Supreme Court upholds visitation for same-sex ex | Arkansas Blog

Thursday, February 17, 2011

Supreme Court upholds visitation for same-sex ex

Posted By 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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