Another Arkansas ruling against a mother with a same-sex partner

Two years ago the Arkansas Supreme Court, in Cole v. Arkansas, threw out the state's ban on adoption by unmarried couples (gay or straight) because such couples have a constitutional right under the Arkansas Constitution to have their nonmarital relationship.  It was a huge victory.  I have written since then about other Arkansas cases in which a parent has lost custody because of having a nonmarital partner, and it has happened again.  In Brimberry v. Gordon, the appeals court reiterated that trial judges can assess a parent's "morality" in front of the child.  The trial court in this case said that the mother's same-sex partner spent the night in her home and that the child climbed in bed with them in the morning.  This is what the trial court found inappropriate, and the appeals court agreed.

I do not get it. The same couple cannot be denied the adoption of a child on the basis of their nonmarital sexual relationship.  The child can be placed forever in their home as their child.  How can the identical behavior cause a mother to lose custody of the child since has raised since birth?  The court faults her "poor judgment" and "promiscuity," although there is no mention of more than one romantic partner and the poor judgment appears tied to the overnight visits when the child is there.  Supposedly her "lifestyle choices" not her "homosexual relationship" led to the custody denial, but the two are used interchangeably.  The trial judge had some concern about the mother's lack of employment or academic progress in college, and her leaving the child in day care, but if these were legitimate concerns they would need to stand on their own without concern about her same-sex partner, and the appeals court did not make that distinction.

The most common rule about nonmarital partners and custody is that the parent's sexual relationship must have an adverse impact on the child before it can be used against the parent (often called the "nexus" test).  In this piece I wrote earlier this year for UCLA Law Review Discourse, I explain that even this test is wrong.  A court should be able to take anything into account that harms a child; there is no need for a special rule for nonmarital partners.  But the Arkansas court in this case doesn't even give lip service to the nexus test.  How that can be in a state that constitutionally protects nonmarital relationships is an enduring mystery to me.