LITTLE ROCK, Ark. — A judge violated an Arkansas man’s constitutional rights by barring his gay partner from staying overnight when his son visits, imposing a blanket restriction on unmarried couples living together, attorneys told the state’s highest court Thursday.
Attorneys for John Moix asked the Arkansas Supreme Court during a hearing to reverse a Pulaski County judge’s decision to impose the restriction on Moix’s visits with his 12-year-old son.
In his decision, one issue the county judge cited was a practice by judges to prohibit unmarried cohabitation in the presence of children. Moix and his wife divorced in 2004, and he has lived with his partner since 2007.
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“He either has to stay with his son in a hotel or some other strange environment, or ask his partner to move out of his own home and stay elsewhere during his visitation periods,” Leslie Cooper, an attorney for the American Civil Liberties Union, told justices. “When his son is with him, he cannot have his family live together under one roof.”
Moix’s attorneys argue the restriction conflicts with the state Supreme Court’s decision in 2011 to strike down an initiated act that banned unmarried couples from fostering or adopting children. The 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.
“If this son he’s wanting to have to spend the night in his home was his adopted child, (the 2011 ruling) says he can absolutely have him there,” Jack Wagoner, an attorney for Moix, told justices. “But he can’t with his natural child. That is an inconsistency that really shouldn’t stand.”
The restriction was part of a modified visitation order issued last year for Moix. 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.
Article continues belowThe order didn’t cite other reasons for the restriction and said that Moix’s partner did not pose any threat to the child’s safety or welfare.
An attorney for Moix’s ex-wife defended the judge’s restriction, saying she also has rights in deciding where her son can spend time. He 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.
“She has some rights relative to the environment her child is exposed to,” attorney Richard Worsham said.
Judges did not indicate when they would rule in the case.
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