Friday, February 18, 2011

Arkansas Supreme Court approves visitation rights for non-bio mom

In a 5-2 decision, the Arkansas Supreme Court yesterday affirmed a trial court ruling granting visitation rights to a nonbiological mother The case, Bethany v. Jones, has a familiar fact pattern. Alicia Bethany and Emily Jones had been together for five years when Bethany gave birth to a child that she and Jones planned for together. They gave the child Jones as a last name and also gave her a middle name for Jones's grandmother. (Bethany changed the child's name after the break-up). Jones was the child's primary caretaker as a stay-at-home mother for three years. The child called Jones "mommy" and Bethany "mama." She also called Jones's parents, "Grammy" and "Poppy."

The couple split up in 2008 and agreed to co-parent, but Bethany stopped contact soon after. She also began a relationship with another woman, and it appears that she wanted to raise the child in that new family constellation without Jones.

Jones filed for custody on estoppel grounds, but the court does not say anything about the merits of a claim to custody, so I assume Jones did not pursue it. The trial court awarded visitation rights on the ground that Jones stood in loco parentis to the child, and did say that Bethany was estopped from denying that status. Bethany appealed and raised the usual issues about her constitutional rights and about a slippery slope to babysitters getting custody. The court had no difficulty distinguishing the grandparents who sought visitation rights in Troxel v. Granville, the US Supreme Court case on nonparent visitation, from Jones, because of Jones's in loco parentis status. It also dismissed the slippery slope argument, citing a terrific Kentucky case about which I blogged last year.

Arkansas allows stepparents who stand in loco parentis to obtain visitation rights. Bethany had the nerve to say (as bio moms do in these circumstances), that the case establishing those rights could not be applied to Jones because Arkansas does not allow same-sex marriage or domestic partnership. The court quite rightly said that the proper focus was the relationship between Jones and the child, not the relationship between the two adults.

Next month the Arkansas Supreme Court will hear oral argument in the Arkansas v. Cole case, challenging the ban on adoption and foster parenting by anyone living with an unmarried partner (same-sex or different-sex). Of course the legal issues are completely different, but this ruling shows at a minimum that this court is willing to look at matters from the perspective of the child and that the court bears no general animosity to same-sex couples raising children. (And the court did previously strike down an administrative regulation banning gay foster parents, in another case, Howard v. Arkansas.)

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