*1 September Banc. 1983.] 48749-9. En [No. Marriage In the Matter Cheryll Respondent, and Ernest Cabalquinto, Appellant. Cabalquinto, Douglas, Yaroshefsky Theiler, Drachler, Gibbs, & Mary appellant. Theiler, Alice for respondent. Sanders, B.
Richard American Civil Liberties Thomas on behalf of Elizabeth appel- Washington Foundation, amicus curiae for Union lant. Cabalquinto his former wife J. Ernest
Dolliver, Ernest's dispute in a over are involved Cheryll Grover 8-year-old son Michael. their of visitation with County Superior King from a Cabalquinto appeals Ernest allowing for an order request denying decision Court in California. with Michael *2 on March were married Cheryll Cabalquinto and Ernest Colorado, Springs, in Colorado 3, The resided couple 1973. 7, January Michael on birth to their son Cheryll where gave in 1976, the were divorced Cabalquintos July 1974. On Springs. Colorado El Paso decree, District Court for divorce the the Cheryll. Colorado, custody of Michael to granted
County, the visitation following awarded Ernest The Colorado court rights: Cabalquinto, be Ernest Respondent, 2. That the visitation, rights which rights of
allowed reasonable are the distance considering construed liberally to be Respondent the be so that parties, involved between during the summer particularly liberal rights allowed major alternate the months, parties that hereto and to have opportunity have the so that each shall holidays holidays major him her for those child with or the minor years. in different court entered the Colorado
Shortly before County, Washington, decree, Cheryll King moved to in Renton with remarried and lives She has now Michael. thereafter, moved Ernest Grover. Soon her husband Ronald Concord, resides in Francisco, He now California. to San California, Francisco. a suburb of San divorce, vis- Ernest years after the approximately
For par- where Ernest's County, in King his son Michael ited visited his son on time Ernest During reside. ents also year. length two times of one or average an for each of to over a week days a few stay ranged to see opportunity was given Ernest these instances. he so desired. area whenever in the Seattle Michael like Michael however, he would Ernest decided to allow Cheryll refused When in California instead. to visit California, King filed a motion Ernest togo Michael to visitation clarifying for order Superior Court an County Ernest asked the divorce decree. under the Colorado rights whereby the court visitation schedule court to establish a for him in substan- to visit California would allow Michael holidays on months and several tial in the summer periods that a modi- year. Cheryll objected, arguing throughout decree, interpretation, to an opposed fication of the as necessary Ernest to take child out- would be to enable County County jurisdiction. King side the King Ernest's problem treating avoided the procedural and, clarify as the Colorado decree petition one alternative, petition modify decree. as divorce 14, 1980, on denied hearing August
After a trial court The court California visitation. request Ernest's County at existing pattern King found the of visitation "fair, parents the home of Ernest's reasonable and existing the best interest the child." The relationship found to have "resulted a close were son one which between the and the has [was] *3 expense or accomplished been without undue inconve- Clerk's at 6. Ernest's visitation with Papers, nience." parents in Michael the Seattle area at home of was fulfillment of the Colorado decree held to be a reasonable in and the best interests of the child. The of dissolution was of court further held it was not the best interests the child the father to be remove permitted child for at of for visitation the home Washington California. children, of trial dealing
In matters with the welfare Schuster, Schuster v. 90 are discretion. given courts broad Joslin, (1978); v. 626, 632, P.2d 45 Wn.2d 585 130 Joslin (1954). A dispo 274 P.2d Wn.2d 847 involving sition of a case of and rights manifestly on unless the court appeal will not be disturbed Schuster, v. Munoz supra; Schuster its discretion. abused (1971); Munoz, 810, 813-14, P.2d v. 489 1133 Therefore, Joslin, presented the issue supra. Joslin manifestly its abused whether the trial court by this case is by existing pattern refusing change of discretion visitation.
Ordinarily, presented heretofore, with the facts as we find no manifest abuse of discretion and would existing affirm the trial court. The trial court found the presented arrangement with reasonable of visitation Ernest rights finding visitation, of with which we are inclined to agree. however, Ernest is, There one additional fact. marriage At the time Ernest advised homosexual. Cheryll indicates his homosex- he was bisexual. The record up breaking marriage. ual behavior was a factor presently living his avowed homosexual lover Ernest is Concord, California. opinion, judge expressed strong his oral the triál expressed antipathy living arrangements. homosexual He way in the of hetero- the view that "a child should be led preference, thing [homosex- sexual not be tolerant of boy any uality]" good to live in [not] and that "it can do the might It do some harm." such an environment. undisputed testimony points out the of his wit- Ernest not be harmful. There nesses was that the visitation would contrary. Furthermore, in the record to the is no evidence endanger findings a visitation could the trial court made no physical, mental, the child. See or emotional health of nothing in indicate There is the record to RCW 26.09.240. proposals unreasonable. This of Ernest were the visitation only however, mean, that the reasonable does not claimed Ernest. visitation are those reviewing us, we cannot tell the entire record before reaching of law the trial court followed what standards findings rights. and on visitation While its decision suggest the father conclusions of law determining factor, the unfortunate was not unnecessary *4 to references the trial court contrary. generally indicate weigh the facts of the trial court to It is the function ruling. of this court to state It is the function and make its against appropriate legal which the facts standards
329
specific
make
the rule of law
must be
We now
weighed.
in Schuster v. Schu
was subsumed
the decision
which
ster,
in and of itself is not a bar
supra: homosexuality
rule is
custody
rights
or
reasonable
of visitation. This
See, e.g.,
of other state courts.
consistent with
decisions
(1981); Di
418
286
J.H.,_Ind.
D.H. v.
N.E.2d
App__,
976,
636
v.
A.D.2d
401 N.Y.S.2d
Stefano,
Di
60
Stefano
Court,
523, 63
(1978);
App.
Nadler v.
255 Cal.
2d
Superior
Patenaude,
563,
(1967);
v.
Rptr.
Cal.
352
Bezio
381 Mass.
(1980).
Rivera,
Straight-
See also
Our
It seems Schuster, v. of Schuster Visi- grasp significance supra. rights tation must be determined with reference to rather the sexual preferences needs of the child than paramount. interests of the child remain parent. best unable to determine the basis RCW 26.09.240. Since we are are we unable determine ruling, for was See Turner ruling an abuse discretion. whether (1974). Walla, P.2d App. v. Walla 10 Wn. 517 985 315, 321-22, P.2d Emery, App. also 3 Wn. Mayes See County Superior Court King The case remanded to the determination, further consideration and consistent Cabal- of Ernest opinion, with this quinto. JJ., concur. Pearson,
Utter, Dimmick, J., result. concurs Dore, *5 330 dissenting part) (concurring part, J. —I
Stafford, on the of homo- attempt pass judgment subject do not societal con- sexuality opinion se or on the overtones of per immorality. or These issues are not before cerning morality court, Rather, is whether the trial question this court. herein, discretion in the context of the facts abused its its ulti- giving primary consideration to disposition mate of the case. actually spe avoid with coming grips its desire to law, has application majority
cific
of
correct
of
transparent
resorted to a rather
discussion of "abuse
an
By concluding
provides
discretion."
record
the trial court's
insufficient basis from which to evaluate
discretion,
con-
majority
given judicial
exercise of
has
the trial
personal feelings
judge.
donation to the
a trial
Even a broad
of discretion does not excuse
grant
relevant
issues within the estab-
failure to consider
the father's homo-
statutory
making
lished
framework.
consideration,
sight
the trial court lost
sexuality
primary
its
both to the child and to his father.
of the duties owed
parent's
pref-
I
with the
that a
sexual
agree
majority
While
erence,
alone,
used to restrict visitation
standing
cannot be
disposition
of the
agree
majority's
cannot
rights,
must dissent.
visitation issue.
therefore
correctly
notes the broad discretion
majority
granted
v.
relations cases. Andersen
to trial courts
domestic
(1969).
782-83,
Andersen,
779,
P.2d 856
75 Wn.2d
453
consistently deferred to trial courts
such
Indeed we have
a manifest abuse of dis-
except
cases
where there has been
810,
Munoz,
v.
Under the domestic relations
paramount
the child must be the
concern
interests of
470, 477-78,
Becker,
In re
331 however, is, it as this consideration important As parent's funda- against be balanced must nevertheless This is of constitutional parent. right mental to be a right a rational rea- and cannot be restricted without magnitude Illinois, L. 405 U.S. Stanley so. See doing son for (1972). Further, Legis- our State 2d 92 S. Ct. Ed. necessity balancing recognized lature by providing: of the child with the best interests parent denying an order or may modify granting serve the rights whenever modification would *6 the not but court shall restrict best interests child rights unless it that the visi- parent's a visitation finds mental, or endanger physical, tation would the child's health. emotional mine.)
(Italics 26.09.240. RCW finding spe- make a requires This statute that a court restricting parent's cific harm to the child before visita- The Mr. rights. suggests long tion that as as majority his Cabalquinto visiting had the alternative son Seattle, rights were not unreasonable. I can- his visitation his totally prohibiting visiting not Michael from agree. California, clearly restricted Mr. trial court Moreover, this restriction Cabalquinto's rights. imposed requisite finding without concurrent was child. harm the is particular
If the course of action chosen
the court has
grounds,
on unreasonable or erroneous
based
Junker,
Carroll v.
discretion. State ex rel.
abused its
(1971).
avoid overturn-
12,
Therefore, living because the father homosexual and because he has reasonable relationship California here, the court finds it is not neces- rights of visitation sary diction and be juris- to direct the child be removed from in California placed the father's home in order to fulfill the visitation. correctly holds that is not majority either or reasonable visitation
and of itself a bar to
See also Schuster v. Schu-
rights. Majority opinion, at 329.
ster,
90 Wn.2d
nev-
majority
In its oral the trial court commented opinion, *7 immorality homosexuality on the of while at the same time about" Mr. acknowledging "everything Cabalquinto that impression. had made a favorable The trial court stated: boy he to choose frankly The father states wants his Well, in my the kind of life he wants to live. view a child in way preference, should be led the of heterosexual not be of tolerant this God made the two thing. Almighty sexes not but to the human only enjoy, perpetuate to all, aspect race. And after that is the most valuable behavior, sexual the human race. perpetuating boy's find the best interest would certainly can't that attitude, to by being subjected be served this tolerant view of the fact that father have do think also that considered, to be and he can all reason from his free this boy, enjoy company, come know this to him. environment which could be harmful to juxta- The must be comments on court's clearly posed findings the trial court's which favor against above, trial As noted court proposed visitation. any a visit to Mr. finding indicating failed to make that way in any home in would be Cabalquinto's California' contrary, the child. the uncontroverted harmful to To clearly Cabalquinto loving Mr. is a evidence shows A specializ- home psychologist with a stable environment. child's identification testified that a sexual ing gender in life developed early is and that a child of preference his age by Michael's not be influenced father's homosexuality provided the father not flaunt his did sex- uality. testimony The trial as well accepted court as who, that after investigating of the social worker both Mr. his partner, recommended that Michael Cabalquinto be Cabalquinto emphasized allowed to visit California. Mr. his affection left display belief that should be behind promised doors and not to be in his closed indiscreet con- Finally, duct. the trial the former disagreed with Mrs. enough and found that Michael was old to Cabalquinto 1,000 away with spend weeks his father miles home in Seattle. supporting evidence
Despite overwhelming pro- visitation, however, posed the trial court nevertheless found child's that a visit to the father's home was not best unsupportable This absent trial interests. conclusion harm the child. finding specific court's of some only might expo- child harmed court found environment, standing alone sure a homosexual which comply concerning par- does with the law homosexual not ents. restricts the liberal visitation The trial decision virtually in the Colorado decree rights granted original support in the the restriction. no evidence record reasonable parent's not restrict may State is not within parent's lifestyle because that rights merely Patenaude, 381 Mass. Bezio the societal mainstream. *8 N.E.2d 1207 case, with agree cannot circumstances of Under the basis an insufficient provides the record the majority The trial an abuse of discretion. which to determine relied on that improperly misconstrued the law and In the visitation. denying requested misconception any particular suggesting evidence or findings absence of abused child, I hold that the trial court harm to the would Further, gained by nothing would its discretion. This majority. employed remand wholly undirected to the trial if case is to be remanded true particularly to arrive personal views clearly relied on his own who judge ruling. specifi- for the ultimate at incorrect reasons for a and remanded the cause be reversed cally direct that expressed this State as with the law of new trial consistent herein. J., J. Cunningham,
Williams, C.J., Brachtenbach, J. Stafford, Tem., Pro concur 29, 1983.] September 49249-2. En Banc. [No. Petitioner, Washington, v. Terre State Respondent. Farmer, Marie