BISMARCK-The North Dakota Supreme Court heard arguments Thursday in the case of a lesbian mother who believes a district judge inappropriately used her sexuality as grounds for deciding not to let her child live with her the majority of the time.

The mother, Ashlie Carnes of Harvey, is appealing the decision of Bismarck-based Judge Gail Hagerty, who split custody equally between Carnes and the child's father, Robin Snider of Bismarck.

Carnes, who asked the state Supreme Court to designate her as the child's main caregiver, argues that the judge's decision to grant shared custody can only be explained "through an improper presumption against Carnes because she is in a same-sex marriage," according to the case summary.

The judge found that neither parent was clearly better for the child, who was born in 2012. And in her findings, the judge wrote that Carnes' same-sex marriage was "simply a non-issue when deciding parenting issues."

In a 1981 decision, the state Supreme Court ruled that a parent's homosexuality can be used as grounds to grant custody to the other parent. Carnes attorney, Lynn Boughey, brought up this case, known as Jacobson v. Jacobson, during his argument Thursday.

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But justices were quick to point out that Hagerty, in making her decision, did not reference the Jacobson case, which was overruled by a 2003 decision in another case, Damron v. Damron. In that case, the state Supreme Court ruled that a parent's homosexuality could not be the basis for a custody decision without proof the child was harmed by the parent's same-sex relationship.

Still, Boughey asked the justices to provide a more explicit ruling on the issue. "We think Jacobson should be clearly and unequivocally overruled," Boughey said.

The father's attorney, Thomas Jackson, told the justices that the mother was the first to bring up her same-sex relationship during trial. And Jackson said this relationship was not used to question her moral fitness as a parent.