Grandparents with grandchildren who reside in the State of Arkansas are surprised to find out they can legally obtain visitation with their grandchildren through the Court system in Arkansas. The parents of the grandchildren must be divorced or legally separated or one of the parents must be deceased. If the parents were never married, the paternal grandparents can only get visitation rights if the father of the children has established paternity through a court order.
There are many facts that must be proven under the grandparent visitation law. For instance, there must be evidence of denial of visitation. If the father of the children has passed away and the mother of the children tells the paternal grandparents “the children can visit with you once a month” but the grandparent wants to visit twice a month, this is not denial. Denial is denial, i.e. the kids cannot come visit. There are many variations to this statement but that denial must exist. Do not go before a judge without evidence of this denial. Fear that you may be denied visitation at some point is not enough. The Court will find that to be premature.
The law allowing for grandparent visitation is found at Arkansas Code Annotated 9-13-103. Below is a large section of that law.
(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:
(1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;
(2) The child is illegitimate and the petitioner is a maternal grandparent of the illegitimate child; or
(3) The child is illegitimate, the petitioner is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.
(c)(1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.
(2) To rebut the presumption, the petitioner must prove by a preponderance of the evidence the following:
(A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and
(B) Visitation with the petitioner is in the best interest of the child.
(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;
(2) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months;
(3) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or
(4) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.
(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner must prove by a preponderance of the evidence the following:
(1) The petitioner has the capacity to give the child love, affection, and guidance;
(2) The loss of the relationship between the petitioner and the child is likely to harm the child; and
(3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed.
(f)(1) An order granting or denying visitation rights to grandparents and great-grandparents shall be in writing and shall state any and all factors considered by the court in its decision to grant or deny visitation under this section.
(2)(A) If the court grants visitation to the petitioner or petitioners, the visits may occur without regard to which parent has physical custody of the child.
(B) Visits with a paternal grandparent or great-grandparent may occur even when the child is in the custody of the mother, and visits with a maternal grandparent or great-grandparent may occur even when the child is in the custody of the father.
(3)(A) If the court grants visitation to the petitioner under this section, then the visitation shall be exercised in a manner consistent with all orders regarding custody of or visitation with the child unless the court makes a specific finding otherwise.
(B) If the court finds that the petitioner’s visitation should be restricted or limited in any way, then the court shall include the restrictions or limitations in the order granting visitation.
(4) An order granting or denying visitation rights under this section is a final order for purposes of appeal.
(5) After an order granting or denying visitation has been entered under this section, the custodian or petitioner may petition the court for the following:
(A) Contempt proceedings if one (1) party to the order fails to comply with the order;
(B) To address the issue of visitation based on a change in circumstances; or
(C) To address the need to add or modify restrictions or limitations to visitation previously awarded under this section.
Please call the office if you would like to discuss your chances of establishing visitation with your grandchildren.