The Arkansas Supreme Court heard oral arguments today on a case with potential for new precedent in rights for gay people. But it also holds potential for an elemental change in custody cases generally.
John Moix is challenging an order by Circuit Judge Mackie Pierce pertaining to visitation by his 12-year-old son. Moix, divorced from his wife Libby in 2004, has been in a committed relationship with a male partner, Chad Cornelius, since 2007. Pierce said in setting terms for increased visitation that Cornelius could not be present during overnight visits by Moix’s son because Arkansas law prevents unmarried cohabitation in the presence of a minor child. But Arkansas law and Constitution prevent Moix from marrying his partner. Pierce said he found no danger to the child from the presence of the partner and found Moix suitable for expanded visitation, but was bound by the law.
One of Moix’s attorneys, Leslie Cooper of the ACLU, argued that the blanket ban unfairly burdened Moix and didn’t take the interest of the child into account. She said many other courts had ruled with disfavor on blanket bans on cohabitation without consideration of individual circumstances, including in cases of heterosexual couples. Justices raised the question of whether Pierce conducted an analysis of the child’s interests. Richard Worsham, the attorney for Moix’s ex-wife, said the judge had not. He also offered, as a way around the potential constitutional question, that the judge erred in finding for additional visitation for Moix because of his past record for drug abuse. Moix’s attorney countered that the issue had been explored extensively in testimony, that Moix had received treatment and that the judge had found Moix fit for additional visitation.
The argument is archived at the Supreme Court website. Here’s the brief for Moix filed earlier. As I wrote before in talking about the case, the issue is whether, in the absence of evidence of harm to a child, the prohibition of cohabitation violates Moix’s privacy and equal protection rights. Moix’s attorneys have argued that a disapproval of homosexuality underscores the fight by his ex, Libby Stell, against the extended visitation. Her attorney has disputed that, but he made reference in arguments today to a “fundamental right” of the mother to have a say about the “environment her child is exposed to.”
The ACLU’s lawyer relied heavily on an earlier Arkansas Supreme Court ruling that struck down a ban on foster care and adoption by cohabiting couples without regard to individual circumstances. Jack Wagoner, Cooper’s co-counsel, argued, too, against a blanket rule against cohabiting (regardless of gender of the couple) because of changing parental circumstances over time. Some parents become better suited to be custodial, some do not. He said he didn’t necessarily see the case as a gay rights case and said that the ruling could be narrowed to just ending a blanket rule on cohabiting by custodial parents.