South Carolina Appeals Court Strikes Travel Restriction on Gay Dad's Visitation Rights

Finding that a family court judge had improperly allowed his disapproval of a father's homosexual "lifestyle" to influence a decision imposing a travel restriction when the father has visitation with his children, the South Carolina Court of Appeals struck down the restriction in the case of West v. West, in an unpublished opinion filed on December 14.   The opinion can be found on the court's website, and was the subject of a detailed report in the Dec. 24 issue of the South Carolina Lawyers Weekly.

Lexington County Family Court Judge H. E. Bonnoitt, Jr., granted a divorce to Ernest and Mary West after they had lived separately for a year.  Mary received custody of their two children, with Ernest being granted visitation rights.  Judge Bonnoitt prohibited Ernest from travelling out of state with the children while exercising visitation rights, expressing fear that Ernest might expose them to his "homosexual paramour" who was living in Florida.

The Wests were married in 1992.   In 2002, Ernest's employer went bankrupt and he lost his job at the Columbia, South Carolina, location, but the employer offered Ernest a job in Dallas, Texas.  Ernest moved to Dallas, while Mary and the children remained in South Carolina.  After a year in Texas, Ernest moved to Miami, Florida, to take up a new job opportunity.  In the course of these moves, Ernest became involved in a gay relationship, but fearing that it would affect his contact with his children and disadvantage him in the divorce proceeding that Mary initiated in 2004, he denied the existence of what the court calls "the adulterous affair" until a week before the final hearing on his divorce.

The Court of Appeals' per curiam opinion comments that "in deciding to impose restrictions on Husband's visitation, the judge 'felt it necessary to impose specific restrictions related to the Husband's actions' because he did not condone Husband's alternative lifestyle.  The judge acknowledged the travel restriction was an 'unusual restriction... based on the Husband's self-indulgent and deviant lifestyle' but 'necessary to protect the morality of the children.'"

Judge Bonnoitt had written, "The Husband chose an inappropriate relationship over his marriage.  He admitted that he undertook a covenant with his wife and with a higher power which was broken.  Based on his willingness to break this covenant and pursue an adulterous relationship... his visitation should be confined to the State of South Carolina to protect the best interest of the minor children."  Bonnoitt reasoned that keeping visitation within the state would encourage compliance with the court's orders and that Ernest would be "less likely to be distracted by the pursuit of his other relationship, and as a result, the children are more likely to receive quality time with their father."  Bonnoitt also express concern that if the children were taken out of state, Ernest would be "more likely to expose the children to a harmful situation including exposure to his paramour who lives out of state."

On appeal, however, the court found there was no evidence "that Husband's conduct endangered or adversely affected the welfare of the children."  Although the guardian ad litem appointed to represent the children's interest in the divorce proceeding had "expressed concern with Husband's lack of candor concerning his sexuality," she had "found no evidence Husband had the children around any paramour or subjected the children to an alternative lifestyle."  Indeed, Ernest testified that he had no intention to introduce his children to his gay partner.

The appellate court concluded that "the judge improperly imposed a travel restriction on Husband's visitation with his children.  Absent any evidence that Husband's adulterous conduct endangered or adversely impacted the welfare of his children, we hold the judge impermissibly penalized Husband for his conduct and that it is not in the best interests of the children to uphold the travel restriction."