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Robinson v. Ford-Robinson5/5/2005
ourt ruled that custody of the child should have been left with his mother, not placed with his stepfather.
At this point, it is significant to mention that the majority opinion relies on most of what the Stamps case holds, but then (confounding to me) it seeks to distance itself from Stamps by stating that it did not find that natural-parent presumption (preference?) governs this case, as this case involves visitation by a stepparent, rather than custody.
The majority court seems to overlook the fact that our court in Linder fully adopted the Supreme Court's plurality opinion and the Court's rationale in Troxel. The language employed by Troxel, and by our court in Linder, is much stronger in favoring a fit parent than that found in our prior case law where a parent's custody and visitation rights were in issue when a grandparent, stepparent, or other third party sought the custody or visitation of a child.
Unlike our prior Arkansas case law, our court in Linder began its review with the analysis that Lea Ann Linder, a single parent, had a fundamental right under the Fourteenth Amendment in prohibiting state intrusion on her parenting of her son. The Linder court, quoting Justice O'Conner favorably, stated: "Impingement on a parent's fundamental liberty right to raise children requires heightened review and that one `special factor' that might warrant state interference was if the parent were declared unfit." Put another way, if a parent is unfit, then clearly, under this approach, the state intrusion with the relationship is warranted.
The Linder case involved grandparents' visitation rights given them with their grandson by the trial court, even though the boy's mother, Lea Ann, was declared fit. Lea Ann successfully reversed the lower court's award of visitation rights to the grandparents, but this court upheld Arkansas' Grandparent Visitation Act (GPVA) as facially constitutional, but concluded the act had been erroneously applied by the trial court. See Ark. Code Ann. § 9-13-101 (Repl. 20020; now Ark. Code Ann. § 9-13-1031 (Supp. 2003).
It appears to me that, by this court's decision in Freeman v. Rushton, ____ Ark. ____, ____ S.W.3d ____ (January 27, 2005), and its decision here today, our court is giving no real discussion or guidance regarding the Linder and Troxel holdings, and, instead, glosses over the constitutional, fundamental right a fit parent has concerning his or her child's care, custody, and control. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. To hold otherwise, if a judge disagrees with the parents' estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, a court can disregard and overturn any decision by a fit, custodial parent concerning visitation whenever, as noted above, the third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.
For these reasons, I respectfully dissent.
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