Chapter 8 Rights of Grandparents with Grandchildren

• Library: Arkansas Elder Law Desk Manual (2013 Ed.)

RIGHTS OF GRANDPARENTS WITH GRANDCHILDREN

Barbara Halsey

(updated by Brenda S. Wagner in 2011)

8.1 Introduction

8.2 Common law

8.3 Statutes

8.4 Derivative rights

8.5 Conditional

8.6 Subject to divestment

8.7 In the best interest of the child

8.8 Rebuttable presumption

8.9 Standing

8.10 Jurisdiction/venue

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8.1 Introduction

Beyond the obvious personal relationship which exists between a grandparent and a grandchild, the law has a set of rules to define the “legal” relationship which may exist between grandparents and grandchildren. It is important to know that the law allows a legal relationship between grandparents and grandchildren in some cases, but not in all.

Legal relationships may exist between grandparents and grandchildren when grandparents have the primary responsibility for the care and control of grandchildren resulting from custody actions and guardianship actions. A legal relationship may also exist when grandparents have been awarded visitation rights with grandchildren who are in someone else’s custody. It is this latter situation that will be the subject of emphasis in this material.

8.2 Common law

There is no common law right which would allow grandparents to be awarded visitation with their grandchildren. A good explanation of the reasoning for this position is set out in Hendershot v. Hendershot,¹ and in a 1985 article in the Arkansas Law Review by Chauncey Brummer and Era Looney.²

Under common law, grandparents might have a legal relationship with their grandchildren that stemmed from a custody proceeding – but that is a totally different matter and not a part of this material.

8.3 Statutes

It was not until 1975 that the Arkansas legislature made a provision for grandparents to be allowed to seek and be awarded visitation rights with grandchildren. Amendments followed in 1985, 1987, 1993, 1995, 2003, and 2009. Expanded discussions of the statutory history are set out in Rudolph v. Floyd³ and Hendershot v. Hendershot.⁴ The current statute, including amendments in 2009, is set out below.

Section 9-13-103 Visitation rights of grandparents when the child is in the custody of a parent

(a) For purposes of this section:

(1) “Child” means a minor under eighteen (18) years of age 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 love, affection, and guidance;

(2) The loss of the

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