Child Custody Rights for Gays and Lesbians in Arkansas

Same-sex marriage is against the law in Arkansas. However, this doesn't mean that same-sex couples don't join households, start families and live together as if they were married. It simply means that they do this without the legal protections afforded to heterosexual couples. As a result, child custody matters are more complicated when gay or lesbian parents are involved.

Absent federal action, it is unlikely that this will change anytime soon. Arkansas has a constitutional amendment that explicitly defines marriage as being between one man and one woman. In addition, the 2011 version of the University of Arkansas' Arkansas Poll showed that 50 percent of Arkansas residents believe that same-sex couples should not be given any legal recognition at all, including civil unions or domestic partnerships.

Still, in three recent cases, Arkansas courts have shown their willingness to extend some rights to gay and lesbian parents.

Adoption by Same-Sex Couples

Many same-sex couples choose to start families by fostering or adopting children. While this is legal in Arkansas now, it wasn't always.

In 1999, the Arkansas Child Welfare Agency Review Board issued rules that prohibited gays and lesbians from serving as foster parents. As justification, it argued that living with a homosexual foster parent would put a child's health and welfare at risk.

The Arkansas Supreme Court rejected this argument. It found that the rule was not based on a desire to protect children, but rather on the board members' own morality and prejudices against gays and lesbians. Although the court did not base its ruling on equal protection arguments, it did find that anti-homosexual bias was not sufficient justification to prohibit gays and lesbians from becoming foster parents.

Unfortunately, this did not put the issue to rest. After the court issued its opinion, Arkansas politicians began looking for a way to reinstate the ban. In 2008, the Arkansas Family Council sponsored a voter initiative - commonly referred to as "Initiated Act I" - that sought to prohibit any person who was engaged in a nonmarital cohabitating relationship from becoming an adoptive or foster parent. Although the initiative was carefully crafted to make it look like it was not specifically targeting gays and lesbians, that was its true intent.

The measure passed, but was soon challenged in court. In 2011, the Arkansas Supreme Court struck down Act 1 on the grounds that it violated the fundamental right of an adult to engage in sexual intimacy in his or her own home. In addition, the court noted that a cohabitating relationship is not necessarily a threat to the health and welfare of a child. Instead, it granted the Department of Human Services the authority to decide whether a particular home is a good fit for an adopted or foster child.

Because of these rulings, no court or agency in Arkansas can prohibit adoption or fostering simply because the prospective parent identifies as a homosexual or lives with a same-sex partner.

Children Born to Same-Sex Couples

In other cases, same-sex couples might choose to have biological children of their own. Most frequently, this happens in lesbian relationships when one partner gets pregnant through artificial insemination.

There is nothing that prohibits both partners from acting as parents so long as the relationship remains intact. However, the nonbiological parent will not be considered a "parent" in the eyes of the law.

This can cause considerable difficulty if the couple breaks up and the nonbiological parent wishes to maintain a parental relationship with the couple's children. The Arkansas Supreme Court has supported the rights of nonbiological parents, but only in limited circumstances.

The leading case is Bethany v. Jones, which involved a lesbian couple who decided to start a family after living together for several years. Bethany became pregnant by artificial insemination. Once their daughter was born, Jones stayed home to care for the child while Bethany returned to work.

When their daughter was 3 years old, Jones and Bethany ended their relationship. Initially, they agreed to co-parent. However, Bethany eventually decided that she did not want Jones to have visitation with their daughter. She claimed that as a nonbiological parent, Jones had no legal right to a relationship with the child.

Jones sued Bethany, and their case made it all the way to the Arkansas Supreme Court. Ultimately, the court decided that Jones had a right to visitation, since she acted "in loco parentis." In other words, the court found that - despite the fact that she had no biological relationship - Jones had formed a strong parental bond with the child and it would be in the child's best interest to allow that relationship to continue.

It is important to note, however, that the court's ruling did not create an automatic right to visitation for all nonbiological parents. The outcome could be different in cases where the nonbiological parent did not play such a large role in the child's life.

Custody When One Parent "Comes Out" After Divorce

Child custody issues become even more complicated when children are born to an opposite-sex married couple and one of the parents comes out as gay or lesbian after the couple divorces.

Just months after the decision in Jones, the Arkansas Court of Appeals heard one such case. In part, it concerned a father's argument that his ex-wife should not have been awarded custody of their two children because she became involved in a lesbian relationship while the divorce was still pending.

The appeals court agreed with the trial court's determination that the mother should have custody, but only if she agreed not to enter into a nonmarital cohabitating relationship. In doing so, it stated that "it is true that unmarried cohabitation with a romantic partner . . . in the presence of a child cannot be abided." However, since same-sex couples are not allowed to marry, the court is essentially saying that gays and lesbians must remain single if they wish to retain custody of their children.

Don't Give Up Hope - Talk to an Attorney

It is the unfortunate truth that Arkansas child custody cases are harder for gays and lesbians than they are for heterosexual people. However, gay and lesbian parents should not give up hope simply because the deck seems stacked against them. As these cases show, courts may be willing to side with gay and lesbian parents, even in cases where the law appears quite unfriendly.

If you are seeking to protect your rights as a parent, talk to a Little Rock family law attorney who can help you understand your options.