In re Marriage of Black

          FAIRHURST, C J.

         Rachelle and Charles Black were married for nearly 20 years and have three sons. They raised their children in a conservative Christian church and sent them to private, Christian schools. In 2011, Rachelle^[1] told Charles that she is a lesbian. In the order of dissolution, the trial court designated Charles as the primary residential parent. The final parenting plan also awarded Charles sole decision-making authority regarding the children's education and religious upbringing. But the record shows that the trial court considered Rachelle's sexual orientation as a factor when it fashioned the final parenting plan. Further, improper bias influenced the proceedings. This bias casts doubt on the trial court's entire ruling, and we are not confident the trial court ensured a fair proceeding by maintaining a neutral attitude regarding Rachelle's sexual orientation. Accordingly, we reverse.

         I. FACTS AND PROCEDURAL HISTORY

         Rachelle and Charles Black married in July 1994. When they married, Rachelle and Charles were 19 and 21 years old, respectively. Both Rachelle and Charles worked for Rachelle's parents at the parents' business. When Rachelle and Charles had their first child in 1999, they agreed Rachelle would stop working and be a stay-at-home parent while Charles continued to work. Rachelle and Charles have three sons together, ages 17, 14, and 9.^[2] At the time of trial, they lived near Graham, Washington. For most of their marriage, Rachelle was the primary caretaker of the children, and Charles was the primary wage earner.

         The Blacks' Christian background was prominent at trial. Rachelle, Charles, and the children attended a "conservative Christian" church. Clerk's Papers (CP) at 73. Rachelle's parents are elders at the church, and Rachelle had been attending the church for most of her life. Kelly Theriot Leblanc, the guardian ad litem (GAL) assigned to this case, testified that the "family attends a church where the teachings are that homosexuality is a sin." 1 Report of Proceedings (RP) at 36.

         Consistent with their beliefs, Rachelle and Charles agreed to send their three children to small, private, Christian schools in the Tacoma area. Charles testified they chose the schools mainly because of their faith-based teaching: "They believe in the Bible, they follow the Bible, read the Bible. They try to put it in practice. You know, love the sinner, hate the sin, a lot of that." 2 RP at 289. Jennifer Knight, the children's therapist, described their upbringing as "a very dogmatic fundamentalist situation, both at school and at home." 2 RP at 350.

         In December 2011, Rachelle told Charles that she believed she might be "'gay.'" 3 RP at 409. Charles "told [Rachelle] to go and explore and figure out what [she] needed to figure out." Id.

         Rachelle's recognition of her sexual orientation altered the status quo at the Black household, and trying to maintain the status quo for the sake of the children became increasingly difficult. Although Rachelle and Charles continued to live in the same house, Rachelle began sleeping in a basement room after Charles allegedly sexually assaulted her, which he denies, and after he told friends, family, and church members about her sexual orientation without her permission. Rachelle stopped attending the family church, while Charles and the children continued to attend. Around the same time, Rachelle began a romantic relationship with a woman and began spending more time away from home. Rachelle testified that she tried "not to be gone more than one night a week." 1 RP at 113. Rachelle noted that Charles was also gone from the home at times during this period, but she admitted that she was gone more than he was.^[3]

         Charles took on more parenting responsibilities than he had in the past. For example, he received permission from his employers (Rachelle's parents) to adjust his work schedule so that he could leave work before the children were released from school. Charles testified that he typically drove their oldest son to the bus stop every morning and picked up the other children from school in the afternoon. Although Rachelle still typically cooked dinner, she and Charles split other household duties like cleaning, laundry, and grocery shopping. Rachelle believed Charles' increased participation in household duties was intended to undermine her relationship with the children.^[4]

         In May 2013, Rachelle filed for dissolution. The trial occurred in August 2014, nearly three years after Rachelle first told Charles about her sexual orientation. In addition to Rachelle and Charles, the main witnesses at trial were Knight (the ! children's therapist) and Leblanc (the GAL).

         Knight observed the children during 11 appointments between January and July 2014. Knight described the children as "very sheltered" and said that "they don't really have a grasp of what's going on in the real world." 2 RP at 346-47. For example, "they're uncomfortable talking about evolution." 2 RP at 347. Knight believed a transition from the children's "sheltered school" to a public school district would be a struggle because public schools are "very worldly compared to these children." 2 RP at 347-48. Knight believed that from a therapeutic perspective, "the less change that these children have to deal with[, ] the better." 2 RP at 348.

         Because Rachelle and Charles had not disclosed Rachelle's sexual orientation to their children, Knight was the first person to tell them that their mother is gay. Knight testified that the 15 year old at the time, was "flat" upon hearing the news, and Knight thought he "was still processing it, " 2 RP at 349; that the 12 year old "snuggled up to his mom kind of indicating, you know, I'm going to love you no matter what, " id; and that the 7 year old was too young to understand. Knight believed "the children are starting to get more used to the idea that their mother, you know, is in a relationship with a female." 2 RP at 350.

         Knight's primary concern was for the children to be in a "stable environment that's going to be stable long term." 2 RP at 352. Due to the children's upbringing, j they did not understand the concept of divorce. Therefore, Rachelle and Charles' separation "is a major change considering the background of these children, " and Knight believed the best outcome for the children would be a stable environment that "minimize[s]. . . future changes." Id. Knight recommended Rachelle's partner have no contact with the children for the time being.

         Knight testified that she believed Charles was the more stable parent. Knight noted that Rachelle was unemployed, did not have a plan for future housing, and relied on her partner for support: "It always makes me nervous when people are relying on another person to provide for them, because there is no assurance that relationships will work .... I worry that if that relationship doesn't work out, then the children are going to be displaced again." 2 RP at 352-53. On the other hand, Knight stated that Charles "has a history of employment and being a good provider, so obviously he is a stable parent." 2 RP at 353. She testified that the children "have reported that over the last couple of years they've seen [Rachelle] a lot less and that they have spent more time with their father." 2 RP at 362. Despite "some concern about him not being as active in the past with the children because he was the main provider, " the children reported that Charles "has been more part of their daily life" in recent years. 2 RP at 353.

         Leblanc, the GAL, shared many of Knight's concerns. Leblanc testified that I several "collateral sources" indicated Rachelle had been "absent from the home for \ long periods of time on a fairly frequent basis for the last two to . . . three years." 1 RP at 16. This was the main reason Leblanc recommended that the trial court designate Charles as the residential parent:

[O]ver the last two to three years while things have been going south in the relationship when [Rachelle] was not available and when she was not at home, [Charles] always was. He did not deviate from his j participation in school. He has been involved in the medical decisions that were made. He has been available when the school has needed him to respond. He has been present in the home per the reports of the boys, and he's following the direction of the mental health counselor who's trying to help them navigate through all of this.

So, I stated in my report, I don't think it can be reasonably disputed that [Rachelle] historically occupied a role of primary parent. They did have a traditional relationship where he worked outside the home and she was at home ....

But over the past three years when things did fall apart, she wasn't available to the kids. They perceived that she wasn't available to the kids, and the school notes that she was not available, and [Charles] picked up that slack and covered for it for a very long time. And you've got to be able ~ you've got to have some assurance that if things are going to continue to be problematic or hard, which they may be, because there's going to be more changes for these parties. . . . But of the two, [Charles] is employed. He has the ability to support himself. He's not relying on a third person to do that, and right now I just don't know.

1RP at 75-76.

         But Leblanc's recommendation was also based on Rachelle's sexual orientation, at least insofar as she believed it conflicted with the children's religious beliefs. In a preliminary report, Leblanc wrote that Rachelle's "lifestyle choice" might cause controversy given the children's background:

It is significant to note that the children, who have been enrolled in and attending a private Christian school since they each reached school age, have no idea that [Rachelle] now considers herself to be a lesbian. While it is not my intent to cast judgment on [Rachelle's] lifestyle choice, the fact remains that it is a choice that can result in significant controversy. In this instance, the issue has disrupted the marriage and also resulted in difficulty with extended family. Given the family's faith and historical belief system, it is my opinion that the children should be immediately enrolled in counseling. The children are already struggling with the fact that their parents are divorcing and it is difficult to predict how they will react.

Resp't's Sealed Ex. 39, at 7; see also Suppl. Br. of Pet'r at 6-7. However, in her final report, Leblanc claimed her use of the word '"choice"' in the preliminary report did not relate to Rachelle's sexual orientation. Resp't's Sealed Ex. 40, at 21.^[5] Instead, she explained that Rachelle

did choose to spend a large majority of her time away from the home over the past three years; did choose to terminate the marriage; and is planning on living with [her partner]. All of those decisions were a matter of choice and all of those choices are inconsistent with teachings and principles that she and [Charles] elected to share with their children. [Rachelle's] choices did disrupt her relationship with the children and given the family's faith and historical belief system, the choices have also created a great deal of controversy and confusion.

Id. at 21-22; see also Suppl. Br. of Pet'r at 6-7. Leblanc reiterated this point during trial. 1 RP at 43 ("[I]t is certainly not my place to suggest that her gender preference is or isn't a matter of choice. That wasn't my intent when I used the word.").

         Leblanc's final report notes that Charles believed Rachelle "is now on a campaign to re-indoctrinate the children" and that "concepts and ideals the children have been taught throughout their lives are being eviscerated." Resp't's Sealed Ex. 40, at 10.^[6] Leblanc also suggested the children might experience "bullying" as a result of Rachelle's decision to leave the marriage and begin a relationship with her partner:

What I'm saying is the choice to leave the marriage when you have three children and then to establish a relationship with a same sex partner when you've had kids raised in a very conservative parochial environment can be very controversial and people can be very mean. .

And the reality is that it may happen with some of the children's friends or it may happen with families of the children's friends, and the parties need to be cognizant of that because if it does happen or if there is bullying or if there are comments being made, they need to be able to approach them and address them responsibly so that they can help their kids.

1 RP at 44-45. Ultimately, Leblanc's final report demonstrates a belief that the children's religious upbringing would hinder their acceptance of Rachelle's new life:

I understand that [Rachelle] is excited about her relationship and looking forward to moving forward with her life, she doesn't seem to recognize that the children do not necessarily share that perspective. [Rachelle] also seems to forget that she participated in the decision to enroll the boys in a parochial school and helped build the foundation that they have always lived by. Ideas and beliefs that were learned over a lifetime cannot simply be disregarded. [Rachelle] needs to recognize that the children have to be afforded the opportunity to transition at their pace and thus far, I am not confident that she is prepared to let that happen.

Resp't's Sealed Ex. 40, at 24. Consistent with this belief, Leblanc recommended that Charles serve as the primary residential parent. She also recommended that Knight have the discretion to determine when the children may have contact with Rachelle's partner. Leblanc further recommended broad prohibitions on Rachelle's ability to discuss religion and sexual orientation with her children:

I recommend that [Rachelle] be ordered to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyle concepts and further, that she be prohibited from exposing the children to literature or electronic media; taking them to movies or events; providing them with symbolic clothing or jewelry; or otherwise engaging in conduct that could reasonably be interpreted as being related to ...