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McGriff v. McGriff9/21/2004
ord. There were no allegations here that the children had been harmed by Theron's homosexuality, and the magistrate judge did not rely on that factor in his custody determination. The magistrate was within his discretion in awarding Shawn sole legal and physical custody of the children where the record contains substantial and competent evidence that Theron's actions toward Shawn, as well as the difficulty of the current custodial arrangement, were detrimental to the children's best interests. The magistrate judge also did not abuse his discretion in ordering that Theron's partner not reside at the home when the children were present for visitation. Finally, the magistrate was also within his discretion in ordering Theron to assist Shawn in paying her attorney fees, although he erred in making it an open-ended award without any determination about what a reasonable attorney fee would be. We award costs on appeal to Respondent.
Chief Justice SCHROEDER and Justice BURDICK CONCUR.
Justice EISMANN CONCURS IN THE RESULT.
Justice KIDWELL, DISSENTING.
A review of the record, the pleadings and oral argument before this Court make it clear that Theron's sexual orientation was wrongfully taken into consideration by the lower court and now the majority opinion. This should not be the law of Idaho and is undesirable public policy. Therefore, I respectfully dissent.
The Idaho law regarding custody modification is well established. Custody may not be modified unless there is a material, permanent and substantial change in circumstances that indicate that modification is in the best interests of the children. Tomlinson v. Tomlinson, 93 Idaho 42, 47, 454 P.2d 756, 761 (1969). Shawn asserts that Theron's sexual orientation is a substantial change in circumstances. Her petition states, "events have occurred with respect to the Defendant's intimate relationship with a person of the same sex which have completely changed the circumstances, such that it is no longer in the best interests of the girls that they spend one-half of the overnights each week with the Defendant." Although it is clear that Shawn's petition is based on Theron's homosexuality, the majority upholds the magistrate's decision, which clearly appears to take Theron's homosexuality into consideration. Immediately after stating that homosexuality did not play a role in its holding, the magistrate stated, "However, [Theron's] decision to openly co-habit with Nick Case, his partner, is a change in circumstances which will generate questions from the girls and their friends regarding their conservative culture and morays (sic) in which the children live."
The magistrate sets forth several reasons why its decision to review custody was warranted, including the following, which were not included in Shawn's petition:
• The girls' current difficulty and adjustment in changing residence each Wednesday;
• Theron's impending move and change of schools for one of the children; and
• Theron's continuing refusal to communicate directly with Shawn and to allow her to participate in important communications and decisions regarding the girls.
The majority interestingly argues that the Court is not confined by the allegations of the petition when deciding what custody arrangement is in the best interests of the children, so it is insignificant that these reasons were not included in the petition. However, it is unusual and cause for legal concern, that the magistrate reached for reasons to help Shawn succeed in her claim when the primary reason stated in her petition to modify custody, homosexuality, is not a legally permissible consideration.
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