In 2011, the Arkansas Supreme Court issued a definitive blow to restrictions on unmarried couples, gay and straight, adopting children in Cole v. Arkansas. The 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.