Arkansas Supreme Court: Cohabitation Cannot Be Used To Deny Child Custody

The Arkansas Supreme Court has just ensured the protection of children being raised by unmarried parents, including same-sex couples, whose relationships are not recognized by the state constitution. According to the ruling, a domestic partnership cannot be used to deny visitation to a child’s parent’s partner.

The decision stems from a case in which John Moix was allowed to have his son for overnight visitation, but the state’s law requiring a “non-cohabitation restriction” prevented his same-sex partner, Chad Cornelius, from being present for the visits. The lower court enforced this restriction despite finding that the partner posed “no threat to the health, safety, or welfare” of Moix’s son (“R.M.”). The Supreme Court decided, then, to send the case back to the circuit court to determine whether prohibiting Cornelius from being present for overnight visits is actually in R.M.’s best interest:

We agree with appellant that 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.

In the present case, the circuit court found from the evidence presented that appellant and his partner are in a long-term, committed romantic relationship and that “Mr. Cornelius poses no threat to the health, safety, or welfare of the minor child.” The court further found that, “[o]ther than the prohibition of unmarried cohabitation with a romantic partner in the presence of the minor child, there are no other factors that would militate against overnight visitation.” However, because the circuit court also stated that the mandatory application of our public policy against unmarried cohabitation required it to include a non-cohabitation provision, it made no finding on whether such a provision was in the best interest of R.M. Therefore, we reverse and remand for the circuit court to make this determination.

This is not the end of the case, as the lower court could still determine that it’s in R.M.’s best interest that his father’s romantic partner not be present. It nevertheless represents an important precedent that will allow courts to determine what’s best for children on a case-by-case basis, sparing same-sex couples from always being discriminated against in such circumstances.


Moix and Cornelius have indicated interest in traveling to Iowa to marry, but their circumstances would not change in this case because the Arkansas constitution would prohibit recognition of that union.

(HT: Kathleen Perrin.)