LITTLE ROCK—A federal judge ruled Thursday that a couple should pursue in state court their challenge of a rule that would prohibit them from adopting an infant because they are older than 40.

A lawyer for the couple said after the hearing that the state said it intended to move the infant to a different home, for reasons other than the age of the would-be parents.

A 53-year-old woman and her 44-year-old husband sued under the names John and Jane Doe to challenge a state Department of Human Services rule that would block them from adopting a baby. At a hearing before U.S. District Judge Susan Webber Wright, the Does’ lawyer argued for a temporary injunction to block enforcement of the rule and prevent the baby, now almost 4 months old, from being placed with another family.

But Wright said that the Does had to prove they would suffer irreparable harm by her not granting the injunction. She cited a filing by the state judge saying the baby would adjust if she is moved to a new family and the fact that the adoption attempt had not moved far enough through the legal process to have been denied.

Wright said the Does would have “adequate opportunity” to make their case in state court.

“The Does have not yet been harmed by this,” Wright said.

The judge said that, if she were to rule, she would be addressing a threat to the Does, not an actual harm.

“This is not easy for me because it pulls at one’s heartstrings,” Wright said. “I just can’t give an advisory opinion.”

Martin Bowen said after the proceeding that DHS had informed his clients that the infant was to be placed with another family. He said they were told that the new family was “more stable.” Bowen scoffed at the notion that his clients don’t provide a stable home for the infant.

The DHS didn’t cite the age rule in its decision, he said.

The Arkansas Department of Human Services has a policy that bans couples older than 40 from adopting infants in foster care. DHS spokeswoman Julie Munsell said the policy has been in place at least 30 years. The policy specifies that people ages 21-40 can adopt infants who are in the state’s custody. Children under 1 are considered to be infants.

Foster children who are 1 and older can be adopted by people under 55 years old.

The Does took in the baby after the biological mother abandoned her.

Wright said she would issue a written order based on her comments from the hearing. Wright dismissed the case “without prejudice,” meaning the issue could be heard in full if circumstances change.

The Does sought a temporary injunction that would have stopped the state from taking the baby and placing her in a home with younger parents while the constitutional issue was pending.

Munsell said the state occasionally grants waivers of the age rule, particularly in cases when the infant can be placed with relatives.

The Does sought a waiver and were denied, Bowen said.

The couple attempting to adopt the baby were not identified because the lawsuit involves a juvenile custody matter. Wright ordered at the hearing that portions of the record that would identify the child would be kept under seal.