Appeal from Superior Court of Whatcom County. Docket No: 93-3-00088-0. Date filed: 03/27/95. Judge signing: Hon. Steven J. Mura.
Authored by C. Kenneth Grosse. Concurring: Faye C. Kennedy, Mary K. Becker.
The opinion of the court was delivered by: Grosse
GROSSE, J. -- The trial court prohibited Ward Wicklund from "practicing homosexuality in the sense of exhibiting, or participating in displays of affection . . . with a partner" while caring for his four children. Ward appeals this parenting plan provision. We hold that the trial court erred by restricting Ward's conduct based on his sexual orientation. The evidence showed only that the children experienced difficulty adjusting after their parents' separation. But where the only harm is adjustment, the remedy is counseling, not restrictions on the parents' lifestyle in terms of sexual orientation. Accordingly, we reverse the restrictions. We also reverse restrictions on Corinne's conduct, affirm the children's residential placement, and remand to recalculate Ward's lien on the family house.
Corinne and Ward Wicklund ended their marriage in 1994. They have three girls, ages 13, 10, and 8, and one boy, age 5. Plaguing their marriage were loud and repeated arguments, instances of physical abuse, infidelity, and alcohol abuse. The couple's difficulties were increased by Ward's gradual acceptance of himself as a gay man, a fact that eventually contributed to the Wicklunds' separation. Ward is now in a permanent relationship with a man. When they married, Ward and Corinne were both active members in the Jehovah's Witness faith, and the religion played an important part in the family's life. Corinne and the children remain active members of the faith. Ward is not active in his faith because of the conflict between the religion and homosexuality.
At trial, family psychologist Dr. Duane Stewart testified that based on his testing, the children exhibited no evidence of a "personality maladjustment" that could be "related to the home." He thought the "children were doing rather well." According to Stewart, the children most strongly identified with Corinne and they expressed anger over catching their father lying. He also reported that "although the children are adequately adjusted, their adjustment and well-being are attenuated by the behavior they evidence in transition to their father's residence and lifestyle."
Court-appointed investigator Dr. Allan Needler reported that the children experienced stress and disruption for a sustained period resulting from the conflicts between the parents. He thought the children's stress was abating, and that they were adjusting to the changed circumstances because of the "consistent level of care and attention towards the children by each parent." Because both parents are highly committed to their children, he believed it in the children's best interests to spend equal time with each parent.
Dr. Needler testified that a source of stress in the family was Ward's gradual acceptance of his sexual orientation, observing that:
The long-standing conflict evidenced by this couple and family has resulted from Mr. Wicklund's very gradual acceptance and transition from a heterosexual to a homosexual status. Ms. Wicklund has resultingly experienced abandonment and hostility by virtue of her husband's choice. Mr. Wicklund regularly denied his wife's accusations but also continued to act upon homosexual impulses throughout the marriage. Alcohol abuse during this time by both adults exacerbated the conflicts and the erosion of the marital relationship. There has been a significant course of "cat and mouse"
behavior in attempts to firmly verify Mr. Wicklund's sexual orientation. The eldest children have, at times, become little detectives gathering information about their father.
Because it was a "different set of circumstances for [the] children to learn to adjust to their father being involved with another male," Dr. Needler recommended that Ward have no contact with his partner in the presence of the children. He also recommended counseling so that the children could "gain support to address this matter." Noting the conflict between Ward's sexual orientation and the Jehovah's Witness faith, he thought the parents should work with the problem.
Corinne testified that none of the children had any physical, mental, or emotional limitations and that all of the children were doing well in school. She described her children as caring, loving, well behaved, and helpful. At trial, she sought a restriction on Ward's conduct phrased as:
It would be inappropriate to have Ward display intimate relations with his partner until the children are at an age that they are comfortable and assessed ready to accept that ...