Like most issues involving child custody, grandparent visitation can become an area of serious dispute. In Arkansas, such visitation rights are statutorily created via Arkansas Code § 9-13-103. In 2016, two Arkansas Court of Appeals cases have modified the analysis used for grandparent visitation disputes, emphasizing the complexity and need for caution in this area of the law.

When Will Arkansas Courts Grant Grandparent Visitation?

According to A.C.A§ 9-13-103, grandparents seeking visitation rights must overcome the court’s presumption that parents limiting or denying such visitation is in the best interests of the child. This involves a two-step process. Petitioners must show a “significant and viable relationship” with the child and that visitation with the petitioners is in the best interests of the child.

A “significant and viable relationship” may be shown in three ways: (1.) if the child resided with the petitioners for at least 6 months, (2) if the petitioners were caregivers to the child on a regular basis for at least 6 months, or (3) if the petitioners had frequent or regular contact with the child for at least 12 consecutive months. This language is read very literally.  For instance, under this first part of the analysis, it is irrelevant that a child cannot remember the 6 months she lived with her grandparents because it was several years ago; if she did live with them for 6 months, the first part of the test is satisfied.

The second prong of the test has historically been more complicated. There are three elements that indicate visitation rights are in the best interests of the child: (1) the petitioners show they have the capacity to give the child love, affection, and guidance; (2) the loss of the relationship between the petitioner and the child will likely harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation is allowed.

It was this second requirement of harm to the child that turned the recent case of Fitts v. Lively. Fitts v. Lively, 2016 Ark. App. 246 (2016). In Fitts, the Arkansas Court of Appeals denied visitation rights to grandparents largely because there was no evidence that the children would be harmed from the loss of the grand-parent relationship. Prior cases, such as Brandt v. Willhite (2007) and Bowen v. Bowen (2012), had indicated the risk of such a holding, but Fitts, by emphasizing this need and outright dismissing the grandparents’ case, further underscores the significance of the harm requirement.  Indeed, the Fitts court explicitly refused to imply a lack of harm merely because the grandparents satisfied the meaningful relationship requirement.

How May Arkansas Courts Deny Visitation?

In addition to laying out the test for establishing a case for visitation rights, this Arkansas statute also details that when denying a request for grandparent visitation, a court’s order must include in writing “any and all factors considered by the court in its decision.” In the recent case of Schwartz v. Lobbs, the court emphasized this need, reversing and remanding a denial of visitation rights when the order lacked proper written findings and stated only that a petition for visitation was “hereby denied.” Schwartz v. Lobbs, 2016 Ark. App. 242 (2016).

The Schwartz court noted it was departing from previous decisions that had decided grandparent visitation disputes without such findings.  However, it distinguished the case at hand because in Schwartz, it was “not entirely clear” that the trial court’s decision was the only decision available as a matter of law. That is, when a case could go either way in terms of its holding, the court must now specifically outline the reasons for (and thus the factors behind) its decision or risk reversal.

Implications for Arkansas Law on Grandparent Visitation

Both Fitts and Schwartz show the Court of Appeals reading § 9-13-103 quite carefully and literally. While prior cases may have allowed for more implication and flexibility regarding grandparent visitation, 2016’s Court of Appeals cases have thus far emphasized strict adherence to statutory law in terms of both the substance of a case (e.g. Fitts’s emphasis on proving each element of a child’s best interests individually) and the procedure of a decision (e.g. Schwartz’s requirement of a sufficient written order).