Legal Brief Details Flaws in Pro-Lesbian Custody Ruling

By Thomas McFeely

NEW YORK (C-FAM) Pro-family legal experts have mobilized in defense of a Chilean father at risk of losing custody of his three daughters, courtesy of a decision by an international human rights tribunal.

Jaime López Allende has had sole custody of his daughters for the last eight years, has been an exemplary father, and is the girls’ preferred custodial parent. This didn’t matter when the transnational Inter-American Commission on Human Rights (IACHR) ruled on a claim filed against the Chilean government by ex-wife Karen Atala, a Chilean judge who broke up their marriage to pursue a lesbian relationship.

The IACHR concluded Chile’s courts impermissibly violated the American Convention on Human Rights by denying Atala custody because of her “sexual orientation.” The commission’s non-binding decision is now before the Inter-American Court of Human Rights, which has authority under the American Convention on Human Rights to issue binding rulings. On Sept. 8, the Alliance Defense Fund submitted a carefully-researched amicus legal brief to the Court detailing four fundamental flaws in the IACHR’s findings.

First, the ADF brief argues, the Inter-American Court would undermine national sovereignty and “most certainly exceed its competency” by intervening in a matter that Chilean courts handled in full conformity with that country’s legal procedures. The ADF brief also addresses an IACHR request that the Court order Chile to punish the judges who ruled against Atala. “Such overreach is breathtaking in its audacity and patently wrong in so many ways,” the brief comments. “That the Commission would do so … indicates that the Commission must have been overcome by a reckless ideological impulse, in service of which all other principles must be cast aside.”

Second, the amicus brief points out that “sexual orientation” isn’t even mentioned in the American Convention on Human Rights. Moreover, there is neither a substantial body of international legal precedent nor consensus within the international community that the ill-defined concept of “sexual orientation” should be a protected human-rights category.

The third critical flaw in the IACHR decision is that Chilean courts “determined that Karen Atala was an unfit mother for reasons unrelated to her sexual orientation,” the ADF legal brief notes. Judges did consider aspects of Atala’s personal life that suggested she was an inappropriate custodial parent, such as her role in breaking up the family, her subsequent inability to maintain a continuous relationship and her insistence on utilizing her daughters as unwilling pawns in her high-profile political activism as a “lesbiana publica.” But this consideration didn’t violate Atala’s “right to privacy,” as concluded by the IACHR, since similar conduct by a heterosexual parent automatically would be regarded as highly relevant in determining whether granting that parent custody was in the best interests of the parent’s children.

Finally, the ADF brief asserts, even if the Court finds that Atala’s human rights were violated, it’s still bound to reject the IACHRs’ custody finding. That’s because it’s settled international law that the children’s best interests trump all other factors, and the facts incontrovertibly establish Allende as a superior custodial parent.

“An individual’s sexual orientation must remain a neutral factor in all custody determinations, and should not give rise to a ‘supercategory’ or preferential treatment,” the ADF brief concludes. “To do so would be in direct violation of long-standing international principles placing the best interests of children above all other considerations.”

The Court is currently hearing arguments about the Atala case. Other pro-family groups from the U.S., Canada, the U.K., Australia, Chile, Mexico, Argentina and Jamaica have said they also intend to submit briefs in support of Allende.

Thomas McFeely writes for C-FAM. This article first appeared in the Friday Fax, an internet report published weekly by C-FAM (Catholic Family & Human Rights Institute), a New York and Washington DC-based research institute (http://www.c-fam.org/). This article appears with permission.

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