LITTLE ROCK — A divided Arkansas Supreme Court on Thursday overturned a circuit judge’s ruling that barred a father from having overnight visitation with his son while his same-sex partner of five years is present.
In a 4-3 decision, the high court sent the case back to Pulaski County Circuit Court for a hearing on whether allowing the visitation would be in the best interest of John Moix’s son.
Circuit Judge Mackie Pierce ruled in November 2012 that Moix could not have his son, then 12, for overnight visits while his domestic partner was present, saying that a non-cohabitation restriction was a matter of established public policy in custody cases in Arkansas.
Moix argued on appeal that a blanket non-cohabitation restriction conflicts with the state Supreme Court’s 2011 ruling that struck down a law banning unmarried, cohabiting couples from adopting or being foster parents. Such a restriction illogically gives a biological parent fewer rights than a foster parent, he argued.
According to the Supreme Court’s majority opinion, Pierce said Moix’s partner “poses no threat to the health, safety or welfare of the minor child” but barred overnight visitation anyway, saying that “other than the prohibition of unmarried cohabitation with a romantic partner in the presence of a minor child, there are no other factors that would mitigate against overnight visitation.”
Justice Cliff Hoffman wrote in the majority opinion that although cohabiting restrictions have been a long-standing policy in Arkansas, “We have emphasized in more recent cases that the policy against romantic cohabitation in the presence of children must be considered under the circumstances of each particular case and in the light of the best interest of the children.”
The court split along gender lines. Chief Justice Jim Hannah and Justices Donald Corbin and Paul Danielson joined in the majority opinion, while Justices Karen Baker, Courtney Goodson and Josephine Hart dissented and sided with Moix’s ex-wife, Libby Moix, who opposed overnight visitation.
Baker wrote in a dissenting opinion that she believed Pierce erred in ruling that a material change in circumstances had occurred.
The issue of overnight visitation arose when John Moix filed a motion in May 2012 seeking modification of visitation and child support. He argued that a material change in circumstances had occurred because his ex-wife had remarried and severely reduced his visitation with his son.
At a hearing in October 2012, John Moix acknowledged that he previously was addicted to prescription drugs and that in February 2010 he was arrested for driving while intoxicated after being in a hit-and-run accident. He told the judge he had been sober since February 2010 and was in a committed, monogamous relationship with his partner.
Libby Moix argued at the hearing that no material change in circumstances had occurred except for changes that were detrimental, such as John Moix’s DWI arrest. She also argued that the relationship between John Moix and partner was volatile.
Pierce granted John Moix an increase in visitation but prohibited overnight visitation when his partner was present.
Baker said in her dissenting opinion Thursday that Libby Moix had been authorized by a 2005 order to deny John Moix any overnight visitation with their son and that “the fact that she began to exercise that authority is not a material change in circumstances.” She said Pierce should have rejected John Moix’s motion and never considered his other arguments.
Goodson said in a separate dissenting opinion that she would affirm “the circuit court’s decision in keeping with our time-tested law.”
“The laudable purpose of the prohibition is to promote a stable environment for children; it is not imposed merely to monitor a parent’s sexual conduct,” she wrote.
Hart joined in both dissenting opinions.