A sharply divided Arkansas Supreme Court voted 4-3 to reverse the circuit court’s requirement that a gay dad’s same-sex partner not be present when he has overnight visitation with his youngest son. Finding that, contrary to the view of the circuit judge, Arkansas does not have a “blanket rule” requiring such a restriction, the Supreme Court sent the case back to the circuit court for a determination whether allowing the partner to be present would be in the best interest of the boy. Moix v. Seventeenth Division Libby Moix, 2013 Ark. 478, 2013 Ark. LEXIS 569, 2013 WL 6118520 (Nov. 21, 2013). The ACLU represents John Moix in his appeal of the circuit court’s ruling.
John and Libby Moix were divorced in 2004. As part of their settlement agreement, they shared joint custody of their three sons, who were to live with their mother and have liberal visitation with their father, a pharmacist. The agreement, incorporated in the divorce decree, contained the usual language that neither party was to have overnight guests of the opposite sex during overnight visitation of the children. But soon after the divorce, John acquired a same-sex partner, Chad Cornelius, a nurse, who began to live with him. This led Libby to seek a modification of the court order, as she claimed that it was harmful for the children to be exposed to their father’s “illicit relationship” with Chad. New negotiations ensued, resulting in a continuation of the custody arrangement for the two older boys (who are twins), but giving Libby full custody of the younger boy, R.M., then age 5, and providing that there be no overnight visitation with R.M.
However, it seems that this restriction was not followed by the parties, as R.M. continued to have overnight visits with his father (and Chad), during which John says he and Chad used separate bedrooms and never displayed physical affection in R.M.’s presence. However, late in 2009 or early in 2010 John became addicted to prescription drugs, had a hit-and-run accident, and ended up getting inpatient treatment while working through issues concerning his pharmacist’s license. He joined Alcoholics Anonymous and Narcotics Anonymous and went on a recovery program that required frequent drug-testing. However, in 2010 Libby remarried and informed John that because R.M. now had a new father, he no longer needed John, and she sharply cut back on visitation. This prompted John, who claimed to have recovered from his addiction, having remained totally sober and passed every drug test, to seek a new order from the court modifying the visitation provisions so that he could have more frequent and overnight visitation.
Under Arkansas law, a court will not reopen a custody/visitation order unless there has been a material change of circumstances since the prior order was made. In this case, John pointed to Libby’s remarriage and sharp restriction in his visitation, as well as his successful treatment and new abstemious lifestyle, as justifying the court modifying the order.
After hearing testimony from the parties and several other witnesses, the circuit judge concluded that John should get increased visitation with his son. John presented several witnesses who testified about his character, Chad’s character, and the relationship of the two men and their children. (Chad is also a divorced father.) Chad’s ex-wife also testified in support of the application to remove the restriction, praising him as a wonderful father. Chad’s 16-year-old son has formed a close friendly relationship with R.M., which is adversely affected by the restriction as well. After concluding that there had been a material change in circumstances, the circuit court concluded that it was in R.M.’s best interest to have more time with John, including one overnight a week. However, the circuit judge said that the court was required by the public policy of Arkansas to impose a “non-cohabitation restriction” that would prevent Chad from being present during any overnight visits.
According to the Supreme Court opinion by Justice Cliff Hoofman, “The court noted that appellant and Chad were in a long-term committed relationship, that they had resided together since at least 2007, and that Chad posed ‘no threat to the health, safety, or welfare’ of R.M. Other than the prohibition on unmarried cohabitation with a romantic partner in the presence of a minor child, the circuit court found no other factors present to militate against overnight visitation in this case.” The circuit court had also rejected John’s argument that the non-cohabitation requirement violated the federal and state constitutions.
John appealed this order to the Supreme Court, arguing that the restriction violated his constitutional rights, and alternatively that the circuit court had misconstrued Arkansas law. Justice Hoofman, observing that the court avoids constitutional rulings if it can resolve a case on other grounds, wrote that the majority of the Supreme Court agreed with John that the circuit court had misconstrued Arkansas law.
Hoofman reviewed several prior Arkansas decisions showing that the courts had departed from a strict observance of a no-cohabitation rule. He referred to a 1999 decision, Campbell v. Campbell, in which “this court made it clear that the purpose of the non-cohabitation provisions are to promote a stable environment for the children and not merely to monitor a parent’s sexual conduct. We have also repeatedly held, however, that the primary consideration in domestic relations cases is the welfare and best interest of the children and that all other considerations are secondary. Therefore, we have emphasize 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 light of the best interest of the children.” Thus, the court agreed with John that “the public policy against romantic cohabitation is not a ‘blanket ban,’ as it may not override the primary consideration for the circuit court in such cases, which is determining what is in the best interest of the children involved.”
In this case, the circuit court’s factual findings suggested that the only barrier to allowing Chad to be present during visitation was the court’s perception that a public policy rule required it. Thus, wrote Hoofman, the circuit court never made a finding on whether it was in R.M.’s best interest to impose the non-cohabitation requirement in this case, so the matter would have to be returned to the circuit court for such a finding. The court also rejected Libby’s argument that there had not been a material change in circumstances that would justify the court modifying its prior order, under which there was to be no overnight visitation.
The three dissenting judges all agreed that John had failed to show the necessary material change in circumstances to justify reopening the visitation order. They also disagreed with the majority’s conclusion that the circuit judge had failed to make a “best interest” determination. Justice Karen R. Baker quoted from the circuit judge’s opinion: “The circuit court stated, in speaking about the noncohabitation provision, ‘The best interest dictates that that be the continued policy of this court, in my opinion. So that will be the order of the court.’ It is clear to me,” continued Baker, “that the circuit court did determine that the noncohabitation provision was in the best interest of the child.” In a separate dissent, Justice Courtney Hudson Goodson argued that the non-cohabitation ruled was well-established, and had not been abandoned in prior cases, and agreed with the other dissenting opinion that the circuit judge had adequately addressed the best interest issue in concluding that the restriction should apply in this case.
Moix’s lawyers on this appeal include Holly Dickson of the Arkansas Civil Liberties Union and Leslie Cooper and James Esseks from the nationl ACLU LGBT Rights Project.