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Heterosexual-homosexual custody battle reflects rising tide of litigation

TUPELO, Miss. (BP)–A Southern Baptist father of three may soon lose custody of his daughters to his ex-wife and her lesbian partner in an emotionally charged case indicative of the legal battles across the nation over child custody rights between divorced heterosexual and homosexual parents.
The case involving Clay McDonald, a longtime member of First Baptist Church, Tupelo, Miss., his daughters, ages 16, 12 and 3, and his lesbian ex-wife is likely headed to the Mississippi Supreme Court and is drawing national attention from pro-family and pro-homosexual groups.
“I am very shocked at the performance of the court system,” said the dejected McDonald after a non-elected trial judge on June 25 ordered his youngest two daughters — the 3-year-old in tears — to join their older sister in going home with their lesbian mother and her live-in partner until an Aug. 3 custody hearing. McDonald had won custody of the two youngest daughters after his marriage ended in divorce in September 1997.
“This is indicative of how the gay agenda pervades every level of society, popular culture, law and government, and social services,” said Rob Reiger, an analyst with the Family Research Council’s cultural studies department. “Children are four times more likely to become homosexuals themselves under such circumstances. It’s a simple, common-sense fact that children need both a mother and a father, not two mothers and not two fathers. Our courts and government are losing site of that fact and the case in Tupelo is an example of it.”
McDonald’s divorce came following a two-year separation from his ex-wife in which she lived with a lesbian partner. But custody of the two youngest daughters took a strange turn earlier this year stemming from a similar case involving divorced heterosexual and homosexual parents.
The Mississippi Supreme Court denied an appeal by the American Civil Liberties Union (ACLU) in February and refused to allow a 15-year-old boy to live with his gay father. However, in a little-noticed portion of the court’s 6-3 decision, the justices ruled that orders prohibiting homosexual parents from visiting their children in the presence of their same-sex partners are illegal unless there is evidence that the partner’s presence poses a threat of serious harm to the child.
McDonald’s ex-wife, acting on the high court’s decision, then took her visitation case to a Mississippi Chancery Court which lifted the restriction that prohibited her from visiting her two youngest daughters “in the presence of any person with whom she engages in homosexual behavior or activity.” When her lesbian partner arrived to pick up the two daughters, McDonald refused to give them to her. (He has always allowed regular visitation between his ex-wife and the two girls.) He was ultimately held in contempt of court and it was during the contempt hearing that Chancellor William Griffin ordered the two distraught children turned over to their lesbian mother until the Aug. 3 hearing.
Members of Tupelo’s First Baptist Church attending the contempt hearing tried to comfort McDonald’s sobbing 3-year-old as she was taken from the courtroom, but they were ordered to stop by a bailiff who threatened to arrest them if they persisted, McDonald said.
“It’s a terrible situation,” said Gayle Alexander, pastor of the 1,700-member Tupelo church. “It’s horrible when children are taken from one parent who is upright and given to one who is homosexual. To object on moral grounds is politically incorrect and it seems homosexuals are making headway in this area. It is a direction other than what God wants us to go. Homosexuality may ultimately be the straw that breaks our nation’s back.”
Similar cases are surfacing throughout the country. For example, a Texas district judge awarded overnight visitation rights to a homosexual father in February after a jury had sided with the heterosexual mother and restricted such visits. The mother wanted no contact between her triplet daughters and her ex-husband’s homosexual partner during overnight visits — a move consistent with heterosexual cases, legal analysts note.
In a case in Tennessee, a Southern Baptist scholar was called to testify in a heterosexual-homosexual custody case last year to counter claims by a female Methodist minister that the Bible does not portray homosexual practices as sinful. The Baptist scholar, in his court testimony, utilized a Hebrew Old Testament, a Greek New Testament and two lexicons to examine a number of passages to rebut the Methodist minister’s assertions.
Pro-family groups regard the child custody battles between divorced heterosexual and homosexual ex-spouses as only part of the intensifying efforts by homosexual activists and liberal supporters to destroy the legal definition of marriage, now viewed as consisting of one heterosexual man and one heterosexual woman. In addition to child custody cases, homosexuals are mounting aggressive legal campaigns to secure and expand adoption rights and to have same-sex unions accorded the same rights under the law as marriages between heterosexual men and women.
Alarmed pro-family advocates point to recent court rulings like the one in New Jersey in which a Superior Court judge ruled that a lesbian must share custody of her 2-year-old son with her lesbian ex-partner. Legal experts say the decision grants the ex-partner the status of parent because of the broad custodial rights given to a woman who is not the child’s birth mother. The mother’s ex-partner was not the boy’s biological mother but stayed home to care for him while the mother worked.
“It’s an enormous victory,” Kate Kendell, who heads the National Center for Gay and Lesbian Rights in San Francisco, told The Washington Post. “It recognizes that biology is not the sole determining factor of whether someone is a parent.”
Justice Charles Fried, in a sternly worded dissent, however, said allowing visitation “was wholly without warrant in statute, precedent or any know legal principle.” He also charged the court with taking an unwarranted step toward endorsing same-sex marriages and called the decision “judicial lawmaking.”
At least three other similar cases are alive in New Jersey and legal experts believe all are headed for appeal to higher courts. The Supreme Court of Massachusetts has also ruled that homosexuals who help their lovers raise a child have visitation rights after the couples break up.
No one knows how many child custody cases there are involving divorced heterosexual and homosexual parents. Many cases are sealed by the court, leaving the sexual orientation of the parents a mystery, legal experts say. The ACLU claims the number of children nationwide living with at least one homosexual parent ranges from 6 to 14 million, but opponents doubt the number is that high.
Homosexual activists are well-greased with cash and are anxious to carry their cause into the nation’s court system, a system wrought with sympathetic judges and trial lawyers who often believe sexual orientation is genetically determined. The top 11 homosexual activist groups plan to spend more than $36 million dollars this year fighting for homosexual rights, according to the Washington Blade homosexual newspaper.
One of those groups, the Lambda Legal Defense & Education Fund, is projecting a budget of $5.5 million. It’s top priority: To overturn sodomy laws in more states. Why do Lambda’s 14 lawyers target state sodomy laws? There is the obvious reason, but also because courts cannot ignore that sodomy remains illegal in many states — particularly in the South — and such laws can ultimately prevent homosexuals from acting as custodial, foster or adoptive parents.
State agencies and courts sympathetic to homosexual desires for visitation rights, meanwhile, have come to apply a “best-interest-of-the-child” standard to decide more and more custody and visitation cases, said Duane Schmidt with the Scottsdale, Ariz.,-based Alliance Defense Fund, a network of attorneys and Christian public-interest law firms. Under this standard, a person’s sexual orientation cannot be the basis for ending or limiting parent-child relationships unless it is demonstrated that it causes harm to child.
“‘Best interest’ is a very broad term and it has given trial judges a large amount of discretion, and if they are good writers they can write whatever they want,” Schmidt said.
“More and more courts are showing preference for allowing homosexuals to have custody and visitation rights,” said Bill Duncan, assistant director of the Marriage Law Project, a legal policy organization in Washington, D.C. “The custody/visitation battle is leading up to the final step of allowing same-sex couples to adopt children. That is already possible in a handful of states like Vermont, California and New Jersey. Others like New York, Ohio, California and Vermont will allow single homosexuals to adopt.”
Meanwhile Clay McDonald prepares for yet another round of court battles that have already shackled him with more than $25,000 in legal fees. (Supporters have set up a legal fund, The Clay McDonald Gift Fund, though not tax-deductible, to help with his legal costs, in care of David Dockery, III, P.O. Box 1304, Clinton, MS 39060.)
“I have found a great deal of comfort in God’s Word,” McDonald said. “It has given me guidance and self-control. The good Lord has a purpose for my life. I do think good people have been beaten down to where they think they have no voice on issues like these. It takes good people to take stand on these things.”

Art Toalston contributed to this article.

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  • Don Hinkle