Parents await word on child

High court left same-sex custody case unresolved in '14

Hundreds of same-sex couples in Arkansas are awaiting the state Supreme Court decision on gay marriage, but that case is not the only same-sex matter before the high court.

The court ended its 2014 session with at least three cases left unresolved. One is the challenge to the state’s gay-marriage ban, but another is an appeal of a lower-court ruling that denied the child-custody and visitation rights of a nonbiological same-sex parent.

The lower-court decision was issued in October 2013 by Jackson County Circuit Judge Philip Smith in Jessica Foust’s case against her former domestic partner, Maria “Patty” Montez-Torres.

Smith ruled that Foust’s desire to visit the child she had parented for several years with Montez-Torres did not trump Montez-Torres’ objections to Foust’s visitation. Smith found that Montez-Torres’ biological child did not show any adverse emotional effects from the severed contact with Foust. Foust appealed Smith’s decision to the high court.

The two women got together in 1994. During their relationship, Montez-Torres had an affair with a man, which led to her pregnancy. The two women decided to stay together and raise the child as her parents. The father reportedly has never attempted to establish parental rights.

Foust and Montez-Torres ended their relationship in 2010 but continued to parent the girl, “M.F.” For a time, Foust had partial custody of M.F. on weekends and Wednesday nights.

Montez-Torres married a man in 2012, and Foust married a woman in Iowa in 2013.

According to court filings, the pair’s relationship soured.

Foust said Montez-Torres severed contact between Foust and the child, citing concerns about Foust’s personal life and Foust’s failure to follow Montez-Torres’ rules in regard to the child.

Foust filed suit in circuit court to regain access to the girl, arguing that although she was not the biological mother, she was a psychological parent and had “in loco parentis” rights, meaning she served in place of a parent. Foust said she was solely financially responsible for the girl early in her life.

Smith recognized that Foust did have in loco parentis rights early in the child’s life but found that Foust was no longer a parental figure for the 8-year-old. Smith also found that there was no evidence that the child had “suffered any ill effect” over the severed ties with Foust.

Foust’s arguments for custody, or at least visitation, were based on a 4-year-old, 5-2 ruling by the Arkansas Supreme Court in the case Bethany v. Jones, CV-10-295. In that decision, visitation rights were extended to former same-sex partners as long as they established themselves as having played significant parental roles in a child’s life.

The two dissenting votes in that case were cast by Justices Courtney Goodson and Karen Baker, who remain on the state’s high court. The author of the majority opinion extending some custody rights to same-sex partners in Bethany vs. Jones was Justice Donald Corbin, who retired at the end of 2014.

The two cases are similar in that the couples’ relationships deteriorated and one parent was cut out of visitation.

In her appeal, Foust took issue with the lower court’s finding that it was in the child’s best interest not to have contact with her. She also argued that her in loco parentis rights did not end when she and Montez-Torres separated because Foust continued to play a role in the girl’s upbringing.

“The Circuit Court erroneously placed too much emphasis on [Montez-Torres’] unreasonable directives and [Foust’s] ability to follow [them] … rather than [Foust’s] relationship with M.F., as the overriding concern is the best interests of M.F.,” Foust argued in court filings. “[The court’s] denial of visitation after finding [that Foust] stood in loco parentis, was effectively a termination of [Foust’s] ‘parental rights’, and public policy would be advanced by some sort of presumption in favor of visitation.”

The case, Foust v. Montez-Torres, CV-14-19, was submitted to the state’s highest court Dec. 4. There has been no action by the court since, and it is unclear when there will be a ruling in the case.

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