Oldham v. Morgan

• Decision Date: 17 January 2008
• Docket Number: No. 07-315.,07-315.
• Citation: 372 Ark. 159,271 S.W.3d 507
• Parties: Cody OLDHAM, Appellant, v. David and Paula MORGAN, Appellees.
• Court: Arkansas Supreme Court

271 S.W.3d 507

372 Ark. 159

Cody OLDHAM, Appellant, v. David and Paula MORGAN, Appellees.

No. 07-315.

Supreme Court of Arkansas.

January 17, 2008.

Mark Rees, Jonesboro, for appellant.

Michael A. Lilly, Jonesboro, for appellee.

JIM GUNTER, Justice.

This appeal arises from the February 21, 2007, order of the Craighead County Circuit Court granting grandparent visitation to Appellees David and Paula Morgan ("the Morgans"). We reverse the circuit court's order of grandparent visitation because the Morgans failed to rebut the statutory presumption that a custodian's decision denying or limiting visitation to the petitioner is in the best interest of the child. See Ark.Code Ann. § 9-13-103 (Supp.2005).

Jaley Oldham was born on April 24, 2003, to Felicia Morgan and Appellant Cody Oldham. Felicia and Jaley were living with Appellant until January 2006 when Felicia moved to Missouri to take a better job. On July 25, 2006, the Craighead County Circuit Court established joint custody, awarding primary custody of Jaley to Felicia and awarding visitation to Appellant. Felicia was killed in a car accident on November 17, 2006. Thereafter, Jaley began living with Appellant. On December 1, 2006, the circuit court granted full custody of Jaley to Appellant. On December 20, 2006, Jaley's maternal grandparents, the Morgans, filed a petition for grandparent visitation asking the circuit court to establish specific visitation rights, specifically asking for the Revised Minimum Chancery Court Visitation Schedule. In the petition, the Morgans asserted that granting them visitation was in the best interest of Jaley.

On February 21, 2007, the circuit court found that, while Appellant was a fit parent, it was in the best interest of Jaley to grant the Morgans grandparent-visitation rights. The circuit court awarded the Morgans visitation consisting of every other weekend from February 9, 2007, to July 2007. The circuit court awarded them visitation on the second weekend of every month beginning in August 2007. The circuit court's order further provided that the Morgans were entitled to holiday visitation in accordance with the Revised Circuit Court Visitation Schedule and summer visitation. Appellant now brings this appeal.

For his sole point on appeal, Appellant argues that the circuit court erred in granting the Morgans grandparent visitation. Specifically, Appellant asserts that, pursuant to Arkansas case law, a fit parent has a fundamental right under the Fourteenth Amendment to be free from state intrusion on his or her parenting of a minor child. Appellant further contends that he allowed the Morgans to visit with Jaley, and that the Morgans only began these proceedings because they wanted a structured schedule for the future.

The Morgans respond, arguing that the circuit court was correct in granting them visitation pursuant to Ark.Code Ann. § 9-13-103 because they have had frequent contact with Jaley throughout her life, seeing the child three to four times per week prior to her mother's move to Missouri, and at least one visit per month thereafter. The Morgans further assert that their visitation with Jaley is in the best interest of the child, especially given her young age and the recent death of her mother.

As a rule, when the setting of visitation is at issue, we will not reverse the court absent an abuse of discretion. Davis v. Davis, 248 Ark. 195, 451 S.W.2d 214 (1970). Abuse of discretion is discretion applied thoughtlessly, without due consideration, or improvidently. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). However, a circuit court's conclusion of law is given no deference on appeal. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005).

Appellant relies on Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), for his assertion that the circuit court erred in interfering with his decisions concerning Jaley's visitation with the Morgans. In Troxel, a plurality of the United States Supreme Court held that the State of Washington's grandparent-visitation statute was unconstitutional as applied in that case due in large part to its "breathtakingly broad" scope allowing "any person" to petition for visitation "at any time." 530 U.S. at 67, 120 S.Ct. 2054. The central problem with that statute, according to the plurality, was that it failed to accord a fit parent's decision "any presumption of validity or weight whatsoever." Id. The Court recognized the presumption that a fit parent acts in the best interest of his or her child. 530 U.S. at 68, 120 S.Ct. 2054. In light of this presumption, the court held that a court that reviews a fit parent's decision regarding grandparent visitation "must accord at least some special weight to the parent's own determination," but did not elaborate on the nature or extent of that "weight." 530 U.S. at 70, 120 S.Ct. 2054. See also Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005).

In Linder, we reviewed the constitutionality of Arkansas's grandparent-visitation statute in light of the holding in Troxel, and held that it was unconstitutional as applied. Like the statute reviewed in Troxel, our statute failed to give any presumptive or special weight to a parent's decision that grandparent visitation was not in the best interest of the child. Further, our statute required that the court issue written findings when denying visitation, but not when granting visitation, implicitly placing the burden of proof on the parent, in direct contravention of Troxel. The trial court had already determined that the mother in Linder was a fit parent for all purposes except determining visitation. Applying a strict-scrutiny standard, we held that the Fourteenth Amendment right of due process attached and special weight should have been accorded to the mother's decision. However, we declined to rewrite our Grandparent Visitation Act (GPVA), stating that such a task was best left to the General Assembly.

The Arkansas General Assembly rewrote the GPVA, adding a statutory presumption that the parent's decision to deny or limit visitation is in the best interest of the child. See Act 652 of 2003. This revised statute, Ark.Code Ann. § 9-13-103, provides:

(a) For purposes of this section:

(1) "Child" means a minor under the age of eighteen (18) of whom the custodian has control and who is:

(A) The grandchild of the petitioner; or

(B) The great-grandchild of the petitioner;

(2) "Counseling" means individual counseling, group counseling, or other intervention method;

(3) "Custodian" means the custodial parent of the child with the authority to grant or deny grandparental visitation;

(4) "Mediation service" means any formal or informal mediation; and

(5) "Petitioner" means any individual who may petition for visitation rights under this section.

(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:

(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;

(2) The child is illegitimate and the petitioner is a maternal grandparent of the illegitimate child; or

(3) The child is illegitimate, the petitioner is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.

(c)(1) There is a rebuttable presumption that a custodian's decision denying or limiting visitation to the petitioner is in the best interest of the child.

(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:

(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and

(B) Visitation with the petitioner is in the best interest of the child.

(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:

(1)(A) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;

(B) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months; or

(C) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or

(2) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.

(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:

(1) The petitioner has the capacity to give the child...