FAYETTEVILLE -- The Arkansas Court of Appeals on Wednesday reversed and dismissed a Washington County Juvenile Court case involving grandparent visitation.
Marilyn Sue Lively and Robert Alan Lively were granted visitation with two grandchildren by Circuit Judge Stacey Zimmerman after the children's parents divorced and their son's parental rights were terminated.
The children's mother appealed, arguing there was no showing such visitation was in the best interest of the children. The appeals court agreed.
To prove visitation was in the children's best interest, the Livelys had to show they had the capacity to give the children love, affection and guidance; that the loss of the relationship between themselves and the children was likely to harm the children; and they were willing to cooperate with the mother if visitation was allowed, according to the opinion. Justices said the guidance portion of the best-interest element was missing.
Justices also said there was no evidence in the record the loss of the relationship between the Livelys and the children was likely to harm the children because, at the time, they had no contact with them for two years and, according to their mother, neither child remembered the Livelys.
"It was an abuse of discretion to award visitation," according to the opinion.
Justice Rita Gruber, in a concurring opinion, expressed concern the circuit court ignored the court's statutory requirement a written order denying or granting grandparent visitation "shall state any and all factors considered by the court in its decision to grant or deny visitation."
"The court did not set forth the factors it considered in deciding to grant visitation, leaving us with nothing to review and preventing us from determining "on the entire record" whether "a mistake has been committed," Gruber wrote.
NW News on 05/05/2016