Imagine this scenario: you have a child, and because of a gap in case law and statutory law, you have to choose between the risk of losing contact with that child forever or allowing the other parent to marry—and your child to therefore live with—a convicted child molester.
Got your attention? Good. Now let me be more specific.
Imagine being a same-sex spouse, raising a child from birth with your spouse and building the bonds that any parent would build. Then the marriage breaks down. The spouse alleges you have no legal rights to that child because you are not the biological parent.
While the divorce is pending, the spouse becomes engaged to a convicted child molester.
Because Arkansas has no specific protections for same-sex, non-biological parents, this woman is at the mercy of a trial court judge and her lawyer’s cobbled-together, hodge-podge of caselaw and constitutional arguments that she is indeed this child’s parent.
“What if this judge is homo-phobic, and the very idea of a child having two same-sex parents is more repulsive to him than the child molester?” “What if the judge strictly construes laws and case law, and just doesn’t agree the non-biological spouse has any rights?”
Do we take this to trial and hope this judge believes that losing this parent would be a horrible result for this child, and is, therefore, willing to use the constitutional grounds and the other cases to carve out parental rights for the non-bio parent?
Or do we hedge our bets and remove the prohibition against this child having contact with his sex-offender, soon-to-be stepdad?
This is a real case. These are real people. The law should protect them.