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Arkansas Supreme Court rules against blanket bans on cohabitation of unmarried partners in child custody cases

LGBT Legal Cases

The Arkansas Supreme Court yesterday reversed a lower court’s decision in a custody dispute in which a parent with a long-term same-sex partner sought visitation rights with his child. The state supreme court overturned a ruling that had suggested the state has a blanket policy banning visitation for unmarried parents, and told the lower court to consider whether preventing the parents from having visitation rights is in the best interests of the child. The ruling will prevent state courts from denying visitation rights across the board to same-sex partners, since same-sex marriage is illegal in Arkansas.

Via Think Progress, the state supreme court pointed out that the lower court’s decision had noted that there was no threat to the child in this instance:

In the present case, the circuit court found from the evidence presented that appellant and his partner are in a long-term, committed romantic relationship and that “Mr. Cornelius poses no threat to the health, safety, or welfare of the minor child.” The court further found that, “[o]ther than the prohibition of unmarried cohabitation with a romantic partner in the presence of the minor child, there are no other factors that would militate against overnight visitation.” However, because the circuit court also stated that the mandatory application of our public policy against unmarried cohabitation required it to include a non-cohabitation provision, it made no finding on whether such a provision was in the best interest of R.M. Therefore, we reverse and remand for the circuit court to make this determination.

The ACLU and ACLU of Arkansas filed the case, and issued a press release following the decision:

“The ruling reaffirms the basic principle that custody decisions should be based on an individual family’s circumstances and the needs of a child, not a blanket, one-size-fits-all rule,” said Holly Dickson, legal director of the ACLU of Arkansas.

“The automatic use of these kinds of restrictions in child custody cases has nothing to do with protecting children and imposes an unnecessary burden on families,” said Jack Wagoner of the Wagoner Law Firm. “This decision makes clear for circuit courts across the state that they cannot interfere with parents’ living arrangements unless the facts of the case show a need for such a restriction.”

The decision comes two years after the Arkansas Supreme Court struck down a state law that barred individuals cohabiting with an unmarried partner from becoming foster or adoptive parents.

The case is Moix v. Moix.


  • 1. Dr. Z  |  November 22, 2013 at 8:42 am

    I see the Oregon Christian Coalition has filed for a ballot measure that would make it legal for business owners to discriminate against same-sex couples on religious grounds. Fortunately the proposed initiative is unconstitutional on its face because it was aimed specifically at same-sex couples rather than the more neutral 'sexual orientation' phrasing. That makes it impermissible viewpoint discrimination. But we'll still have to vote on it at the same time as the marriage equality initiative.

    It almost certainly will qualify for the ballot as the bar is very low for initiatives here. As I feared, next year's election is going to get ugly. We would be much better off going thru the courts, even though we can win at the ballot box, precisely because an initiative campaign is going to get all this homophobic hatred stirred up again.

  • 2. grod  |  November 22, 2013 at 9:19 am

    agree, re stirred up again" – as was seen with the 95% of the 7,000 who gave testaments before the Hawaii legislators.

  • 3. sfbob  |  November 22, 2013 at 2:23 pm

    Somewhat off topic I know but I can't see any more appropriate place to note this: Apparently some year-old (or more) posts are being hijacked by spammers. There's a comment that seems somewhat complimentary, followed by an apparent link to some sort of ad site. One post from last December currently has a good half dozen of these sorts of comments attached to it, all of them posted within the last day or so.

  • 4. Sagesse  |  November 22, 2013 at 2:29 pm

    I report these as spam (the Report button at the bottom right of the post) when they hit my inbox. Don't monitor it closely, but I believe the site administrators take steps to delete and/or block them.

  • 5. sfbob  |  November 22, 2013 at 4:14 pm

    Thanks Sagesse. For some reason the "report" button must have escaped me. It does seem odd that spammers use very old entries. It sort of raises eyebrows in a way they mightn't be raised if they were posted in response to more recent articles.

  • 6. Sagesse  |  November 22, 2013 at 5:03 pm

    Some of the spamming is done by bots, I think… not idea how they pick which posts to spam.

  • 7. Fluffyskunk  |  November 22, 2013 at 7:21 pm

    They're doing it for the purpose of search engine optimization. Linking to their own site from a blog with a high Google rank increases their own Google rank even if the posts are old.

  • 8. ebohlman  |  November 23, 2013 at 4:14 am

    It doesn't actually work because most blogs, including this one, stick a "rel=nofollow" attribute on links in comments, and all reputable search engines don't count such links when determining the linked-to site's rank..

  • 9. MightyAcorn  |  November 23, 2013 at 8:30 am

    Yeah, I've suggested that comments be closed on posts that are older than 90 days, or something. It's kind of depressing to see, and I think it has an impact on the site's cred.

  • 10. mnbob  |  November 22, 2013 at 4:10 pm

    In Arkansas, it's the little victories.

  • 11. Steve  |  November 23, 2013 at 8:29 am

    They are still doing that shit in Texas and Tennessee:

    In the Texas case the judge (aptly named "Roach") interested that clause into the divorce agreement all by himself.

  • 12. bythesea  |  November 23, 2013 at 2:23 pm

    Until there is nationwide ME there will be lots of unjust nits to pick and some will take time to be rid of even then.

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