Child Custody – Grandparents and Visitation
One year ago, March 2017, three grandparents’ rights bills passed an Arkansas House committee providing grandparents and great-grandparents additional legal redress if denied access to their grandchildren and great-grandchildren by the parents. The three bills were combined into one bill, House Bill 1773. Later that same month the bill failed the Senate and on April 3, 2017 was recommended for study in the Interim by Joint Committee on Aging, Children and Youth, Legislative & Military Affairs – House. Where does this leave grandparents and their rights to visitation?
HB 1773 was introduced by Laurie Rushing, R-Hot Springs. Rushing’s personal story about her three grandchildren whom at the time she had not seen in nearly a year prompted the bill. After Rushing’s daughter died, her son-in-law quickly remarried and she was later informed via email that she and her husband were no longer welcome at his house. Rushing’s case is unfortunately not a lone instance. Often times, this is the case leaving grandparents to not only feel the sorrow of losing a child, but also losing visitation to their grandchildren.
Arkansas Code Title 9. Family Law Sec. 9-13-103 addresses visitation rights of grandparents when the child is in the custody of a parent. Additionally, the code covers great-grandparents. Part B and C specifically identifies the situation in which a grandparent or great-grandparent may petition an Arkansas court:
(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.
Preponderance of evidence to establish a significant and viable relationship with the child is described in Part D and E as follows:
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(2) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months;
(3) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or
(4) 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.
If the court determines visitation rights are in the best interest of the child, it is final and the normal visitation rules will apply (unless the court sets forth other guidelines). If the custodial party fails to comply, he or she will be in contempt of court and the grandparent will have the right to file a petition in the court of law.
It is important for a grandchild to have a relationship with grandparents. If you or someone you know is suffering from the loss of visitation of grandchildren or great-grandchildren contact Kevin Hickey Law Partners today.