Unequal Treatment for Lesbian Mom in Arkansas

The Court of Appeals of Arkansas has affirmed a decision by Pulaski County Circuit Court Judge Vann Smith to award primary custody of a teenage boy and girl to their lesbian mother over the objections of their heterosexual dad, who gets visitation rights, but in a burst of unequal "equality," the court also upheld Judge Smith's requirement that both parents are "ordered to refrain from having any romantic partner to whom they were not married as overnight guests when the children were present, at home or on vacation."  Since Arkansas law prohibits same-sex marriage, this means that the mother's same-sex partner will have to maintain a separate residence until the children reach the age of majority, but if the father has a new girlfriend, they could marry and live together.  Bamburg v. Bamburg, 2011 Ark. App. 546, 2011 Westlaw 4375114 (September 21, 2011).

Bob and Lisa Bamburg were married twenty-two years, separating in 2009.  They have two children, a daughter born in 1995 and a son born in 1996.  The son is described by Judge John B. Robbins in his opinion for the Court of Appeals as "a sweet, severely autistic pre-teen boy" who is enrolled in a special education program.  During a pre-trial hearing to settle interim custody issues, Lisa and her girlfriend falsely testified that they did not have a romantic relationship although they were best friends, but in the final custody hearing, Lisa admitted that she and Mary Alice were romantically involved.  Lisa testified that their relationship began around the time of the separation from her husband, but she was not yet ready to tell her daughter about it at the time of the earlier hearing.  "She denied that Mary Alice had moved in," wrote Judge Robbins, "but she agreed Mary Alice was present a lot of the time prior to the temporary hearing, spending the night at her home and traveling with her and the children."

At the end of the temporary hearing, the judge said that Mary Alice was not to "be around" the children, and there was some controversy about how strictly Lisa and Mary Alice complied with that requirement.  At the divorce trial, the daughter testified about having a good relationship with Mary Alice and liking her, and there was also testimony that the daughter told others that she blamed her father for the court ordering Mary Alice to stay away from the kids while the case was pending.  

Bob strenuously objected to Lisa getting primary custody of the kids.  According to Judge Robbins' opinion, "Bob held strong reservations about Lisa having custody of their children because Lisa was in an adulterous homosexual relationship and openly had her girlfriend stay overnight while the children were present.  Bob disapproved of Lisa and Mary Alice sleeping in the same bed together when the children were present, a sign of poor judgement and morals."  He claimed that "Lisa's relationship was detrimental to the children's welfare and embarrassing for them."  He was upset that after the separation Lisa removed photographs of him that had been on display in the house, replacing them with photos of Mary Alice!   He also claimed that Lisa defied the court's interim order by allowing continued contact between Mary Alice and the children.  He said that he had to be the disciplinarian because Lisa's relationship to their children was more as a "friend."  The children told the trial judge that they preferred to live with their mother.

Judge Smith concluded that it was in the best interest of the children to live with their mother.  Although he found both Bob and Lisa to be "good and loving parents" with different parenting styles, Bob was a busy lawyer who did not have the kind of time to devote to the children that Lisa had.  She had substantial income from her ownership interest in a family business, and she also ran a Christmas holiday season giftshop a few months each year, but was mainly a stay-at-home mom with a special-needs son who was closely bound to her.

Wrote Judge Robbins, "The judge, noting the unfortunate circumstance of Lisa's affair and her failure to be forthcoming about it, nonetheless concluded that there was no evidence that Lisa and her girlfriend acted inappropriately in the presence of the children.  On this topic, the judge stated, 'Although the Court does not condone [Lisa] introducing a romantic partner to the children, in the present case, that fact alone does not negate the fact that [Lisa] has been the primary caregiver of the children from the date of birth to the present time.'"  Taking into consideration the expressed preference of the daughter, the court awarded Lisa primary custody.  "Both parties were ordered to refrain from having any romantic partner to whom they were not married as overnight guests when the children were present, at home or on vacation.  Bob was awarded liberal visitation, and he was ordered to pay child support and maintain health insurance for them."

On appeal, Bob challenged the custody decision as "clearly erroneous," characterizing Lisa as "an adulterous liar who disobeys court orders and is a 'friend' instead of a parent."  The Court of Appeals rejected this argument.  "It is true that unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided," wrote Robbins.  But this is only one factor in making a custody decision.  "Custody is not awarded to reward or punish either parent," the "paramount concern" being the best interest of the children.  "The trial court was mindful of the testimony when he ordered, as he had done in the temporary order, that neither parent have overnight visits by romantic partners, addressing the concern of inappropriate cohabitation.  On this record, we cannot say that there is clear error on the custody determination."

That is all the court of appeals had to say about the custodial decision, devoting the greater part of its opinion to a dispute about disposition of assets between Bob and Lisa.  Thus, the court evinced no realization that this decision places an unequal burden on the parties, making it impossible for Lisa to live with a same-sex partner so long as she has primary custody of one or both of her children, while Bob can live with a different-sex partner if he so desires by marrying her, and while dating by just making sure his partner is out of the house for the handful of nights each month when the kids are visiting.  Although the decision to award primary custody to Lisa is certainly welcome and enlightened in light of the merits, the restriction (and the reference to Lisa as "promiscuous") reflects an outmoded view that same-sex relationships of parents are morally inferior and harmful to the healthy development of their children, a view belied by all reputable studies of children raised by same-sex couples.


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