration of all factors relevant to the children's welfare.

The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.