Arkansas Supreme Court Affirms Visitation Order for Former Lesbian Partner

The Arkansas Supreme Court affirmed a trial court's ruling that a lesbian mother's former partner was entitled to a visitation order to maintain contact with the child whose conception she helped to plan and for whom she was a primary parent during the early years of the child's life.  Relying on the doctrine of in loco parentis, the court concluded, by a vote of 5-2, that the record supported Perry County Circuit Court Judge Vann Smith's conclusion that a visitation order would be in the best interest of the child.  Bethany v. Jones, 2011 Ark. 67 (February 17, 2011).

Alicia Bethany and Emily Jones lived together as partners in Perry County, Arkansas, from 2000 to 2008.  They bought a house together in 2003, and took steps to have a child in 2004, when a male friend of Jones agreed to be their sperm donor.  Due to health reasons, they decided that Bethany would bear the child, who was conceived through alternative insemination and born in 2005.  Bethany and Jones both testified that they intended to raise their daughter together, and Bethany further testified that when the child was born she regarded Jones as one of the child's mothers.  Bethany went back to work and Jones stayed home as the child's primary caregiver.  Bethany's contact with her family of birth was slight, but Jones was close with her parents, who took on a grandparenting role with the child, even taking care of her on occasion so Jones could do some work.

In 2008, the relationship between the women ended, but they agreed that Jones would continue to co-parent the child.  However, Bethany subsequently began a relationship with another woman (who brought her own child into the relationship), and soon decided to cut off her child's contact with Jones.  The precipitating incident, recounted in Justice Donald L. Corbin's opinion for the court, was an occasion when Jones kept the child longer than her agreed 24 hour visitation.  Bethany contended that she had lost confidence in Jones's parenting ability, and both women testified adversely as to the other's health and stability.

Jones filed suit seeking to be appointed legal guardian to the child, but subsequently withdrew that suit and filed a new action seeking a visitation order.  Bethany opposed on the ground that Jones was neither the biological nor adoptive parent of the child and thus had no standing to seek visitation.

Circuit Judge Smith concluded that under existing Arkansas precedents recognizing the concept of in loco parentis, Jones could qualify as a person with standing to seek visitation, and that under all the circumstances of the case, it was in the best interest of the child to have continuing contact with Jones.

The Supreme Court agreed with this analysis.  While acknowledging that a biological parent's rights are grounded in the Due Process Clause of the 14th Amendment of the federal Constitution, as explicated by the Supreme Court in 2000 in Troxel v. Granville, a case in which the parents of a child's deceased father sought visitation over the protest of their son's ex-wife, the child's biological mother, the Arkansas court found that case easily distinguishable.  Bethany and Jones's child was conceived by agreement of the two women, where the biological mother considered her partner to be the child's parent, and where the partner had played a parental role in the child's life as its primary caregiver.  The court considered Jones to be more analogous to a step-parent than the grandparents in Troxel, and Arkansas precedents have supported visitation for step-parents under the in loco parentis doctrine.

Justice Corbin wrote that "the doctrine of in loco parentis focuses on the relationship between the child and the person asserting that they stood in loco parentis.  Bethany on the other hand seems to argue that because Arkansas does not recognize same-sex marriage or grant domestic-partnership rights, Jones has no legal standing to assert that she stood in loco parentis.  In other words, Bethany focuses on her relationship with Jones instead of looking at the relationship between Jones and E.B."  Corbin concluded that there was nothing in the court's prior cases about the in loco parentis doctrine to justify Bethany's arguments, as the court's precedents on this issue focus on the relationship between the child and party seeking visitation, and that the factual record before Judge Smith supported the conclusion that Jones stood in loco parentis to the child.

Appellate courts normally defer heavily to the trial court's fact-finding in child custody and visitation cases, and the Arkansas Supreme Court followed that approach in this case, finding that Judge Smith's decision on the best interest of the child should be upheld unless it could be deemed clearly erroneous.  In this case, the evidence of parent-child bonding and Jones's track record in taking care of the child supported the conclusion that it was in the child's best interest to maintain that relationship.

Justice Karen R. Baker, recently elected to the court in a campaign that the Arkansas Times asserted had sought support from "conservative religious groups," accused the majority of making new law in this case and of failing adequately to protect the constitutional right of the biological mother to decide with whom her child will associate.  Justice Courtney Hudson Henry also dissented, referring to her opinion in a recent decision "in favor of a fit, natural parent to make decisions regarding the upbringing of his or her own children."

Because of the potential constitutional issue in the case, it is possible that Bethany would seek review in the United States Supreme Court based on the Troxel ruling. 

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