The Arkansas Supreme Court rules that the state's Grandparent Visitation Act, which permits visitation when a court determines that it would be in the best interest of the child, is unconstitutional as applied to the case of a fit mother who wished to bar all visitation. Linder, et al. v. Linder (Ark., No. 01-380, April 25, 2002).
Lea Ann and Steven Linder had one child, Brandon, born in 1995. Following Steven's untimely death in 1997, relations grew progressively more strained between Lea Ann and Steven's father, Bill, over Bill's visitation with Brandon. Eventually, Bill filed a petition for visitation. On August 27, 1998, the trial court ruled that it was in Brandon''s best interests to grant Bill''s petition. Lea Ann failed to comply, Bill filed a number of motions for contempt and Lea Ann fled the jurisdiction with her son. Lea Ann surrendered about a year later and temporarily lost and then regained custody of Brandon, while Bill was allowed the standard visitation associated with non-custodial parents.
On June 8, 2000, Lea Ann moved to have Arkansas' Grandparent Visitation Act (GPVA) declared unconstitutional in light of the United States Supreme Court''s opinion in Troxel v. Granville, 530 U.S. 57 (2000). The GPVA provides that visitation rights may be granted when a court determines that such an order would be in the best interest and welfare of the minor. On August 9, 2000, the trial court declared the Arkansas GPVA to be constitutional as applied and on its face. The order awarded custody of Brandon to Lea Ann and found her to be a fit mother. However, the trial court denied Lea Ann''s request to move out of state and required the posting of a $20,000 bond assuring the court that she would not flee the jurisdiction and that she would allow the visitation that Bill had been awarded. Lea Ann appealed.
The Arkansas Supreme Court reverses, holding that the GPVA is unconstitutional as applied because it violates Lea Ann''s fundamental liberty interest under the due process clause. The court observes that the trial court found Lea Ann to be a fit mother in all respects other than in her ability to decide visitation matters. The court rules that this does not warrant intrusion on a parent's fundamental parenting right and fails to overcome the presumption in the parent''s favor. So long as Lea Ann is fit to care for Brandon on a day-to-day basis, the court writes the Fourteenth Amendment right attaches, and the State may not interfere without a compelling interest to do so. . . There must be some other special factor such as harm to the child or custodial unfitness that justifies state interference. The court also rejects Bill's contention that Troxel is inapposite because in that case the parent was agreeable to some visitation while Lea Ann refused all visitation. The court opts for dismissal, preferring to leave the task of rewriting the GPVA to the Arkansas legislature.
For the full-text of this decision, go to: https://courts.state.ar.us/opinions/2002a/20020425/01-380.html
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