Little Rock, Ark. (AP) – The Arkansas Supreme Court has reversed a judge’s decision barring a man’s same-sex partner from staying overnight when his son visits.
A Pulaski County judge ruled last year that John Moix’s partner could not stay overnight when his son visits, citing a practice by judges of prohibiting unmarried cohabitation in the presence of children.
Moix’s attorneys told the high court this month that the judge violated Moix’s constitutional rights, imposing a blanket restriction on unmarried couples living together.
In a 4-3 decision, the high court ruled Nov. 21 that the “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.”
So the Supreme Court ordered Moix’s case to be sent back to a lower court to decide whether the overnight restriction is in the best interest of Moix’s son. The justices declined to address Moix’s constitutional arguments.
“We have repeatedly held that if a case can be resolved without reaching a constitutional argument, it is our duty to do so,” Associate Justice Cliff Hoofman wrote in an opinion for the majority of the court.
Moix and his ex-wife divorced in 2004, and he has lived with his partner since 2007.
The overnight restriction was part of a modified visitation order from last year. A prior visitation order did not allow Moix to have overnight visits with his son because he was struggling with an addiction to pain medication, but the court ruled that he had sought treatment and been sober for 2 ½ years.
The order said that Moix’s partner did not pose any threat to the child’s safety or welfare.
During oral arguments earlier this month, an attorney for Moix’s ex-wife defended the judge’s restriction, saying the child’s mother also has rights in deciding where her son can spend time. That attorney, Richard Worsham, also argued that the lower court had other reasons to impose the restriction, calling Moix’s relationship with his partner “volatile” and citing the past drug addiction.
“My client is pleased with the decision in regard to the fact that the Supreme Court majority felt this was an issue like, more or less, your run-of-the-mill case dealing with what’s in the best interest of the child and not (what’s) constitutional,” Worsham said.
Three of the seven justices disagreed that the Pulaski County judge had not ruled on whether the non-cohabitation policy was in the best interest of Moix’s son.
“The court quite plainly stated that ‘the best interest dictates that that be the continued policy of the Court’ to not permit overnight visitation in the presence of the child,” Associate Justice Courtney Hudson Goodson wrote in a dissenting opinion joined by Associate Justice Josephine Hart. “I would affirm the circuit court’s decision in keeping with our time-tested law.”
Associate Justice Karen Baker wrote a separate dissent, in which Hart also joined her.
During oral arguments, Moix’s attorneys said that restriction on Moix’s partner conflicts with the Supreme Court’s ruling in 2011 striking down a ban on unmarried couples adopting or fostering children. That ban, which was approved by voters in 2008, was aimed primarily at same-sex couples.
Same-sex couples can’t legally marry in Arkansas, which has a constitutional amendment defining marriage as between a man and a woman.
“At the end of the day, my duty to my client is to get the best thing I can for him, not to change social policy,” one of Moix’s attorneys, Jack Wagoner, said Thursday. “I like it if I’m able to shape social policy in a way that I think is positive, but I’m always happy when the result’s favorable to my client.”
