Stay away order

[Ohiogal]

Oh I found it but that is NOT the name of the case.
Arkansas Dept. of Human Services v. Cole, 2011 Ark. 145, 10-840 (ARSC)

Appellants, the Arkansas Department of Human Services and its Director and his successors, and the Arkansas Child Welfare Agency Review Board and its Chairman and his successors, appeal an Order and Judgment ruling Initiated Act 1 unconstitutional as a violation of fundamental privacy rights implicit in the Arkansas Constitution. Appellee Sheila Cole and the other appellees also cross-appeal against the state appellants and the intervenor appellants on certain other constitutional issues raised in their complaint that were dismissed by the circuit court. We affirm the circuit court's ruling that Act 1 is unconstitutional as a violation of fundamental privacy rights under the Arkansas Constitution. W e decline to reach the issues raised on cross-appeal, as they are moot.

On November 4, 2008, a ballot initiative entitled "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old" was approved by fifty-seven percent of Arkansas voters. The ballot initiative is known as the Arkansas Adoption and Foster Care Act of 2008 or "Act 1." Act 1 went into effect on January 1, 2009, and is now codified at Arkansas Code Annotated sections 9-8-301 to -305.

Under Act 1, an individual is prohibited from adopting or serving as a foster parent if that individual is "cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state." Ark. Code Ann. § 9-8-304(a) (Repl. 2009). This prohibition on adoption and foster parenting "applies equally to cohabiting opposite-sex and same-sex individuals." Ark. Code Ann. § 9-8-304(b). Act 1 further provides that the "public policy of the state is to favor marriage as defined by the constitution and laws of this state over unmarried cohabitation with regard to adoption and foster care." Ark. Code Ann. § 9-8-302 (Repl. 2009). Act 1 also declares that "it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." Ark. Code Ann. § 9-8-301 (Repl. 2009).

That is what the case was about. IT HAS NOTHING TO DO WITH A NO PARAMOUR ORDER. Quite frankly it does not apply to this situation at all where a person is married and engaged in adultery AND brings the adulterous lover around the children. This was about who could adopt and/or be foster parents. The requirement was that cohabitating couples were not allowed to adopt or foster. Someone engaged in a adulterous affair in the midst of a custody battle and divorce would NOT qualify as a foster or adoptive parent.

And no one is saying that the prohibition would extend BEYOND the final decree of the divorce. But during the divorce the court could order NO CONTACT with the adulterous lover/paramour/bedbuddy or what have you.

Also here is what the court stated regarding cohabitation in that case:

III. Cohabitation in Family Law Cases

The State and FCAC base a considerable part of their argument on their assertion that Arkansas courts disfavor cohabitation by a parent in the presence of children following a divorce and in many cases condition custody of children on non-cohabitation agreements. They then assert that Act 1 is no more an invasion of Cole's privacy rights than non-cohabitation agreements in child-custody cases and corresponding court orders are on divorced biological parents' privacy rights.

On this point, the State and FCAC rely heavily on this court's decision in Alphin v. Alphin, 364 Ark. 332, 219 S.W .3d 160 (2005), and quote from it to the effect that extramarital cohabitation in the presence of children "has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a m a terial change in circumstances warranting a change of custody." Id. at 340, 219 S.W.3d at 165. Yet, upon reviewing the change of custody in Alphin, this court recognized that the primary consideration in child-custody cases is the best interest of the child and that all other considerations are secondary.

In fact, the Supreme Court differentiated this case from a noncohabitation order in custody cases:

To arrive at what is in the child's best interest, the circuit courts and state agencies look at all the factors, including a non-cohabitation order if one exists, and make the best-interest determination on a case-by-case basis.

Oh and to continue:

But in addition to case-by-case analysis, there is another difference between cohabitation in the child-custody or dependency-neglect context and cohabiting sexual partners who wish to adopt or become foster parents. Third-party strangers who cohabit with a divorced parent are unknown in many cases to the circuit court and have not undergone the rigorous screening associated with foster care or adoption. By everyone's account, applicants for foster care must comply with a raft of DHS regulations that include criminal background checks, home studies, family histories, support systems, and the like. Adoption, under the auspices of the trial court, requires similar screening. Unsuitable and undesirable adoptive and foster parents are thereby weeded out in the screening process.[4] The same does not pertain to a third-party stranger who cohabits with a divorced or single parent.

So this ruling does NOT apply to custody disputes or cohabitation in this instances. And it definitely does NOT state you cannot have a no paramour order issued. In fact it allows for such orders.

So again, HOW does this case help your argument? Oh yeah, it doesn't. It proves my point that he could get a no paramour order or even an order prohibiting cohabitation after the divorce. Reading is FUNDAMENTAL.

You got the case name wrong. You got the parties wrong. You got the point of the case wrong. Not much you actually got right. I won't hold my breath waiting for you to admit how wrong you were.

 

[Ohiogal]

OP, file for a no paramour order that restricts both parents from bringing their adulterous lovers around the children during the pendency of the divorce. Ask that it go into effect immediate. Also file for sole possession of the marital residence during the duration of the divorce and primary custody of your children. And ignore dmcc.

 

[dmcc10880]

OP, file for a no paramour order that restricts both parents from bringing their adulterous lovers around the children during the pendency of the divorce. Ask that it go into effect immediate. Also file for sole possession of the marital residence during the duration of the divorce and primary custody of your children. And ignore dmcc.

LOL. Good advice to the OP OhGal. He can spend all the money he wants and get the outcome I suggested. Oh, and how does one file for a no-paramour clause in a state that really doesn't acknowledge such clauses?

 

[mistoffolees]

LOL. Good advice to the OP OhGal. He can spend all the money he wants and get the outcome I suggested. Oh, and how does one file for a no-paramour clause in a state that really doesn't acknowledge such clauses?

First, you said that the kids would have to move out if Dad got possession of the house - which is not true.

Second, who says that Arkansas doesn't acknowledge no-paramour clauses. Oh, yeah - that was you - just before OG proved that you were wrong.

 

[dmcc10880]

First, you said that the kids would have to move out if Dad got possession of the house - which is not true.

Second, who says that Arkansas doesn't acknowledge no-paramour clauses. Oh, yeah - that was you - just before OG proved that you were wrong.

You're just so wrong. Even in Texas, where they can put non-paramour clauses in, they are seldom, if ever enforced.

If Dad got possession of the house and mom has custody of the kids, what are the kids to do? Right. Go with mom and out of the house.

OG didn't prove anything in his/her posts. He/she just proved his/her inability to look at the case I suggested and didn't even get the case right. It is Cole v. Arkansas.

That's ok. You all know better.

 

[futuredust]

Oh, and how does one file for a no-paramour clause in a state that really doesn't acknowledge such clauses?

Since when?

 

[Proserpina]

You're just so wrong. Even in Texas, where they can put non-paramour clauses in, they are seldom, if ever enforced.

If Dad got possession of the house and mom has custody of the kids, what are the kids to do? Right. Go with mom and out of the house.

OG didn't prove anything in his/her posts. He/she just proved his/her inability to look at the case I suggested and didn't even get the case right. It is Cole v. Arkansas.

That's ok. You all know better.

When it comes to your posts? Generally yeah - we do.

Did you even READ what OG posted?

 

[mistoffolees]

You're just so wrong. Even in Texas, where they can put non-paramour clauses in, they are seldom, if ever enforced.

Maybe you failed 3rd grade Geography, but Texas and Arkansas are different states. Glad I could clear that up for you.

If Dad got possession of the house and mom has custody of the kids, what are the kids to do? Right. Go with mom and out of the house.

And why are you assuming that Mom would get custody of the kids? There's absolutely nothing to suggest that to be the case.

If Dad gets the house, he has two things going for him - the kids would be able to stay where they are and Mom is apparently more interested in scratching her itch than taking care of the kids.

Whether that's enough depends on other factors, of course, but your assumption that Mom would automatically get custody is blatantly sexist and not supported by facts.

OG didn't prove anything in his/her posts. He/she just proved his/her inability to look at the case I suggested and didn't even get the case right. It is Cole v. Arkansas.

The case OG cited says:
"To arrive at what is in the child's best interest, the circuit courts and state agencies look at all the factors, including a non-cohabitation order if one exists, and make the best-interest determination on a case-by-case basis."

So the supreme court says that non-cohabitation clauses must be considered. How can the do that if there is no such thing as a no-cohabitation clause?

 

[dmcc10880]

Maybe you failed 3rd grade Geography, but Texas and Arkansas are different states. Glad I could clear that up for you.



And why are you assuming that Mom would get custody of the kids? There's absolutely nothing to suggest that to be the case.

If Dad gets the house, he has two things going for him - the kids would be able to stay where they are and Mom is apparently more interested in scratching her itch than taking care of the kids.

Whether that's enough depends on other factors, of course, but your assumption that Mom would automatically get custody is blatantly sexist and not supported by facts.



The case OG cited says:
"To arrive at what is in the child's best interest, the circuit courts and state agencies look at all the factors, including a non-cohabitation order if one exists, and make the best-interest determination on a case-by-case basis."

So the supreme court says that non-cohabitation clauses must be considered. How can the do that if there is no such thing as a no-cohabitation clause?

Umm... first, I live in Texas. No need to quiz me on geography.

Second, try enforcing a non-paramour order. Texas totally allows it. Cole V. Arkansas defines it in that state.

IT DOESN"T WORK!!!

Now, and let me just ask you to hush your muffin!

 

[Ohiogal]

Umm... first, I live in Texas. No need to quiz me on geography.

Second, try enforcing a non-paramour order. Texas totally allows it. Cole V. Arkansas defines it in that state.

IT DOESN"T WORK!!!

Now, and let me just ask you to hush your muffin!

Let us speak in one piece words so that you will get it.
Cole v. Arkansas (DANGIT more than one piece) is NOT the case name. I put stuff from that case up there and this was from the high court in the case you state:

III. Cohabitation in Family Law Cases

The State and FCAC base a considerable part of their argument on their assertion that Arkansas courts disfavor cohabitation by a parent in the presence of children following a divorce and in many cases condition custody of children on non-cohabitation agreements. They then assert that Act 1 is no more an invasion of Cole's privacy rights than non-cohabitation agreements in child-custody cases and corresponding court orders are on divorced biological parents' privacy rights.

On this point, the State and FCAC rely heavily on this court's decision in Alphin v. Alphin, 364 Ark. 332, 219 S.W .3d 160 (2005), and quote from it to the effect that extramarital cohabitation in the presence of children "has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment for children, and may of itself constitute a m a terial change in circumstances warranting a change of custody." Id. at 340, 219 S.W.3d at 165. Yet, upon reviewing the change of custody in Alphin, this court recognized that the primary consideration in child-custody cases is the best interest of the child and that all other considerations are secondary.

and:

To arrive at what is in the child's best interest, the circuit courts and state agencies look at all the factors, including a non-cohabitation order if one exists, and make the best-interest determination on a case-by-case basis.

and:

But in addition to case-by-case analysis, there is another difference between cohabitation in the child-custody or dependency-neglect context and cohabiting sexual partners who wish to adopt or become foster parents. Third-party strangers who cohabit with a divorced parent are unknown in many cases to the circuit court and have not undergone the rigorous screening associated with foster care or adoption. By everyone's account, applicants for foster care must comply with a raft of DHS regulations that include criminal background checks, home studies, family histories, support systems, and the like. Adoption, under the auspices of the trial court, requires similar screening. Unsuitable and undesirable adoptive and foster parents are thereby weeded out in the screening process.[4] The same does not pertain to a third-party stranger who cohabits with a divorced or single parent.

I get that the court used big words and that they made you feel dumb -- we get the fact that you are dumb as you did not read the case. Oh and the case name is:
Arkansas Dept. of Human Services v. Cole, 2011 Ark. 145, 10-840 (ARSC)

The big words make you feel bad, I know. Dang words with more than one piece to them. Poor dmcc.

 

[Ohiogal]

For the more intelligent posters, the proper citation for the case DMCC keeps hollering for is:
Arkansas Dept. of Human Services v. Cole, 2011 Ark. 145, 10-840 (ARSC)

That is the case with Sheila Cole as one of the parties. Please note where it states: Cite as 2011 Ark. 145

The full caption is:

THE ARKANSAS DEPARTMENT OF
HUMAN SERVICES AND JOHN M.
SELIG, DIRECTOR, IN HIS OFFICIAL
CAPACITY, AND HIS SUCCESSORS IN
OFFICE, AND THE CHILD WELFARE
AGENCY REVIEW BOARD AND
JAMES W. BALCOM, CHAIRMAN, IN
HIS OFFICIAL CAPACITY, AND HIS
SUCCESSORS IN OFFICE,
APPELLANTS/CROSS-APPELLEES,
AND
FAMILY COUNCIL ACTION
COMMITTEE AND ITS PRESIDENT
JERRY COX,
INTERVENOR APPELLANTS/CROSSAPPELLEES,
VS.
SHEILA COLE, ON HER OWN
BEHALF, AND BY, FOR AND ON
BEHALF OF HER GRANDDAUGHTER
W.H.; STEPHANIE HUFFMAN AND
WENDY RICKMAN; FRANK PENNISI
AND MATT HARRISON; MEREDITH
SCROGGIN AND BENNY SCROGGIN,
ON THEIR OWN BEHALVES, AND BY,
FOR AND ON BEHALF OF THEIR
TWO CHILDREN, N.S. AND L.S.;
SUSAN DUELL-MITCHELL AND
CHRIS MITCHELL, ON THEIR OWN
BEHALVES, AND BY, FOR AND ON
Opinion Delivered 4-7-11
BEHALF OF THEIR TWO CHILDREN,
N.J.M. AND N.C.M.; CURTIS
CHATHAM AND SHANE FRAZIER;
AND S.H., R.P., AND E.P., BY AND
THROUGH THEIR NEXT FRIEND,
OSCAR JONES,
APPELLEES/CROSS-APPELLANTS

The fact that DMCC is thick and refuses to actually read the case he keeps hollering about -- everything I posted was from that CASE that he suggested, just goes to prove that he can't read and has no credibility. OP do yourself a favor and ignore him.

Since I gave you the proper citation you can all read it for yourself. Here is the website it is on:
http://metroweekly.com/poliglot/ArkDeptHumanSrvcsCole.pdf

You will find all that I posted above. On page 15 is where I began quoting from -- there is a subsection on Cohabitation in family law.

Go figure. So now how am I wrong, DMCC? You stated State v. Cole, meaning SHEILA Cole per your posts. That is this case. It was decided in August 2011. What else would you like to know? Reading is fundamental. It's also fun proving you mental.

 

[futuredust]

Umm... first, I live in Texas. No need to quiz me on geography.

Second, try enforcing a non-paramour order. Texas totally allows it. Cole V. Arkansas defines it in that state.

IT DOESN"T WORK!!!

Now, and let me just ask you to hush your muffin!

And I live in Arkansas. You are wrong.

A court order is a court order is a COURT ORDER.

If there is a no paramour in the court order and it is not followed it can be used as a change of circumstance, thus (possibly) resulting in a custody change. Or at the very least contempt of the court order.

As has been said a thousand times here, Court Orders are just that, ORDERS... not suggestions. If someone wants to ignore a court order they should be prepared to defend their stance in front of a judge.

 

[mistoffolees]

Maybe you failed 3rd grade Geography, but Texas and Arkansas are different states. Glad I could clear that up for you.

Umm... first, I live in Texas.

Well, that explains why you failed third grade geography.

 

[stealth2]

Further, as stipulated by the AK Supreme Court, in Cole V. Arkansas, little chance of a no paramour clause.

Why would Alaska (AK) have any say on a case in Arkansas (AR)? WHat were you saying about your knowledge of geography?

Now, and let me just ask you to hush your muffin!

Please do not use that phrase. My kiddo only allows certain people to use it. You're not one of them. Thank you.

 

[LdiJ]

Guys and Gals....

All of this info is great, but the OP still hasn't come back to tell us how long he has been out of the marital home, where they are in the divorce process, and whether or not temporary orders have already been made.

If they are far enough along that mom has temporary possession of the house and temporary custody of the children, a lot of this advice could be moot. If the next hearing is the final hearing, a no paramour clause could be moot as well.