19th Century Law Cited by Court in Custody Decision

Fred Smith raised his two boys alone after his wife left him in 1990. In 1995, when his ex-wife found out he was gay, she sued for custody.

Thursday, she won.

The court said it did not take the children from Smith because he is gay, but because he violated a 130-year-old law which prohibits unnatural sex acts. Lawyers now say this ruling means any divorced person who has sex outside of marriage could lose their kids.

For three years, Sharon Thompson has pored over files on Fred Smith's case. She was one of the attorneys representing Smith, and was stunned by the outcome of his case.

"The court's sort of imposing what they think is right and proper and moral," said Thompson. "There's an old saying that we don't want government in our bedroom. Well, this is government in your family life."

"I really don't understand what that has to do with your ability to raise a child," said a lesbian mother who asked to remain anonymous.

She lives with her partner and her 6-year-old daughter. She requested anonymity because she is afraid the child's father might use a ruling like this to take away her child.

"It scares me to death, it scares me to death. She is my world," said the woman.

The court stated that Smith's homosexuality was not the issue in their decision. Rather, justices found that he violated an 1868 law prohibiting unnatural sex acts. Chief Justice Burley Mitchell wrote, "Such acts could be detrimental to the best interest and welfare of the children."

There is also an 1805 law in the state against co-habitation. Both laws apply to heterosexuals as well as gays.

Attorneys say this case could have a big impact on every custody case in every courthouse in North Carolina.

"Anybody who is living together for whatever reason and has chosen not to be married at this time, they could risk having their ex-spouse come in and ask for change of custody based on this case," said Thompson.

The 1868 law has been applied infrequently over the past 130 years, but attorneys say this case opens up a whole new realm of custody cases. They say we're likely to see many more people filing for custody, and based on this ruling, their sex lives are going to be fair game on the witness stand.