GAY FATHER FIGHTS TO KEEP SONS; FORMER PALMDALE COUPLE FACING N.C. COURT.

Byline: Associated Press

The state Supreme Court enters new territory when it addresses whether a homosexual is a fit parent in a case pitting a man against his former wife.

Carol Pulliam, the ex-wife of Fred Smith, says it's in the best interest of her sons to get out of a homosexual household.

``The oldest one is humiliated by this,'' she said. ``He's totally embarrassed.''

After the former Palmdale couple split in 1991, Smith moved his male lover into the home where he was rearing his two children. That prompted a judge in this small mountain community to take the boys from Smith and give them to his ex-wife.

Gay and legal advocates say the ruling had little basis in law.

``In this case, after the kids found out he is gay, nothing bad happened to them,'' said Deborah Ross, director of the American Civil Liberties Union of North Carolina, which filed a friend of the court brief on Smith's behalf.

Harm to the child is the benchmark in North Carolina law. A judge can transfer custody only if there is a change in circumstances that hurts the child.

The high court is scheduled to hear arguments in the case Wednesday in Raleigh. The court never has addressed the issue before.

When they divorced in California in 1991, Fred and Carol Smith settled amicably the custody of their two boys - Joey, now 11, and Kenny, now 8.

The Smiths' nine-year marriage dissolved after she moved in with another man, Bill Pulliam, and in 1990 moved to Kansas, where she still lives. She left the children with Fred Smith, and in an amicable divorce settlement agreed to pay him $400 a month child support.

Smith, laid off from his job at General Electric in California, moved to North Carolina, where he had family and got a job at GE's Hendersonville plant.

In 1994, Smith became involved with Tim Tipton, a nurse's assistant whom he met at a homosexual bar in Asheville. Tipton eventually moved in with Smith at his Henderson County home.

In August 1994, Carol Pulliam drove the boys back to North Carolina after they spent part of the summer with her. Suspicious of her ex-husband's relationship with Tipton, she confronted him. Smith admitted his homosexuality and Carol filed for a change of custody.

At the custody hearing in 1995, Joey testified that he felt comfortable with Tipton, liked his cooking and had no preference with whom he lived. Kenny did not testify.

District Judge Deborah Burgin of Hendersonville ruled that it was not proper to expose the children to a homosexual relationship, and gave custody to their mother.

The state Court of Appeals overturned the ruling, saying it was based on Burgin's opinions and not on evidence. The boys still live in Kansas until the Supreme Court rules.

Smith contends the case is more about money than morality because he has had to pay his ex-wife child support.

Pulliam denies money plays any part.

Smith has received support from the N.C. Gay and Lesbian Attorneys, the Lambda Legal Defense and Education Fund in New York, the National Association of Social Workers and the American Civil Liberties Union.

The N.C. Family Policy Council, a legal foundation associated with the Christian Right, has weighed in on Pulliam's behalf.