Divorced Arkansas resident John Moix and his former spouse have a young son, with Moix having visitation rights to see the child and spend meaningful parental time with him.

It would be a material understatement to say that Moix has had a problem exercising that legal right and prerogative. Moix presently lives with a same-sex partner in a long-term committed relationship. The couple wants to marry, but state law bars same-sex marriage.

That has greatly complicated things for Moix, given the state’s public policy against unmarried cohabitation. Specifically, it resulted in a ruling by a state court judge that denied visitation rights for Moix in any instance where he sought to have his son spend the night with him while his partner was also present in the home.

The judge in that case acknowledged that Moix was in a committed relationship, and concluded that no threat was posed to his son by overnight visitation. Nonetheless, the court felt compelled to deny visitation based on the policy against cohabitation.

The Arkansas Supreme Court recently intervened in the matter, ruling just last week that cohabitation could not serve as a “blanket ban” against visitation. Interpreting it in such a way, stated the Court, precludes judicial evaluation of what is the primary consideration in a child custody or visitation matter, namely, the child’s best interests.

The case was remanded to the lower court for reconsideration. That development does not guarantee a reversal of the original decision, but it does bar an outcome based on a judicial ruling that visitation must be denied owing to cohabitation alone.

A spokesperson from the ACLU of Arkansas stated that the Court’s decision accorded with the principle that a child custody decision should be based on “the needs of a child, not a blanket, one-size-fits-all rule.”


Source: Care2.com, “Arkansas can no longer stop gay parents from seeing their kids,” Steve Williams, Nov. 27, 2013