Arkansas statutes dealing with grandparent visitation are relatively long and detailed. Grandparents may request visitation if the parents' marital relationship has been severed by death, divorce, or legal separation. In addition, visitation may be requested if the child is in the custody or under the guardianship of a person other than a natural or adoptive parent, or if the child is illegitimate.
In the case of an illegitimate child, a paternal grandparent may request visitation only if paternity has been established in court.
Grandparents may not seek visitation in Arkansas if the parents of the grandchild in question are still married and thus in what is known as an intact family. Also, they may not seek visitation if the parents' rights have been terminated in court.
The Best Interest and Harm Standards
As in all of the United States, Arkansas courts must decide that a visitation order would be in the best interest and welfare of the child. If a parent or guardian has denied visitation as not being in the best interest of the child, the grandparent seeking visitation must rebut that presumption.
In addition, the grandparent must document a "significant and viable" relationship with the child. Such a relationship is presumed to have existed if the child resided with the grandparent for six or more months, the grandparent was the caregiver for six or more months or the grandparent had "frequent or regular" contact with the child for twelve or more months.
In order to show that visitation is in the child's best interest, the grandparent must demonstrate all three of the following: an ability to give the child "love, affection and guidance"; the harm to the child that would result if visitation is denied; and a willingness to cooperate with the parent or other person having custody.
Obviously, the hardest requirement for grandparents to meet is the requirement to show harm if contact is denied. That is called the harm standard, and although different states may interpret this requirement differently, it can be very difficult to demonstrate that a child will suffer actual harm if visitation is denied.
Some Relevant Cases
In 2002 the U. S. Supreme Court's finding in Troxel v. Granville severely diminished grandparents' ability to win visitation. The court basically declared that parents who cut off grandparents from seeing their grandchildren are presumed to be acting in the best interest of the children. The burden of proof to prove otherwise rests with the grandparents.
Following Troxel v. Granville, many states faced challenges that their grandparent visitation statutes were unconstitutional. Arkansas faced such a challenge in the case of Linder v. Linder, which was ultimately heard by the Arkansas Supreme Court. The Arkansas court found that Arkansas' law was constitutional on its face, but had been applied unconstitutionally. As it had been applied, it failed to give sufficient weight to the wishes of the parent. The court contrasted the "fundamental right" of a parent to raise a child with the "statutorily created procedure" for winning grandparent visitation rights, obviously favoring parental rights.
The court urged that the law be revised to align it with the doctrine in Troxel v. Granville. The law was revised in 2003 and again in 2009.
The law as it now reads is stringent enough to cause Arkansas to be classified as a restrictive state with regard to grandparents' rights. This designation is primarily because the law requires a showing of harm to the child if visitation is denied.
The 2012 case of Bowen v. Bowen demonstrates that Arkansas courts take the harm standard seriously. The Arkansas Court of Appeals found that a lower court had ignored the wishes of a parent "based solely on its personal view of the children’s best interests." In overturning, the appeals court found that the lower court had placed the burden of proof on the parent, requiring him to show that visitation would be harmful, rather than where it rightfully belonged, on the grandparents to show that harm would occur without visitation.
Arkansas specifically grants great-grandparents the same rights as grandparents.
Mediation and counseling are suggested as possible solutions in the Arkansas law, but only if the services are available, if both sides consent and if one or both sides agree to pay for the services. It is also stipulated that if mediation or counseling takes place, the records of these processes may not be used in court.
Grandparent visitation is covered in two separate statutes, one for when the grandchild is in the custody of a parent and one for when the grandchild is not in the custody of a parent.