The Maryland Court of Appeals ruled that where minors are involved in visitation disputes, courts may take into account the "sexual conduct of a parent to determine whether it has an adverse impact on the child." This ruling arose out of a visitation dispute between a former wife, Annica Detthow, and her ex-husband who is living in a homosexual relationship with another man. Ms. Detthow is represented by Liberty Counsel.

After several years of marriage, Ms. Detthow's husband, Ulf Hedberg, left her to pursue a same-sex relationship with a long-time family friend. A Virginia court granted custody to Mr. Hedberg with liberal visitation to Annica, but specified that Mr. Hedberg no longer live with his partner. Mr. Hedberg did not appeal the order. Instead, a year later he moved 26 miles to Maryland, and shortly thereafter asked the Maryland courts to remove the cohabitation restriction.

After the Maryland Circuit Court refused to modify the custody order, Mr. Hedberg appealed, with help from the National Center for Lesbian Rights. His attorneys argued that Lawrence v. Texas, the 2003 U.S. Supreme Court decision striking down Texas's sodomy law, rendered the cohabitation restriction unconstitutional. Hedberg's attorneys urged the court to adopt an extreme view of Lawrence - one that invalidates any court order or legislation that has a "moral base." Virginia courts, as in many states, are permitted to consider whether the parent is living with an unmarried partner, regardless of whether it is a same- or opposite-sex relationship. While Maryland no longer takes extramarital relations into consideration in making custody determinations (absent proof of actual harm to the child), Maryland will enforce a custody order from another state. The Maryland Special Court of Appeal has now rejected the father's argument that the Lawrence decision should invalidate the custody/visitation restriction. The court sent the case back to the trial court where Mr. Hedberg will now bear the burden of proving that there has been a change in circumstances such that it is harmful to the child to not allow Mr. Hedberg to cohabit with his same-sex partner during visitation. Now that he cannot use Lawrence to overturn the ruling, Mr. Hedberg's burden of proof will likely be insurmountable.

Mathew D. Staver, President and General Counsel of Liberty Counsel, commented: "The Maryland Special Court of Appeal rightly rejected the argument that any law founded on morals is unconstitutional. Law is morality in print. To eliminate morality as a basis of law would eliminate law itself. Courts have the right to protect children in custody disputes from being thrust into an environment where one parent is cohabiting with an unmarried partner."