founded on the best interests of the child, by making an arbitrary and unwarranted distinction between the ability of heterosexual and homosexual parents to care adequately for their children. The petitioners also alleged due process violations because through the implementation of a disciplinary action (recurso de queja), which is a remedy of a purely disciplinary nature, the members of the Supreme Court adopted a final decision on the merits of the case without due regard to the arguments of the parties and without ordering new expert examinations that would provide them with a solid foundation to reconsider the custody decision of the two lower courts. 14. In 1993, Ms. Karen Atala, a Chilean lawyer and judge, contracted marriage in Santiago, Chile. Three daughters were born from the union: M. (10 years old), V. (6 years old) and R. (5 years old). 6 In March 2002, the couple decided to permanently separate and by mutual consent agreed that the mother should have custody of the girls; they also agreed on a weekly visitation schedule to the house of the father. After the separation, Ms. Atala began to receive psychiatric and psychological assistance to help her overcome the pain of her failed marriage and come to terms with her lesbianism, in order to be as well equipped as possible to manage her relationship with her daughters in these new circumstances. 15. In June of 2002, Ms. Atala alleges she entered into a relationship with a person of the same sex, and in November of 2002, Ms. Atala’s partner moved in to live with her and her daughters. The petitioner says that in the process of the girls’ adaptation to the new situation, she and her partner exercised all the necessary care and discretion, and followed the advice of a psychiatrist and psychologist who was treating both the mother and the girls. Her partner’s relationship with the girls was allegedly very positive from the outset. 16. On January 30, 2003, the father of the children filed suit for custody with the Juvenile Court in Villarrica, alleging that the mother’s lack of care and neglect as a result of her alternative sexual preference was distancing the children and impairing their normal and proper development. He also drew attention to the risk that the girls might contract sexually transmitted diseases, such as herpes and AIDS. The custody suit prompted several sensationalist daily newspapers in Chile, such as La Cuarta and Las Últimas Noticias, to publish a series of articles about the case. 7 17. On May 2, 2003, the Regular Judge of the Juvenile Court in Villarrica granted provisional custody of the girls to the father at the request of the latter and established a visitation schedule for the mother. The Judge reached this decision despite his express recognition that there was no evidence to presume grounds for legal incompetence of the mother that warranted a change in the existing custody arrangement. It later fell to the Acting Judge of the Court of First Instance in Villarrica to issue the final ruling. On October 29, 2003, that judge rejected the custody suit because she found that: The sexual orientation of the mother does not constitute an impediment to develop a responsible motherhood ……. The respondent suffers from no psychiatric pathology that would make her unfit to perform a mother’s role….. no concrete evidence has been shown that the presence of the mother's partner in the home is harmful to the well-being of the girls …… having analyzed the evidence presented, there is no reason to presume the existence of bad or dangerous examples for the morality of the girls….. the court concludes that the girls have not suffered any discrimination to date and what the witnesses for and relatives of the plaintiff express is a fear of possible discrimination in the future. With 6 The Commission chooses not to disclose the names of the three daughters of Ms. Karen Atala because they are under 18 years old. 7 Abogado Exige Tuición de sus Hijas porque Esposa Jueza sería Lesbiana [Lawyer Demands Custody of Daughters Claiming Judge Wife is a Lesbian], La Cuarta, February 28, 2003; Abogado Exige Tuición de Hijas porque su ex Mujer es Lesbiana, [Lawyer Demands Custody of Daughters Because His Ex-Wife Is a Lesbian] Las Últimas Noticias, March 1, 2003. These articles were submitted by the petitioners in a communication of November 24, 2004. 4