LITTLE ROCK — A Pulaski County circuit judge erred when he refused to allow a father to have overnight visitation of his son when his same-sex partner of five years is present, a lawyer with the American Civil Liberties Union argued Thursday before the state Supreme Court.
A lawyer for the boy’s mother argued that the judge’s ruling was correct but acknowledged that the basis for the ruling may have been flawed.
The high court heard oral arguments but did not immediately issue a ruling in John Moix’s appeal of a ruling by Pulaski County Circuit Mackie Pierce that prohibits Moix from having his son, who was 12 at the time of the ruling, in his home overnight when Moix’s partner is in the home.
ACLU attorney Leslie Cooper told the justices that Pierce found no reason to believe Moix’s partner posed any potential harm to the child, but ruled against overnight visitation anyway because it is the general practice of Arkansas courts to prohibit overnight visitation when a parent cohabits with a romantic partner to whom he or she is not married.
Same-sex marriage is banned in Arkansas by a 2004 amendment to the state constitution.
Cooper noted that in 2011 the state Supreme Court struck down a state law banning cohabiting, unmarried couples from adopting or serving as foster parents. She argued that Pierce’s ruling conflicted with that ruling by giving a biological parent fewer rights than a foster parent.
“The circuit court found that Mr. Moix and his partner are in a committed, long-term relationship for at least five years, and the circuit court found that the father’s partner poses no threat to the child. So because there is no showing of harm to justify this intrusion on both Mr. Moix’s relationship with his partner and his relationship with his child, it’s an unconstitutional restriction,” Cooper said.
Jack Wagoner, also representing John Moix, told the court that a blanket cohabitation ban “makes no rational sense.” He said one parent could be in a stable cohabiting relationship for years while the other parent marries and divorces multiple times, yet a blanket cohabitation ban would imply that the latter situation is better.
Justice Donald Corbin told Wagoner, “All the many years that I did domestic relations (cases), that was a provision that was stuck in every decree, not to cohabitate with someone other than your spouse.”
“Yes, it’s been my experience if you ask for that provision, you get it,” Wagoner answered. “Judges kind of shrug their shoulders about it these days, though. Times change. We’ve got decisions in nearby states … that say this isn’t reality anymore.”
Richard Worsham, attorney for John Moix’s ex-wife, Libby, argued that a blanket cohabitation ban has become common law in Arkansas through court precedent, although it can be overridden based on an analysis of what is best for an individual child. He argued that the ban is appropriate in the case of Moix’s son.
Worsham said Moix had a history of substance abuse, and although he has been in recovery for years, the problem could be exacerbated by living with his partner. He acknowledged that Moix’s partner has no record of substance abuse but said there has been violence between the two men and called their relationship “volatile.”
Moix previously was prevented from having overnight visitation with his son because of his substance abuse problem, but last year he sought to have the visitation order changed because he had been sober for 2.5 years.
Justice Paul Danielson asked Worsham how the court could get around its 2011 ruling that a ban on adoption and foster parenting by cohabiting couples was an unwarranted invasion of privacy.
“You can’t,” Worsham admitted, but he said Pierce failed to conduct a thorough analysis of what was in the child’s best interest.
Chief Justice Jim Hanna asked Worsham how the court could overturn Pierce on the issue of what was best for the child if Pierce did not base his ruling on an analysis of that issue.
“I think a remand in that case might be an inevitability,” Worsham said.
The court did not indicate when it would rule.