The following excerpts are from Bowen v. Bowen, 2012 Ark. App. 403, decision released today by the Arkansas Court of Appeals:
Nick Bowen and Helene Wade divorced in 2005, and they were awarded joint custody of their two minor children—with Nick having custody in the summer and Helene having custody during the school year. The following year, the parties entered into an agreement in which they alternated care of the children on a weekly basis. In 2010, Nick and Helene agreed to homeschool their children in Nick’s home. Nick’s current wife, Amy Bowen, homeschooled the kids with the assistance of their mother, Helene.
In September 2010, Nick petitioned for ex parte drug testing and immediate custody of the children based on Helene’s drug use. After Helene tested positive for illegal substances, the court awarded Nick sole custody of the minor children and visitation to Helene. The trial court also allowed Nick’s parents, Letizia and David, to intervene and seek grandparent visitation in the underlying domestic-relations case between Nick and Helene.
The trial court set the hearing on grandparent visitation for April 2011 and ultimately ordered that Letizia and David receive visitation with their grandchildren, one weekend per month with extended time during the summer and holidays. The court further ordered that this time be taken from Nick’s time with his children. It is from this order that Nick appealed.
Today, the Arkansas Court of Appeals REVERSED the trial court's decision in Bowen. One of the more telling paragraphs of the opinion is the following:
Our statute not only has a presumption in the favor of the custodial parent—giving the parent’s decision presumptive or special weight in deciding whether grandparent visitation is in the best interest of the child—the statute also requires the existence of a substantial relationship between grandchild and grandparent before the grandparent has standing to petition the court for visitation. Requiring a “substantial relationship” implies that grandparent visitation is not accepted as being beneficial, per se. And, more important, a substantial relationship does not necessarily mean the child is harmed if visitation is denied. In fact, in order to overcome the presumption that a fit parent is necessarily acting in his children’s best interest, our statute requires both a showing of a substantial grandparent/grandchild relationship, and a showing that a denial of that relationship “is likely to harm the child.” (emphasis added)
And then the Court delivers the crowning blow:
In this case, the reality remains that for the five years immediately preceding Letizia and David’s filing of their grandparent-visitation petition the children had only seen their grandparents on a limited basis—once a week, at lunch, during the school year. While there is no doubt that these short visits were enjoyable and perhaps even beneficial to the children, there is a substantial difference between the existence of a relationship benefiting a child and the denial of that relationship harming a child.
So, the Court is serious about this substantial relationship requirement and that a grandparent will need to prove that harm will result to the child if grandparent visitation is not granted. Not an easy burden to meet.
As a practitioner, my experience has been that grandparents will almost always tell me they have a substantial relationship with their grandchildren. (Why else would they be in my office asking about grandparents' rights?) But practitioners, and grandparents as well, are warned that this is only part of the puzzle. The hurdle is high when it comes to getting grandparent visitation. Better come to court loaded for bear. Or in lawyer lingo, better bring the big brief case.