State Laws and Legislation

Arkansas Custody and Visitation Law

Arkansas courts use a parent's sexual orientation to deny, restrict or modify custody and visitation. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Arkansas law states: “In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent, but solely in accordance with the welfare and best interest of the child.” In 2005, a provision was added to state law that permits the court to consider the preferences of the child if the child is of a sufficient age and capacity to reason, regardless of chronological age, on the issue of visitation.

In one 2003 case, Taylor v. Taylor, the Arkansas Supreme Court reversed a lower court's decision to transfer custody of two children from the mother to the father. One of the reasons given for this transfer was the fact that the mother's friend, a lesbian, lived in the household and that this was “inappropriate behavior.” In reversing the lower court's decision, the state Supreme Court affirmed that it “has held that a trial court did not err in determining it was not in the children's best interest for their primary custodian, who was involved in a homosexual relationship, to ‘continue cohabitating with another adult with whom she admitted being romantically involved.'” The state Supreme Court, however, distinguished the current case by noting that the mother and her friend were not romantically or sexually involved.

In Ratliff v. Ratliff, another 2003 case, the mother was awarded custody of the children and the father appealed. One of the reasons the father appealed centered on his belief that the judge erred in not considering the mother's sexual orientation. The appellate court noted that “in custody cases involving a parent's sexual activities, the focus should be on the parent's conduct, not on her sexual preference. … Therefore appellee's actions, and not her homosexuality, are of concern here.” The appellate court affirmed the trial court's award of custody to the mother. In so doing, the court noted that the children were not present during the mother's sexual activities, which begs the question of what the court would have done if the two had shared a bedroom or displayed affection in front of the children.

In 2001's Taylor v. Taylor, the parents were awarded joint custody in 1998. In 1999, the father petitioned for sole custody, alleging that the mother was living and involved in a romantic relationship with another woman. The court issued a temporary custody order that ordered the mother not to permit her partner to remain in the home or to be an overnight guest in the home when the children were present. After a hearing, the court ordered that custody remain with the mother on the condition that her partner left the home. The state Supreme Court affirmed this order, stating, “Arkansas case law simply has never condoned a parent's unmarried cohabitation … when such conduct is in the presence of a child.” The court did not address the issue that gay, lesbian and bisexual parents were not legally able to marry their same-sex partners.

In Larson v. Larson in 1995, the mother was awarded primary custody of the two children from her marriage. At some point, the mother entered into a same-sex relationship. A few years later, by agreement of both parents, one of the children went to live with the father. The father petitioned to obtain custody of both children. After two hearings, the father was granted primary custody. The mother appealed and argued that the trial court had erred in finding that she was an unfit mother based solely on her sexual orientation. The appellate court asserted that the trial court did not change the custody order solely because of the mother's sexual orientation and affirmed the change in custody. “It is apparent that the chancellor's primary focus in this regard was on appellant's conduct, not merely her status or sexual preference.” In a concurring opinion, Judge Rogers stated, “I reluctantly concur in the affirmance of the chancellor's decision. … In truth, the chancellor's own condemnation of appellant's sexual preference is apparent from his written word. … It is because of the comparative reasoning employed by the chancellor and its disparaging tone that I have some hesitation in affirming this decision. Such reasoning comes perilously close to basing a decision on punitive grounds instead of properly focusing on the welfare and emotional well-being of the children.”

In a 1987 case, Thigpen v. Carpenter, the parents were given joint custody. The father petitioned for sole custody four months later and was granted it. The mother appealed. One of her arguments was that although she was in a same-sex relationship, the father had failed to show that her sexual orientation would adversely affect the best interests of their children. However, the appellate court pointed out that the trial court correctly noted, “Arkansas courts have never condoned a parent's promiscuous conduct or lifestyle when such conduct has been in the presence of the children.” Furthermore, the appellate court noted that Arkansas courts have always presumed that illicit sexual conduct on the part of the custodial parent is detrimental. Another argument the mother put forth was that the trial court used solely her sexual orientation to deny custody. The appellate court disagreed, saying, “It is clear to us that while the appellant's homosexuality was a factor the chancellor considered, it was not the only consideration.”

Citations: ARK. CODE ANN, §9-13-101, ARK. CODE. ANN. §9-13-108; Taylor v. Taylor, 2003 Ark. LEXIS 213 (Ark. 2003); Ratliff v. Ratliff, 2003 Ark. App. LEXIS 281 (Ark. Ct. App. 2003); Taylor v. Taylor, 47 S.W.3d 222 (Ark. 2001); Larson v. Larson, 902 S.W.2d 254 (Ark. Ct. App. 1995); Thigpen v. Carpenter, 730 S.W.2d 510 (Ark. Ct. App. 1987).

Updated: Sun, October 16, 2005 - 11:00:48