Arkansas law on same-sex couples raising children is...complicated

Same-sex couples have a constitutional right to carry on a sexual relationship in their home. So do different-sex couples. That's what the Arkansas Supreme Court said in Cole v. Arkansas, the case striking down the ban on adoption and foster parenting by anyone living with a nonmarital partner. The court's ruling was based on the Arkansas constitution. (For more about the case, read here).

So how can an Arkansas court repeat the following: "It is true that unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided"? I can't explain it, but that quote comes directly from a custody case decided in September in which a lesbian mother received custody of her two children but was ordered not to have her partner spend the night when the children were with her. The case, Bamburg v. Bamburg, comes from the Arkansas appeals court and does not mention the Cole case. The quote in turn cites to an Arkansas Supreme Court case from 2001.

Bob appealed the custody awarded to his ex-wife, Lisa, but Lisa did not appeal the restriction placed on her partner's presence. She may have been grateful to get custody at all, especially given the fact that she and her partner lied about their relationship at a temporary custody hearing. The judge's restriction does not allow either parent to have a nonmarital partner present, but it does not appear that Bob has a nonmarital partner. What disturbs me about this is not its unequal burden. It is accurate that Bob can marry under Arkansas law and Lisa cannot, but no parent should be required to marry to have a life that includes his/her children and his/her partner. And you would think that would be clear in Arkansas after the Cole case.

Cole itself said that child custody principles and striking down the foster parent/adoption ban were not in conflict because foster and adoptive parents are individually scrutinized. But in a custody case a parent's partner is also individually scrutinized. Think how odd is the result in the Bamburg case: Lisa and her partner, Mary Alice, must be allowed to adopt a child if they are found suitable, even while living together. But by this ruling they are not allowed to live together with Lisa's biological children. And that is so even though the daughter, who was 15 years old at the time of the trial, stated that she wanted to live with her mother, had a good relationship with Mary Alice, had no problem with their relationship, and did not like that she had been unable to see her while the divorce was pending.

It amounts to this: the state cannot object to Lisa and Mary Alice's home, but Lisa's ex-husband can. And if he does, a court will be more than happy -- with no individualized justification at all -- to send a message to Lisa's children that there is something wrong with being a lesbian mother. Shame on him. And shame on the state for validating his discrimination which the state itself cannot practice.