The Arkansas Supreme Court on Thursday upheld a lower court ruling granting visitation rights to a nonbiological parent for a child produced in a same-sex relationship.
The 5-2 decision sided with Circuit Judge Vann Smith, who, after a Perry County bench trial in 2009, found that Emily Jones had established a relationship with the child based on the doctrine known as in loco parentis, Latin for in the place of a parent, and awarded Jones visitation over the objection of the child’s mother, Alicia Bethany.
The decision is a first in Arkansas involving a same-sex relationship, which was reflected in the court’s decision to grant Bethany’s motion to allow the state’s highest court to rule on the case rather than the Arkansas Court of Appeals because it involved an “issue of first impression” - an issue the court previously hadn’t addressed.
It also foreshadows another case involving same-sex couples the court will take up next month - the ban on allowing unmarried couples to be foster parents or adopt children.
Some aspects of the case are not in dispute, according to Thursday’s ruling. Bethany and Jones were same-sex partners from 2000 to 2008. In 2003, they purchased a home together and both were mortgagors. Through artificial insemination, Bethany became pregnant and gave birth to “E.B.” in 2005. They gave the child Jones’ last name. Testimony at trial indicated Bethanyand Jones intended to raise the child together. Bethany also testified at trial that at the time of conception, she considered Jones to be E.B.’s parent.
After E.B. was born, Bethany and Jones agreed that Jones would be the child’s primary caregiver, with Jones remaining at home while Bethany worked full time. E.B. called Bethany “mama” and called Jones “mommy,” according to court documents. E.B. also formed close relationships with members of Jones’ family, including her parents. By contrast, E.B. had few ties to Bethany’s parents.
In 2008, Bethany and Jones ended their relationship but agreed to continue to serve as E.B.’s parents. Their relationship then deteriorated to the point where Bethany had concluded it no longer was in the best interest of E.B. to have contact with Jones. Bethany questioned Jones’ ability to parent, pointing to her instability and depression, the child’s safety and Jones’ truthfulness, according to Thursday’s opinion.
Jones sued, alleging that Bethany breached the implied contract she and Jones had in agreeing to raise the child jointly. Bethany argued Jones lacked standing because nothing in Arkansas law allowed her to have visitation with E.B.
Smith ruled that Jones hadbecome, for all practical purposes, a parent to E.B. and that it was in E.B.’s best interest that Jones continue the parental relationship.
In Thursday’s decision, Justice Donald Corbin, writing for the majority, said that although the case involved parents from a same-sex relationship, the relationship was tangential to the case and, in fact, went to the heart of previous rulings.
“While the exact facts of this case are unique, we have cases discussing the doctrine of in loco parentis,” Corbin wrote.
He cited a 2005 state Supreme Court decision in which a stepmother petitioned for visitation with her stepson after a divorce from the child’s father, who objected. The circuit court granted visitation, finding that the stepmother had acted as a parent to the child since he was 18 months old, that the stepson considered her his mother and that it would be in his best interest to have visitation.
“Thus, the doctrine of in loco parentis focuses on the relationship between the child and the person asserting that they stood in loco parentis,” Corbin wrote.
On the other hand, Corbin said, Bethany focuses on the relationship between her and Jones in arguing that because Arkansas doesn’t recognize same-sex marriage or grant domestic-partnership rights, Jones has no standing to say she was a parent.
“There is nothing in our decision [from the stepmother case] to support Bethany’s assertion in this regard,” Corbin wrote. “We reiterate that the focus should be on what, if any, bond has formed between the child and nonparent.”
Noting the “ample evidence” of the relationship between Jones and E.B., “we hold that the circuit court correctly determined that Jones was a parent figure to E.B.,” Corbinsaid.
And given the “great weight of evidence” reflecting Jones’ care of E.B., the relationship Jones formed with the child and the child’s relationship with Jones’ family, Corbin said the high court couldn’t disagree with Smith’s ruling that it was in E.B.’s best interest to have visitation with Jones.
Corbin dismissed Bethany’s contention that a ruling in Jones’ favor would “open a floodgate that allows any person, i.e., a nanny, a baby sitter, a girlfriend or boyfriend, to go into court and seek custody of a child.”
He cited a Kentucky case that found those relationships were “never intended by the parent to be doing so in the capacity of another parent.”
In a dissent, Justice Karen Baker wrote that the majority “focuses on numerous facts regarding the parties’ history in this case, seemingly, as a basis upon which to craft a newjudicial right of visitation for Jones.
“Yet, the opinion fails to furnish any meaningful analysis of Bethany’s right to parent her child as she sees fit. That omission, fostered by the trial court and advanced by the majority, creates the impression that Bethany and Jones have equal legal footing in this dispute;however, they do not.”
Baker added that Thursday’s decision didn’t meet the test of a 2000 U.S. Supreme Court case that “required heightened review of any state infringement upon a parent’s fundamental right concerning his or her child’s care, custody, and control ... A determination based solely on the judge’s opinion of what is in the child’s best interest makes it possible to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a petition for visitation.”
Justice Courtney Hudson Henry also dissented separately. She wrote that she took the same view she held in a 2009 state Appeals Court case, which she found in “favor of a fit, natural parent to make decisions regarding the upbringing of his or her own children.” The Supreme Court disagreed with her in its rulingon the same case.
Theresa Beiner, a professor at the W.H. Bowen School of Law at the University of Arkansas at Little Rock, said the court relied on traditional notions to open new legal grounds with Thursday’s ruling.
“They’ve never had a case like this before the Supreme Court, but they ended up deciding it was like a case involving a stepmother,” Beiner said.
Jones’ attorney issued a statement praising Thursday’s decision.
“Today’s opinion focused on the paramount consideration in family law matters: The best interest of the child,” said Bonnie Robertson, whose practice is based in North Little Rock. “Ms. Jones, throughout the litigation, was consistent in her position that long-standing Arkansas law supported her right to continue her relationship with the child who has alwaysknown her as ‘mommy.’”
Bethany’s attorney, Wade Naramore of Hot Springs, said his client “wishes to have no comment.”
The state’s high court will hear oral arguments on Act 1 of 2008, the ban on allowing unmarried couples to be foster parents or adopt children, on March 17. Voters approved the restrictions in November 2008 by a 57 percent majority.
The opponents in that case took opposite sides on Thursday’s ruling.
“It’s wonderful to see courts recognize that parties - whether they are heterosexual or not - do have parental rights and do create long-lasting meaningful relations with children that are important to the children and their wellbeing,” said Rita Sklar, executive director of the Arkansas Chapter of the American Civil Liberties Union, which challenged Act 1.
Jerry Cox of the Family Council, which opposes Act 1, lamented Thursday’s ruling.
“What we have here is an example of the continued blurring of the lines of what a marriage is and what a family is,” he said. “And many times it’s the children that get caught in the middle of that.” In the Supreme Court, the case is CR-10-295, Alicia Bethany v. Emily Jones.
Front Section, Pages 1 on 02/18/2011