The Arkansas Supreme Court [official website] on Thursday ruled [opinion;\, PDF] that an order prohibiting a parent from having overnight visitation with his child in the presence of his long-term domestic partner failed to consider the best interests of the child. Arkansas courts had an established precedent of barring parents in child custody cases from living with an unmarried partner regardless of the circumstances. The lower court had ruled that the child should have overnight visitation with his father but had ordered that the father's partner could not be present during any overnight visits despite finding that the partner posed no threat to the son. Although the parent argued that the non-cohabitation agreement also violated his rights to privacy and equal protection, the supreme court did not address those arguments. The Arkansas Supreme Court found that whether a non-cohabitation restriction should be imposed must be examined based on the facts of each case to see what is in the best interest of the children. The opinion read:
[W]e agree with appellant that the public policy against romantic cohabitation is not a "blanket ban," as it may not override the primary consideration for the circuit court in such cases, which is determining what is in the best interest of the children involved. In the present case, the circuit court found from the evidence presented that appellant and his partner are in a long-term, committed romantic relationship and that "Mr. Cornelius poses no threat to the health, safety, or welfare of the minor child." The court further found that, "[o]ther than the prohibition of unmarried cohabitation with a romantic partner in the presence of the minor child, there are no other factors that would militate against overnight visitation." However, because the circuit court also stated that the mandatory application of our public policy against unmarried cohabitation required it to include a non-cohabitation provision, it made no finding on whether such a provision was in the best interest of R.M.The case was remanded back to the lower court for that determination.
The legal controversy over same-sex marriage has also implicated debate over the parental and adoption rights [JURIST backgrounder] of homosexual couples, which has generated a great deal of both domestic and international legal commentary, scholarship and debate [JURIST op-eds]. In July, three same-sex couples filed a lawsuit [JURIST report] challenging Amendment 83 to the Arkansas Constitution [text, PDF], which reads, "Marriage consists only of the union of one man and one woman," as violating their rights to equal protection and due process under the Fourteenth Amendment [text] of the US Constitution. The lawsuit came in the wake of the US Supreme Court decision in United States v. Windsor [SCOTUSblog backgrounder; JURIST report], holding [opinion, PDF] that Section 3 of the federal Defense of Marriage Act (DOMA) [text; JURIST news archive] is unconstitutional. In April 2011, the Arkansas Supreme Court upheld [JURIST report] a lower court decision invalidating a state ban which prohibits all unmarried couples from adopting or fostering children in the state, effectively denying all gay couples the right to adopt or foster a child because Arkansas does not recognize gay marriage.