Arkansas Code Annotated 9-13-103(c) establishes a rebuttable presumption that a custodian’s (parent or guardian) decision denying or limiting grandparent visitation is in the best interest of the child. To rebut this presumption, a petitioner (grandparent) must prove that (1) the petitioner has the capacity to give the child love, affection, and guidance; (2) the loss of the relationship with the petitioner is likely to harm the child; and (3) the petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
Last week in Harvill v. Bridges the Arkansas Court of Appeals held that the grandparents failed to rebut this presumption because the evidence was insufficient to show either that the grandparents' relationship with the children had been lost or that the grandparents were willing to cooperate with the father if visitation were allowed.
The Court states:
In order to establish a loss of a relationship under the statute, the petitioner must demonstrate that the relationship between grandparents and grandchild “had been lost or would be lost.” See Oldham v. Morgan, 372 Ark. 159, 271 S.W.3d 507 (2008). Thus, if there is a relationship in existence that, while limited, has not been lost, and if there is no evidence that the relationship would be lost were grandparent visitation not established by the court, a grandparent’s petition for visitation is premature.
The Court also found the following persuasive:
Our decision to reverse the order of grandparent visitation in the present case is equally based upon appellees’ (grandparents) failure to show that they could and would cooperate with appellant (father) were visitation allowed. Upon reviewing the record, we are convinced that the actions of the petitioners (grandparents) in this case unequivocally show that they will not cooperate with appellant but instead will be satisfied with nothing less than control over the children. Even when faced with negative drug tests, they continued to assert at the visitation hearing that appellant somehow faked the results. Appellant testified that his primary concern with permitting appellees to have unsupervised visitation is that they would continue to undermine his authority as parent and relationship with his children. The evidence indicates that this is precisely what appellees would do. The trial judge himself appears to have believed this to be a distinct possibility, insomuch as his order expressly allowed the parties to record their conversations with each other regarding the children. That the children think so, too, is shown by the fact that, when meeting with appellees’ expert social worker, one of the older children cried and expressed fear that appellees would again take the children away from their father.