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.

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