Thursday, February 17, 2011
Law Supreme Court upholds visitation for same-sex ex
Posted by Max Brantley on Thu, Feb 17, 2011 at 10:14 AM
The Arkansas Supreme Court today upheld Circuit Judge Vann Smith's ruling in Perry County that the former same-sex partner of another woman was entitled to visitation with the woman's child, whom she'd helped raise. The court held that the woman, Emily Jones, could be considered in loco parentis, or in the place of a parent, in determining visitation rights. The court noted that precedent has allowed such consideration in a variety of circumstances, including divorced former stepparents.
The women were partners for eight years, from 2000 to 2008, and the mother gave birth after artificial insemination in 2005. When the child was born it was given Jones' last name and her grandmother's name as a middle name. Testimony was that they intended to co-parent and the child referred to her biological mother, Alicia Bethany, as "mama" and to Jones as "mommy." The couple broke up in 2008 and Jones' visitation continued, but then disputes arose and Bethany ended visitation because, she said, of concerns about Jones' fitness. Jones sued claiming breach of contract.
The court held that, though there was no written contract, there was clear evidence of the couple's intent to co-parent. It said the specific facts of this case gave no reason to overturn the lower court that it was in the child's best interest to allow continued visitation. The court said there was no merit to Bethany's argument that the decision would "open the floodgates to allow anyone to seek visitation with a minor child."
The vote was 5-2. New justices Karen Baker and Courtney Henry dissented, objecting that the decision interfered with the parent's prerogatives for raising her child. Baker's dissent was extensive and said the court had treated a same-sex partner with more deference than it had grandparents in past visitation cases.
The court majority rapped Baker in a footnote, saying she operated "under the false premise" that this was a statutory interpretation case. The footnote said Baker had attempted to circumvent the principle of stare decisis — or an established precedent — by claiming that the doctrine of in loco parentis was a mere "interpretive tool." Said the majority: "We will not place such an artificial restriction on the doctrine in order to reach a certain result. Notably, Justice Baker never once discusses the best interest of the child, which is the polestar consideration in a case such as this one." The court emphasized it was not creating new law, but abiding by stare decisis.
Hmm. Sounds like conferences of the new court might be somewhat more contentious in the months ahead. Baker's effort to block visitation here naturally raises the question of whether it's a tip on her view of coming cases related to legal rights of homosexuals, particularly the landmark case on adoption and foster parenting by same-sex couples. Though Baker disputed it, opponents of her election noted her supporters' outreach to conservative religious groups in her campaign. She was widely viewed as the candidate of that political end of the spectrum.
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Comments (10)
Showing 1-10 of 10
This is why I'm a bit wary of electing judges.
The system is just imperfect no matter how we decide to go.
If they are appointment, really right-wing governors or legislatures can appoint really right-wing judges.
If they are elected, if the right-wing turns out more heavily, we get a right-wing judge.
::sigh::
like
dislike
Karen B sounds like she's an out of the main stream coo coo lander. She can fight rights of same sex couples and other minorities all she wants but time is on their side.
Maybe she should be on the MS supreme court where she can support Governor Barb-era and his KKK cohorts.
Is there anyone out there that still believes Courtney Henry is anything but a dyed-in-the-wool conservative?
From my lay perspective this decision appears to be both eminently fair and common sense (at least, common sense for everyone but bigots). The Supremes, at least 5 of them, boiled it down to this: " ... the best interest of the child, which is the polestar consideration in a case such as this one."
Hope our legal experts on this blog will share with us how often the Ark. Supreme Court majority rap, not just with a ruler but a hammer, the expressed views in a minority opinion. The 5 in the majority sure took Karen Baker to task.
Probably be awhile before Baker gets those rapped knuckles out of her cast!
Confession time: I regret my vote for Baker. Shoulda listened to my dear sweet sainted wife and voted for Tim Fox. In fact, had originally planned to do that very thing. Then read that 87% of Baker’s decisions had been upheld by the state Supreme Court compared with 81% for Fox. Moreover, I was bothered by the fact that the Supreme Court once found that Fox had violated the FOIA. And that’s never good. Ah, well. What’s done is done.
The best interests of the child are served by supporting her/his ability to have relationships with both parties. A child does not divorce a parent when parents split the sheets. If both parties are suitable parents, then it's the child's right to have a relationship with both of them. This isn't really about gay/straight/grandparent legal rights. In my mind the rights and best interest of the child are paramount and should be the single determining factor. A child doesn't consider sexual orientation when bonding to caretakers so why should the court? It's irrelevant.
I was the attorney for the biological mother at trial. Even though I lost the case and visitation was granted over my client's wishes I'm glad the Supreme Court recognized that a family can be created and recognized even though Arkansas has no recognition of gay marriage. The court also ordered the non-biological mother to pay child support making this case no different than the typical divorce. Needless to say this is the first time I have ever heard of this being done in Arkansas. The court had to stretch the law to look out for the best interests of the child since our legislature is too afraid to pass legislation dealing with domestic partnerships and all that flow from them. Judges should not be forced to create laws but when legislatures bury their heads in the sand and refuse to acknowledge reality, the courts are required to deal with cases that come before them even if unpopular or controversial. I was very impressed with Judge Smith's willingness to look at the best interests of the child when making his decision and not focusing on the fact the parents are gay or the fact the Arkansas legislature refuses to acknowledge that gay families are families too.
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