Reviews of Bottoms v. Bottoms, 12 VLW 262 (Va. Ct. App. 7/29/97) and Bottoms v. Bottoms, 14 VLW 257 (Va. Ct. App. 6/29/99)
VISITATION — LOVERS — HOMOSEXUAL. The Court of Appeals will not always defer to the “chancellor below, who saw and heard the witnesses, etc.” even in a dispute over details and conditions of visitation. If the case involves Sharon Bottoms and her girl friend, the court will review the visitation-conditions decision and remand for an appropriate result. In an unpublished opinion the Court of Appeals reverses a decision of the judge below that when Ms. Bottoms has visitation with her son, it must be in her own home, and in the absence of her inamorata. Saying that the mother could not have the lesbian life partner around, the Court of Appeals explains, amounts to basing the decision solely upon the mother’s “sexual status,” and ignoring all those other factors that have to be reviewed. Apparently this is a holding that every decision about the conditions of visitation has to take cognizance of the statutory factors that control custody decisions under code §20-124.3, and make findings on the impact of all pertinent conduct upon the child. To make this decision about who could be present when the visitation parent has the child, the trial court, we learn, was also required to make findings upon the “interaction of the mother and [the custodial] grandmother.” The trial court had said that it was required by Roe v. Roe 228 Va 728 (1985), to forbid contact between the child and lesbian lover, but the Court of Appeals says this is a misunderstanding of Roe v. Roe. Bottoms v. Bottoms, 12 VLW 262 (7/29/97).
VISITATION — HOMOSEXUAL. Another ruling has come along in the Bottoms case, and has been affirmed in an unpublished opinion by the Court of Appeals. Bottoms v. Bottoms, 14 VLW 257 (6/29/99). The appellate court affirms rulings that the mother’s visitation will have to take place without the presence of her lesbian lover, that the mother does not get to participate in the child’s school activities when the custodial grandmother does not want her there, and that there will not have to be “family counseling.” The evidence showed the boy doing fine with the grandmother. There was expert testimony that “being able to observe the mother interacting with the partner might reduce the son’s risk of developmental problems in the future,” but it was all right for the judge to reject the opinion of this expert, who never interviewed the other party — especially in the face of expert testimony that this child is much better off mentally and physically nowadays. The guardian ad litem recommended the expanded visitation, but the judge did not have to follow that either. The standard is abuse of discretion, and that has not been shown.