Same-sex cohabitation and Amendment 83

This week, one of the most often violated “laws” on unmarried cohabitation in child-custody cases was finally ended by a ruling from the Arkansas Supreme Court.

No longer will unmarried, divorced, single, heterosexual or homosexual couples, especially those who are in a committed relationship, be barred from having overnight visitation in child-custody cases. In other words, a divorced persons new partner – be they male, female, gay, lesbian or transgender – is no longer a compelling reason, in Arkansas, to prohibit the overnight visitation of their children from a previous union.

The ruling ends a widespread Arkansas court custody practice of automatically barring non-custodial parents from living with an unmarried partner, to host their non-custodial children. (Link here for a PDF copy of the ruling.)

Could this ruling, ironically made in the case where the committed relationship is between two men, suggest that our state’s highest court has moved ahead of the conservative Arkansas Legislature in recognizing that not every cohabitating couple is a heterosexual male or female?

The case in court’s ruling was brought by John Moix, challenging an order by Pulaski County 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.

Judge Pierce said 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 (Amendment 83 to the state Constitution) prevents 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, to deny visitation.

Arkansas Republicans, especially the trio seeking the gubernatorial seat in 2014, are against same-sex marriages. Asa Hutchinson, Curtis Coleman and state Rep. Debra Hobbs, R-Rogers, when asked about same-sex marriage, point to Constitutional Amendment 83, which prohibits “same sex” marriages or civil unions.

The referendum approved in 2004, by 74.9% of the voters defines “marriage as between one man and one woman.” That too, is a stumbling block for Democratic gubernatorial candidate Mike Ross. When asked about the state’s ban on same-sex marriages, he points out that while times may be changing, Amendment 83 is the law.

Arkansas’ ban makes it unconstitutional for the state to recognize or perform same-sex marriages or civil unions. Legal status for unmarried persons which are identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman.

The American Civil Liberties Union of Arkansas in a statement said: “The ruling ends a widespread practice in Arkansas custody cases of courts automatically barring parents from living with an unmarried partner regardless of the circumstances. The ruling obviously impacts parents with same-sex partners in situations. The end of the blanket ban also impacts heterosexual, unmarried couples.”

The decision comes two years after the Arkansas Supreme Court struck down a state law “banning foster care and adoption by cohabiting couples without regard to individual circumstances.”

Divorce is an especially stressful, emotional and traumatic time for adults. When children and custody issues are involved, sadly, it is often the courts that get to make the decisions on visitation rights for parents.

This ruling will remove any form of discrimination against how either parent decides to proceed on with his/her life post-divorce.

In 2013, as more state governments (13 at last count) have come to recognize same-sex marriages, Amendment 83 will continue to prevent such activity in Arkansas.