Tuesday, November 26, 2013

That was fast! Arkansas Supreme Court rules there is no mandatory ban in custody and visitation cases on the presence of a nonmarital partner

Seems like I just wrote about the case of Moix v. Moix.  Oh....I DID just write about it!  The Arkansas Supreme Court heard oral argument earlier this month, and two weeks later it ruled.  The trial judge was wrong, the court held, in finding that the state has a "blanket ban" on the presence of a romantic partner during visitation.  Instead, the primary consideration in every case is the best interests of the child.  Because it ruled for the father on this state family law ground, it declined to address the constitutional arguments made on the father's behalf.

The court did not provide much analysis other than the best interests test, but its reference to one particular case stands out.  In Taylor v. Taylor, the Arkansas Supreme Court reversed a trial judge who ruled against a mother who was living with a lesbian but was not in a romantic relationship with her.  The mother also testified that she was not herself a lesbian.  The trial judge feared that others would believe there was such a romantic relationship, but on appeal the court said that the outcome of the case could not turn on the false perceptions of others.  It would be easy to read the Taylor case as saying only that a mother can win as long as she isn't really a lesbian.  But the Moix opinion says more than that about Taylor.  It points out, accurately, the Taylor cited cases from other states for the proposition that "there must be concrete proof of likely harm to the children from the parent's living arrangement before a change in custody can be made...'Evidence-based factors must govern,' rather than stereotypical presumptions of future harm."  And those cases (although Moix does not explicitly say this) were cases in which the parent actually was gay or lesbian.  From this, I think it's fair to read Moix as requiring proof of harm before there can be a restriction on a parent's relationship with a same-sex partner.

Unfortunately for Mr. Moix and his son, the court remanded the case for further proceedings.  The trial judge made a factual finding that the partner posed no threat to the health, safety or welfare of the child and that there was nothing else that militated against the overnight visitation, but these findings weren't enough for the Supreme Court to simply remove the restriction.  Rather, the trial court is now to determine whether a restriction is in the child's best interests.  Let's hope the trial judge acts as quickly as the Supreme Court did.

Wednesday, November 13, 2013

Arkansas Supreme Court reconsiders ban on presence of unmarried partner during visitation

In 2011, the Arkansas Supreme Court issued a definitive blow to restrictions on unmarried couples, gay and straight, adopting children in Cole v. ArkansasThe opinion was a landmark articulation of a right to sexual intimacy under the Arkansas constitution.  In a blog post later that year, I pointed out the inconsistency between Cole and numerous other Arkansas rulings preventing the presence of a parent's unmarried partner during the exercise of overnight visitation rights.  A new case squarely raising this latter issue, Moix v. Moix, has reached the Arkansas Supreme Court, where it was argued last week by stellar ACLU attorney Leslie Cooper.  (To watch the video of the oral argument, click this link and scroll down to archived videos from November 7, 2013).

John and Libby Moix divorced in 2004 after John realized that he was gay.  They had three children, but only one is still a minor -- 12 year old Ryan.  John began living with his partner, Chad, and had standard visitation with his children, including overnights, although John and Chad did not share a bedroom when Ryan was present.  After a violent incident between John and Chad in 2005, John agreed to daytime-only visitation.  Although the paperwork was completed and signed, and a court order resulted, the overnight visitation never stopped.  The two older children went to live with their father and Chad in 2008, during their senior year of high school.  Chad has a 16 year old son with whom he has regular overnight visitation.  In what I consider to be an uncommon situation, Chad's ex-wife testified that she had spent much time with John and Chad, was supportive of their relationship, had no trouble with her son being around them, and thought Ryan should be able to have overnight visits with his father.

John is a pharmacist and has struggled with drug addiction.  He twice lost his pharmacy license, most recently after a February 2010 DWI, after which he entered long-term rehab.  He regained his lisence in September 2011 and resumed visitation with Ryan, but Libby stopped overnight visits in January 2012.  In this action, John sought an increase in visitation and the ability to have overnight visitation with Chad present.

Libby is a member of a fundamentalist church and married a minister in that church in 2011.  According to John, Libby has told Ryan that gay people are going to hell.  Libby testified that John's homosexuality was not the main reason she was restricting overnight visitation.  She expressed skepticism about his recovery and concerns over some of his parenting decisions.  She did testify, however, that she believed John's relationship was immoral and against God's intention and that she did not believe that Ryan was emotionally prepared to deal with having a gay father.

From the transcript of the trial, it is evident that the issue of Arkansas's blanket ban on the presence of an unmarried partner was the principle issue from the beginning.  The trial judge said he was required to follow the law and policy of the state, and John's attorney referred to the case as headed to the state supreme court for review of the issue.  The attorney also raised the question of the restriction's constitutionality.

The trial court found it in Ryan's best interest to have more time with his father and so increased the visitation.  He also made a finding that Chad posed "no threat to the health, safety or welfare of the minor child" and that no factors other than John and Chad's unmarried cohabiting relationship militated against overnight visitation.  The court referred to the policy against such overnight visitation as "mandatory" and said the court was required to follow it, so the order requires that Chad not be present during any overnight visitation.  In a simple sentence with no analysis or citation to authority, the court stated that the mandatory policy survived constitutional scrutiny.

In 2010, a Tennessee appeals court ruled, for the second time, that there should no longer be an automatic restriction on the presence of a "paramour" while exercising custody or visitation.  I cannot imagine how the Arkansas Supreme Court can uphold such a "mandatory" rule.  I don't think they need to reach the constitutional claim; all they need to say is what almost every other court says -- that each case should be decided on its individual facts based on the child's best interests.  Given the judge's findings, that should result in an automatic lifting of the restriction.  But it sounded like at least one judge would send it back to the trial court for a new best interests hearing, in other words remand it for further proceedings.  That would be a completely unnecessary waste of time and money for this father, but at least it would clear the path for future parents in Arkansas to enjoy normal, unrestricted custody and visitation rights.

Thursday, November 7, 2013

Indiana appeals court limits nonbio mom to visitation

I remember when the parentage of nonbio moms was so invisible to courts that the ability to obtain visitation rights after the end of the couple's relationship was considered a great victory.  The breakthrough case was In re H.S.-H.K. in Wisconsin in 1995.  The court set out a four-part test, and if the nonbio mom could prove each part and filed a court action soon after the bio mom denied her contact with the child, then she could get visitation rights.

Well, almost 20 years later, that result does not seem like much of a victory.  Is it better than the result in Debra H., leaving nonbio moms who are not married to the bio mom and don't complete second parent adoptions without any remedy at all?  Well, of course.  But increasingly, both statutes and court rulings confer parentage on the nonbio mom, giving her parental rights equal to that of the bio mom (e.g., California, New Mexico, Washington, Washington DC, Nevada).  And even without that, numerous states (including some notably "red" ones like North Carolina and Kentucky) allow the nonbio mom to obtain joint custody (or custody) when it is in the child's best interests.

Indiana looked to be one of such states from numerous appeals court rulings over the years.  But last week, in A.C. v. N.J., the Court of Appeals did a backtrack of sorts, reading a limit into prior cases and leaving the nonbio mom with the option of seeking only visitation.  The facts of the case were unremarkable and consistent with other typical scenarios (complete with donor insemination and the nonbio mom cutting the child's umbilical cord in the delivery room).  The couple lived together until the child was two and then the bio mom allowed regular visitation for another nine months.  When the bio mom terminated visitation, the nonbio mom filed for joint custody.

This ruling highlights why the proposed Model Third-Party Child Custody and Visitation Act, promulgated by the ABA Section on Family Law this past summer, is so off base.  The Model Act parties like it's 1995, to use a musical metaphor.  It basically instantiates the In re H.S.-H.K. standard and would limit nonbio moms to visitation.  The drafters may think they are doing a favor for the children of same-sex couples, but if so they are sadly out of step with the recent trends that recognize parentage or at least the right to joint custody for nonbio moms and dads in such families.  Had the language of the Model Act been proposed in 1996, right after the Wisconsin ruling, I would have jumped for joy.  Today it makes me cringe.  Although it would help families in states with terrible law (that's you New York and Maryland), it could easily slow the progress towards equal parenting rights which is spreading across the country.

The Indiana appeals court said it would await a definitive ruling from the state's Supreme Court before going farther than visitation rights. I don't know if this nonbio mom will seek review in that court, but when some parent finally does I hope that court can look at the family before it and see the obvious -- that the child has two parents.