Marriage of Cabalquinto

Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division OneApr 28, 1986
43 Wn. App. 518 (Wash. Ct. App. 1986)
43 Wn. App. 518718 P.2d 7

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No. 16012-5-I.

April 28, 1986.

[1] Juveniles — Visitation Rights — Homosexuality of Parent — Presence of Companion in House. When a child visits his parent's house which his parent shares with a homosexual companion, the fact that the companion lives in the house and maintains more than a casual relationship with the parent need not be concealed from the child absent a showing under RCW 26.09.240 that the visitation would endanger the child's physical, mental, or emotional health.

Nature of Action: A homosexual father sought authorization for his son to visit him in his house. The Supreme Court at 100 Wn.2d 325 reversed the trial court's denial of visitation and remanded the case for further consideration.

Superior Court: The Superior Court for King County, No. 80-3-05897-9, Charles R. Denney, J. Pro Tem., on March 1, 1984, authorized the visitation provided the father's homosexual companion was not present in the house except as a casual friend.

Court of Appeals: Holding that the record did not support a finding that knowledge of the father's homosexual relationship would endanger the child's health, the court vacates that portion of the visitation order restricting the presence of the homosexual companion in the father's house.

Mary Alice Theiler and Gibbs, Douglas, Theiler Drachler, for appellant.

Robert J. Conklin, for respondent.

Elizabeth Thomas on behalf of the American Civil Liberties Union, amicus curiae.

This appeal is a sequel to In re Marriage of Cabalquinto, 100 Wn.2d 325, 669 P.2d 886 (1983). At the hearing under review in that appeal, the trial court had determined the father to be a kind, loving person, exemplary in every way except that he lived with another male in a homosexual relationship. The Supreme Court said:

homosexuality in and of itself is not a bar to custody or to reasonable rights of visitation. . . .

. . . Visitation rights must be determined with reference to the needs of the child rather than the sexual preferences of the parent.

Marriage of Cabalquinto, at 329.

On remand, the trial court in a visitation decree authorized the minor son to visit his father in California provided:

that said visitation is only permitted under circumstances where the father does not associate with his homosexual companion to the extent that the companion is a member of the household or the boy could get the idea that 2 men are other than casual friends, including not living in the home in any respect or having other than a casual relationship.
[1] Parents come in all shapes and sizes. It is a wonder of the human race that, as a general proposition, children love their parents and are better off with them than without them. Stanley v. Illinois, 405 U.S. 645, 651-54, 31 L.Ed.2d 551, 92 S.Ct. 1208 (1972). There are some restraints society places upon parents, of course, but they are few in number and sexual preference is not one of them. Marriage of Cabalquinto.

The applicable statute is RCW 26.09.240, which provides in part:

Child custody — Visitation rights. A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger the child's physical, mental, or emotional health.

There is no evidence in the record to support a finding that the visitation "would endanger the child's physical, mental, or emotional health."

The portion of the visitation decree above quoted is stricken. Neither party having requested attorney fees, none are awarded.

SCHOLFIELD, C.J., and WEBSTER, J., concur.

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