Appeals court upholds lower court in custody case.

A Florida appeals court upheld a judge's decision to award custody of a lesbian mother's daughter to her former husband, a convicted murderer. (Ward v. Ward, No. 95-04184 (Flat Dist. Ct. App. Aug. 30, 1996).)

The three-judge panel found that Escambia County Circuit Judge Joseph Tarbuck did not abuse his discretion in finding that John Ward should have custody of the girl, who is now 12 years old.

The girl's mother, Mary Ward, had appealed the trial court ruling, arguing that Tarbuck based his decision solely on sexual orientation concerns. The First District Court of Appeal panel wrote, however, that Tarbuck's ruling was supported by "competent and substantial evidence" that the girl was being harmed by conduct she was exposed to in her mother's home. Evidence cited centered largely on sexual comments and questions the girl made during visits with her father and his current wife.

"The focus of this case is not on the mother's sexual orientation, but on the best interests of the child," the appeals court wrote. The court said the evidence was open to varying interpretations but that the trial judge was "in the best position to interpret this evidence."

"This decision is heartbreaking," said Beatrice Dohrn, legal director for Lambda Legal Defense and Education Fund, a lesbian and gay rights organization in New York that filed a friend-of-the-court brief on behalf of Mary Ward. Dohrn added, however, that the state appellate court "went out of its way" to say that a parent's sexual orientation should not affect custody decisions.

The lower court had ruled in favor of John Ward gaining custody of the Wards's daughter, citing the fact that Mary Ward lives with a female partner, that another lesbian couple lives in their home, and that household members reportedly watched it-rated videos in the girl's presence. (Convicted Killer, Not Leshian Mother, Awarded Custody of Girl, TRIAL, May 1996, at 16.)