old person leaning on cane

The Arkansas Court of Appeals has just ruled that a grandparent may not initiate a custody proceeding for the purpose of gaining custody of a grandchild.  See Pfeifer v. Deal.  Petitioning to obtain visitation is still valid and left as-is under Arkansas statutes (A.C.A. 9-13-103 et. seq.).

The grandparent here asked for custody under A.C.A. 9-13-101.  That statute applies to custody proceedings (which includes a divorce proceeding) that are already underway.  The grandparent has the right to intervene in such a proceeding and even obtain custody in certain cases.  But in this case the grandparent initiated the custody proceeding and the Court of Appeals stated that there is no provision in the statute for a grandparent to initiate such a proceeding.

Finally, there is this curious paragraph at the end of the decision:

"Finally, Pfeifer contends that a grandparent’s right to initiate a custody proceeding was recognized in Coffee v. Zolliecoffer, 93 Ark. App. 61, 216 S.W.3d 636 (2005). In that case, the maternal grandparents petitioned for custody of the minor, and this court affirmed the trial court’s award of custody to the grandparents without discussion of their right to initiate such a suit. As the present issue was not raised, we do not find Coffee determinative here."

Apparently whether the grandparents have the right to initiate a custody proceeding was never challenged in the Coffee case and therefore was not decided.  And in the present case, the Court has elected to leave it alone.  Seems like it would have been a good opportunity to clean this up and decide whether there is an existing right (under common law) for a non-parent to initiate a custody proceeding.

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