Moses v. King

Summary

Victoria Moses and Kelvin King had a daughter together. The couple split up, and primary custody of the child was awarded to Moses. After Moses’ partner moved into her home, King sued to change custody. A lower court did so, even though King had not paid child support for over a year and a half. Since the mother’s relationship had no adverse effect on the child, the Court of Appeals reversed the lower court and said that the mother’s custody rights should never have been changed.

Context

Though much progress has been made throughout the country on child custody and visitation rights for gay and lesbian parents, many courts continue to deny completely a parent’s rights or restrict a parent from exercising these rights in the presence of a same-sex partner. This has forced many gay and lesbian parents, in effect, to make a choice between maintaining a positive relationship with their children or ever having an intimate relationship with another adult.

Lambda Legal's Impact

We successfully fought to ensure that custody or visitation rights cannot be restricted or challenged just because a person is gay or lesbian and lives with their same-sex partner, absent any showing that the relationship adversely affects the child.

History

• December 2004 King moves for modification of custody, one day after having been jailed for willful contempt for failure to pay child support for nearly two years.
• March 2005 Trial court grants modification, giving primary custody to King, ordering Moses to pay child support.
• April 2005 Lambda Legal enters case, files motion for new trial.
• June 2005 Trial court issues amended order, expressly prohibiting Moses’ partner from spending the night when child present, and directing new hearing for child’s testimony to be recorded.
• August 2005 Trial court issues final custody order, after child testimony, this time changing to joint physical custody, alternating weeks, but continuing to include finding that Moses’ living with her partner was a material change in conditions warranting modification.
• December 2005 Lambda Legal asks Georgia Court of Appeals to review the case.
• September 2006 Court of Appeals reverses trial court, holding that a parent’s cohabitation, regardless of gender of the parent’s partner, absent adverse affect on child, can never be basis for restriction of custody or visitation rights.
• October 2006 King asks the Georgia Supreme Court to review the court of appeals decision.
• January 2007 Georgia Supreme Court refuses to hear the case, leaving appeals court victory in tact. Lambda Legal continues to monitor case as it is returned to trial court, to ensure that trial court complies with appeals court order.