Cody Oldham v. David and Paula Morgan
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SUPREME COURT OF ARKANSAS
No. 07315
CODY OLDHAM
Opinion Delivered January 17, 2008
APPELLANT,
VS.
DAVID AND PAULA MORGAN
APPELLEES,
APPEAL FROM CRAIGHEAD
COUNTY CIRCUIT COURT,
NO. DR20040693,
HON. PAMELA BENITA
HONEYCUTT, JUDGE
REVERSED AND DISMISSED.
JIM GUNTER, Associate 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. § 913103 (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 grandparentvisitation 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. § 913103 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
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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 (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
grandparentvisitation 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. 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. 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,”
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but did not elaborate on the nature or extent of that “weight.” 530 U.S. at 70. See also
Robinson v. FordRobinson, 362 Ark. 232, 208 S.W.3d 140 (2005).
In Linder, we reviewed the constitutionality of Arkansas’s grandparentvisitation
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 strictscrutiny 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. § 913103,
provides:
(a) For purposes of this section:
(1) “Child” means a minor under the age of eighteen (18) of whom the
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custodian has control and who is:
(A) The grandchild of the petitioner; or
(B) The greatgrandchild 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 greatgrandparent may petition a circuit court of this
state for reasonable visitation rights with respect to his or her grandchild
or grandchildren or greatgrandchild or greatgrandchildren 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.
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(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 love, affection, and
guidance;
(2) The loss of the relationship between the petitioner and the child is likely
to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation
with the child is allowed.
(f)(1) An order granting or denying visitation rights to grandparents and
greatgrandparents shall be in writing and shall state any and all factors
considered by the court in its decision to grant or deny visitation under this
section.
Id.
This revised statute gives the parent’s decision presumptive or special weight in
deciding whether grandparent visitation is in the best interest of the child as required
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by Troxel and Linder. The statute also now requires the trial court to state its reasons
for denying or granting grandparent visitation.
Next, we must decide whether the grandparent visitation granted by the circuit
court in the present case is allowed under § 913103. According to § 913103(b)(2),
there is a presumption that Appellant’s decision in denying or limiting visitation to the
Morgans is in the best interest of Jaley. In order to rebut this presumption, the
Morgans must prove that they have established a significant and viable relationship with
Jaley and that visitation with them is in Jaley’s best interests. Pursuant to subsection
(d)(1)(C), the Morgans can establish a significant and viable relationship with Jaley by
proving that they have had frequent or regular contact with her for at least twelve
consecutive months. Appellant does not dispute that the Morgans have a significant and
viable relationship with Jaley. At the hearing, the Morgans testified that before Jaley
moved to Missouri, they saw her three or four times a week. Jaley often spent the night
with them and went to church with them on Sundays. After Jaley and her mother
moved, the Morgans saw her at least once a month, and they spoke with her on the
phone at least every other day. Therefore, pursuant to § 913103(d)(1)(C), the Morgans
do have a significant and viable relationship with Jaley.
In order to establish that grandparent visitation is in Jaley’s best interest, the
Morgans must prove that (1) the Morgans have the capacity to give the child love,
affection, and guidance; (2) the loss of the relationship between the Morgans and Jaley
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is likely to harm Jaley; and (3) that the Morgans are willing to cooperate with Appellant
if visitation with Jaley is allowed. Ark. Code Ann. § 913103(e). As Justice O'Connor
noted in Troxel, grandparental visitation has no historic roots in the common law but
rather is a legislated creature of the late twentieth century. See Linder, supra (citing
Troxel, 530 U.S. at 9697 (plurality opinion)). Because the grandparentvisitation
statute is in derogation of or at variance with the common law, it must be strictly
construed. See Recinos v Zelk, 369 Ark. 7, __ S.W.3d __ (2007).
The circuit court found that it was in the best interest of Jaley to allow
grandparent visitation with the Morgans. At the hearing the circuit court stated, “it’s
in the best interest of this child, considering her age, the circumstances of her mother’s
death, and the fact that during the last year or two of her life she was primarily with her
mother and grandparents. I think it would be very stressful for her not to have some
structured visitation.” While clearly focusing on Jaley, the circuit court never actually
made a finding that the loss of the relationship between Jaley and the Morgans would
likely result in harm to Jaley. Even if the court had, the testimony at trial does not
support such a finding. Mrs. Morgan testified at trial that she had seen Jayley seven
times from November 17, 2006 to January 29, 2007, including four overnight visits.
There was no evidence presented at trial that the relationship between the Morgans and
Jaley had been lost or would be lost. Further, Mrs. Morgan testified at the hearing:
[A]t the moment, [Appellant] is very willing to work with me and
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let me have [Jaley] as much as I want her. But I do know that people get
remarried and it does affect that relationship. I just want to know that in
five years time, if he should remarry, that I have a chance to still see her.
It is kind of more of a safeguard for the future. Right now he has been
more than willing to let me have her when I need her and want to see her.
Here, no one disputes that Appellant was allowing the Morgans to see Jaley before the
filing of the petition for grandparent visitation. According to Mrs. Morgan’s testimony
at the hearing, the petition was only filed to ensure that the Morgans would continue to
see Jaley in the future. Therefore, the petition for grandparent visitation in this case
was premature.
Because the Morgans did not prove a loss of the relationship between them and
Jaley that would likely harm Jaley, they failed to establish that courtordered visitation
was in Jaley’s best interest and therefore failed to rebut the statutory presumption.
Thus, the circuit court abused its discretion in granting grandparent visitation to the
Morgans. Accordingly, we reverse the circuit court’s order for grandparent visitation.
Reversed and dismissed.
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