- The Washington Times - Monday, July 5, 2004

DENVER — A Colorado court decision last week, which reversed an order forbidding a child from being exposed to anything “homophobic,” is being cheered by liberal groups on another front — for granting the mother’s former lesbian partner the status of “psychological parent.”

A unanimous Colorado Court of Appeals upheld Denver District Court Judge John Coughlin’s decision to grant “psychological parent” status to Elsey McLeod, giving her an equal role in raising the adopted daughter of her ex-partner, Cheryl Clark.

James Rouse, an attorney for Miss Clark, the girl’s adoptive mother, said his client would appeal the decision to the Colorado Supreme Court, arguing that the ruling gave unprecedented legal authority to a psychological parent.

“What’s absolutely incredible about this is that for the first time in this country, where you have a fit legal parent who’s always cared for the child, and a psychological parent, the psychological parent has the same constitutional right to raise the child as the legal parent,” Mr. Rouse said.

Miss Clark had been living with Miss McLeod, a child psychologist, when she adopted the infant girl from China in 1995. The couple split after seven years. Miss Clark later converted to Christianity and gave up her lesbian lifestyle.

Miss Clark agreed that her former partner should get visitation time but argued that she, as the legal parent, should retain sole decision-making authority over the child, who was not named in court papers.

In his November order, however, Judge Coughlin granted Miss McLeod joint parenting responsibility, saying that the couple’s original intention had been to raise the child jointly.

In a unanimous decision, the appeals court upheld Judge Coughlin’s order, saying that in light of “overwhelming evidence showing McLeod had become a psychological parent … the curtailment and later termination of McLeod’s parental responsibilities in Clark’s proposed parenting plan threatened emotional harm to [the child].”

The decision was cheered by homosexual-rights groups and the American Civil Liberties Union, which had filed an amicus brief supporting Miss McLeod’s position.

“What the ruling essentially does is reaffirm the viability of the psychological parent doctrine in Colorado,” said Heather Hanneman, who filed the brief on behalf of the ACLU. “It protects the interests of children by protecting the relationships and bonds formed with people even if they don’t have legal status.”

Mr. Rouse said the ruling weakens the rights of legal parents.

“It’s joint custody, 50-50. The child moves between houses every week. If they disagree on the child’s upbringing, they have to go to court,” Mr. Rouse said.

However, the appeals court vacated Judge Coughlin’s “homophobia” order. His ruling had required Miss Clark to “make sure that there is nothing in the religious upbringing that the minor child is exposed to that can be considered homophobic.”

The custody order touched off a nationwide outcry from Christian groups, who wanted to know whether traditional Christian teachings on, among other matters, marriage as the union of a man and a woman, would be considered “homophobic.”

The ruling also led to a movement to impeach Judge Coughlin. In March, Republican state Rep. Greg Brophy filed a resolution calling for the judge’s impeachment, but the House Judiciary Committee voted it down.

In the Thursday opinion, the appeals court remanded the ruling to the lower court, saying that Judge Coughlin needed to define what he meant by “homophobic” and explain why exposure to it would be harmful.

“The court neither defined ‘homophobic’ nor found that exposure to homophobic teachings would either endanger [the child’s] physical health or significantly impair her emotional development,” said the court in its 50-page opinion.

Mr. Rouse praised that aspect of the opinion.

“They’re basically saying, ‘You’re a sloppy judge, go back and explain what you mean,’” he said.

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