Lesbian Co-Mother Awarded Visitation by Arkansas Supreme Court

Filed under: Divorce & Custody, Gay Parenting, In The News

lesbian mother Arkansas

Visitation isn't a given for the non-biological parent in a same-sex partnership. Credit: David McNew, Getty Images

A visitation battle can be a nasty affair when a heterosexual couple splits up, but in same-sex couples, visitation and custody rights are not legally assured in many U.S. states. However, a legal victory for one lesbian co-mom may be proof of shifting attitudes.

In Arkansas –- a state that prohibits adoption by co-habitating gay and lesbian couples -– the state Supreme Court has granted visitation rights to the former partner of a lesbian mother whose child she helped planned for and was the primary caregiver for when she was an infant, Gay City News reports.

Partners Alicia Bethany and Emily Jones lived together in Arkansas from 2000 to 2008. In 2004, the couple enlisted one of Jones' friends to donate sperm so they could conceive a child, which they agreed Bethany would carry.

After their daughter was born in 2005, Bethany returned to work and Jones stayed home as the primary caregiver. Jones' parents even cared for the little girl occasionally, whereas Bethany was out of touch with her family, the News reports.

When the couple broke up in 2008, they agreed that Jones would continue to co-parent their daughter. However, Bethany later cut Jones' visitation because she kept the little girl out longer than the 24-hours she had been allotted.

In response, Jones sued Bethany for legal guardianship of the little girl, though she later reduced her demand to visitation only. Bethany refused, saying Jones wasn't the child's biological or adoptive parent and therefore had no rights under Arkansas law, the newspaper reports.

During the trial, both women testified that they had planned to raise their daughter together, and Bethany even admitted she considered Jones to be the girl's other mother when she was born. Both women made claims as to the health and stability of the other.

County Circuit Judge Vann Smith ruled that visitation with Jones would be in the little girl's best interests, even though Bethany objected. Bethany's lawyers argued that Jones' relationship with the little girl was analogous to that of a grandparent, who would have no legal rights to visitation under the law, reports the News.

However, Smith's decision was based on Arkansas case law involving the legal concept of "in loco parentis," which refers to an individual who assumes parental status and responsibilities for another person -– typically a young child -- without a formal adoption.

In upholding Smith's decision, the state Supreme Court ruled that Jones' relationship with the child was more analogous to that of a step-parent -- who would have legal standing under Arkansas law -- than a grandparent.

It is possible that Bethany may seek an appeal from the U.S. Supreme Court, the newspaper reports.

The case is notable in that, politically, the state of Arkansas is not considered a friendly outpost for same-sex couples seeking the same rights as married couples.

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