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McGriff v. McGriff9/21/2004
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In addition to giving Shawn primary custody of the girls, the majority upholds the decision to limit Theron's visitation "provided [Theron] is not residing in the same house with his male partner." If Theron's sexual orientation is not a factor, it is disingenuous that Theron may only exercise his visitation rights if he does not live with his male partner. The majority somewhat incredulously states that the limitation has nothing to do with Theron's homosexuality, rather it is a consequence of hang-up phone calls allegedly made by Theron's partner to Shawn.
Although courts are not bound by expert testimony, it is very persuasive in cases of this nature that the district court-appointed custody evaluator, Dr. Corgiat, recommended that the approximate 50-50 shared custody arrangement remain unchanged. He noted that, " oth children have a positive relationship with each parent and with each other. Both parents have shown positive nurturing, and have spent quality time in a variety of good activities with the girls."
While the determination to modify child custody is left to the sound discretion of the trial court, this Court may substitute its judgment and discretion for that of the trial court when the record reflects a clear abuse of discretion. Biggers v. Biggers, 103 Idaho 550, 555, 650 P.2d 692, 697 (1982). An abuse of discretion can occur if the trial court misapplies the law or fails to reach its decision by an exercise of reason. Sun Valley Shopping Center v. Idaho Power, 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991). The record reflects an abuse of discretion since Theron's sexual orientation was wrongfully taken into consideration; therefore, the decision of the magistrate should be reversed.
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