Ark. Supreme Court Overrules Child Visitation Ban for Cohabitating Gay Parents

The state's highest court declared that judges may not restrict a parent's visitation rights based solely on that parent's cohabitation with a partner to whom they are not married.

BY Sunnivie Brydum

November 21 2013 3:26 PM ET

The Arkansas Supreme Court today overturned a lower court's ruling preventing a gay parent from having overnight visits with his son when his partner was in the house, ending the statewide practice of courts automatically banning visitation with parents living with an unmarried partner regardless of other circumstances, according to the American Civil Liberties Union. 

Today's ruling declared that there is no "blanket ban" against equal visitation rights for parents who live with an unmarried partner, deciding that any such restriction must take into account the individual circumstances of the child, parents, and family in the case. 

The case, argued by the ACLU, revolved around John Moix, who wanted to strengthen his relationship with his 12-year-old son, who lived with Moix's ex-wife. Moix petitioned an Arkansas family court to expand his visitation rights with his son, which the judge initially ruled was in the best interests of the child, according to the ACLU. 

But the judge added a surprising — and according to today's state Supreme Court ruling, illegal — stipulation. Moix's son could only spend the night at his father's home if Moix's longtime partner, Chad, was not present when the child was there. Although the judge wrote that Chad "pose[d] no threat to the health, safety, or welfare of the minor child," he was still barred from entering the home he and Moix had shared for at least five years, whenever Moix's son was visiting.

"This put John in the dilemma of choosing between his son and his partner, but he chose instead to fight the restriction, often imposed by family court judges throughout the state," reports the ACLU.

But today's ruling struck down that restriction, setting a legal precedent that advocates say will lead to the abolition of blanket custody restrictions based on a parent's cohabitation status. The Supreme Court remanded the case to a lower court to reconsider the issue in light of this new guidance. 

"The ruling reaffirms the basic principle that custody decisions should be based on an individual family's circumstances and the needs of a child, not a blanket, one-size-fits-all rule," said Holly Dickson, legal director of the ACLU of Arkansas in a statement today.

"The automatic use of these kinds of restrictions in child custody cases has nothing to do with protecting children and imposes an unnecessary burden on families," said Jack Wagoner of the Wagoner Law Firm, which also represented Moix. "This decision makes clear for circuit courts across the state that they cannot interfere with parents' living arrangements unless the facts of the case show a need for such a restriction."

This is the ACLU's third prominent case before the Arkansas Supreme Court in the past decade, following two successful challenges to the state's unconstitutional bans on same-sex couples adopting children or serving as foster parents.