dissenting.
| ¶ nThere are two competing interests in this appeal: (1) a fit parent’s right to exclude a former romantic partner from having any visitation with her minor child after the relationship ended; and (2) a former romantic partner’s right to have court-ordered visitation premised upon standing in loco parentis to the minor child during the course of the romantic relationship. The majority focuses on numerous facts regarding the parties’ history in this case, seemingly as a basis upon which to craft a new judicial right of visitation for Jones. Yet, the opinion fails to furnish any meaningful analysis of Bethany’s right to parent her child as she sees fit. That omission, fostered by the trial court and advanced by the majority, creates the impression that Bethany and Jones have equal legal footing in this dispute; however, they do not.
A parent’s Fourteenth Amendment guarantee of due process of law in the right to have and raise children was reaffirmed in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In Troxel, Justice O’Connor, speaking for four Justices in the plurality decision, summarized the Court’s approach to governmental intrusions on the parent-child relationship:
[T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed | ,7that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id. at 166, 64 S.Ct. 438.
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children .... In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel, 530 U.S. at 65-66, 120 S.Ct. 2054. In Troxel, the United States Supreme Court wrestled with the balance between a state statute that granted grandparents the right to petition for visitation and a parent’s Fourteenth Amendment due-process liberty interest in parenting a child without undue state interference. The Washington statute read: “ ‘Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.’” Id. at 61, 120 S.Ct. 2054 (quoting Wash. Rev.Code § 26.10.160(3) (1994)). Justice O’Connor articulated the three factors relied upon to support the decision that the statute infringed upon a parent’s fundamental rights. Id. at 65-66, 120 S.Ct. 2054. First, there had been no finding of parental unfitness to defeat the traditional “presumption that fit parents act in the best interests of their children.” Id. at 68, 120 S.Ct. 2054. Second, the trial court had failed to accord any special weight to the parent’s determination of her own child’s best interests. Id. at 69, 120 S.Ct. 2054. Third, the court noted that there had been no allegation that visitation had been denied entirely. Id. at 71, 120 S.Ct. 2054. The Court decided that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing Indecisions simply because a state judge believes a ‘better’ decision could be made.” Id. at 72-73, 120 S.Ct. 2054 (emphasis added).
The majority glosses over Troxel and barely touches upon Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). In Lin-der, this court relied on the fundamental-rights analysis from Troxel to hold that the Arkansas Grandparent Visitation Act (GPVA), codified at Ark.Code Ann. § 9-13-103, was unconstitutional as applied to the appellant:
It appears that the trial court found Lea Ann to be a fit parent for all purposes save one: making the decision about Brandon’s relationship with his paternal grandparents. This finding of fitness is corroborated by the court’s grant of custody to her and his remarks about her suitability as a parent and her loving bond with Brandon.... The question then becomes whether unfitness solely to decide visitation matters is a compelling interest on the part of the State that warrants intrusion on a parent’s fundamental parenting right and overcomes the presumption in the parent’s favor. We conclude that it is not. So long as Lea Ann is fit to care for Brandon on a day-to-day basis, the Fourteenth Amendment right attaches, and the State may not interfere without a compelling interest to do so. As Justice O’Connor wrote in Troxel, the State must accord “special weight” to the mother’s decision so long as she is a fit mother. See Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061.
Linder, 348 Ark. at 351, 72 S.W.3d at 857 (emphasis added). Without the foregoing legal framework to begin reviewing this appeal, it is understandable that the majority found support for its decision in Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005), where this court granted visitation to a stepmother who stood in loco parentis to the minor child. Interpreting Robinson, the majority states that “this court stated that ‘critical’ to its review was the fact that the circuit found that the stepmother stood in loco parentis to the minor child.” The language does come from Robinson, but when viewed in its proper context, it is clear that it is inapposite.
hsFirst, the visitation rights in this case arose out of a custody determination in a divorce proceeding rather than from a lawsuit brought by nonparents pursuant to a statute. Visitation was incident to and part of the circuit court’s determination of custody. Morever, and critical to our review in this case, the party awarded visitation in this case was found by the circuit court to stand in loco paren-tis to the child. In other words, the court granted visitation to a person it considered to be, in all practical respects, a non-custodial parent.
Id. at 239, 208 S.W.3d at 143-44. In plain terms, the Robinson court stated that the visitation in that case arose during a divorce proceeding and not pursuant to a statute. Jones’s request for visitation is not brought pursuant to a statute, nor is it sought during the course of a divorce proceeding. Now, any person in Arkansas can petition a court for visitation with a minor child over the objection of the parent. The majority found this argument unavailing, and in reliance on Mullins v. Picklesimer, 317 S.W.3d 569 (Ky.2010), stated that this case “was distinguishable from the situation where there is a grandparent, a babysitter, or a boyfriend or girlfriend of the parent, who watched the child for the parent, but who was never intended by the parent to be doing so in the capacity of another parent.” Yet, any of the above-referenced persons can assert that they stand in loco parentis to a minor child, compelling the parent to undertake the burden of defending against such actions. The burden of litigating a domestic-relations case can itself be so disruptive of the parent-child relationship that it infringes on the parent’s constitutional right to make basic determinations regarding the child’s welfare. Troxel, 530 U.S. at 101, 120 S.Ct. 2054 (Kennedy, J., dissenting). The majority demonstrates that this burden is substantial as almost one-half of its opinion is devoted to the history of this case.
12nMoreover, the majority’s reliance on Robinson is misplaced because Robinson is an anomaly in our law and should be limited to its facts. Justice Glaze’s dissent in Robinson correctly pointed out that the holding was contrary to Troxel and Lin-der. The court in Linder adopted the Supreme Court’s plurality opinion in Trox-el, which required heightened review of any state infringement upon a parent’s fundamental right concerning his or her child’s care, custody, and control. Linder also clearly rejected a compartmental view of fitness — such that a parent could be fit for every other decision regarding a child but be unfit for decisions concerning with whom the child associates. Following the compartmental view, if a court disagreed with a fit parent’s decision of what is in a child’s best interest, the court’s view would necessarily prevail. A determination based solely on the judge’s opinion of what is in the child’s best interest makes it possible to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a petition for visitation. Robinson, 862 Ark. at 242, 208 S.W.3d at 145 (Glaze, J., dissenting).
The Robinson court found that the stepmother stood in loco parentis, and used that finding to disregard the father’s decision to deny his ex-wife visitation with his minor son — without discussing the weight that must be given to the father’s decision to deny visitation. Likewise, the majority gives no deference to Bethany’s decision to exclude Jones from her child’s life and erroneously holds that our standard of review permits it to determine what is in the best interest of E.B. Infringement of a parent’s fundamental right to parent a child premised upon a third person standing in loco parentis runs counter not only to our holdings in Troxel and Linder, but also to our law regarding the significance of standing in loco parentis.
12i A close examination of our cases reveals that this court has never granted standing to seek visitation solely on the basis of in loco parentis status. In those cases where we have discussed in loco parentis, such status was used only as an interpretive tool to facilitate the inquiry about who stands in loco parentis.1 The cases cited by the majority regarding in loco parentis support this view. Thus, the majority opinion has no support in the cases it claims to be relying upon, and it completely rejects our holding in Department of Human Services v. Howard, 367 Ark. 55, 238 S.W.3d 1 (2006), that “[i]n order to establish standing, a party must show that he has a right which a statute infringes upon and that he is within the class of persons affected by the statute.” Id. at 59, 238 S.W.3d at 4; see also Thompson v. Arkansas Social Servs., 282 Ark. 369, 669 S.W.2d 878 (1984).
A review of the history of our law regarding grandparent visitation would be helpful to an understanding that the majority’s position is not a logical extension of prior case law. In the context of a grandparent seeking visitation, we have held that “under the general law there is no right of visitation enforceable by injunction in favor of a grandparent with respect 122to a grandchild when a natural parent having custody resists or objects.” Veazey v. Stewart, 251 Ark. 334, 335, 472 S.W.2d 102, 103 (1971). In Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), the court stated, “At common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding.” Id. at 54, 611 S.W.2d at 758. The rationale behind this rule was discussed in Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), an adoption case:
What the appellants ask us to do through this line of argument is to recognize some form of inherent “grandpa-rental rights” beyond those previously bestowed. This we decline to do, not out of disregard for the genuine relational ties which naturally exist between grandparents and grandchildren, but rather for the reason that the sanctity of the relationship between the parent and child must be the overriding concern. To create new, enforceable rights in grandparents could lead to results that would burden rather than enhance the welfare of children.
Id. at 304, 619 S.W.2d at 621. It was only after the legislature gave grandparents statutory standing to petition for visitation that we recognized the enforcement of such rights. Cf. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978) (probate court had no jurisdiction to award visitation to grandparents in an adoption decree but proper court could grant grandparents visitation pursuant to statute).
Expanding third-party-visitation rights by statute limits the intrusion upon the parent-child relationship as recognized by Justice O’Connor in Troxel:
The nationwide enactment of nonpa-rental visitation statutes is assuredly due, in some part, to the States’ recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States’ nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from | ^relationships with statutorily specified persons — for example, their grandparents. The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvious cost. For example, the State’s recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship.
Troxel, 530 U.S. at 64,120 S.Ct. 2054.
The majority’s holding ignores these fundamental principles.2 The statute at issue in Troxel applied to anyone petitioning for visitation, even during divorce proceedings. See Wash. Rev.Code § 26.10.160(3) (1994). Thus, it cannot be said that the Supreme Court’s decision is restricted to grandparent-visitation statutes. It would be absurd to argue that, as against a grandparent, a parent’s decision is subject to scrutiny; but, as against a legal and biological stranger, such as Jones, a parent’s decision is entitled to no deference. Today’s | ^opinion circumvents the guiding principles that restrict intrusion upon the parent’s fundamental right to determine with whom his or her child associates.
In Linder, we stated that it was for the legislature to cure any defects in the statute. Linder, 348 Ark. at 355, 72 S.W.3d at 859-60. Having abstained from rewriting an existent statute conferring the right to visitation upon a grandparent, we necessarily must decline to create a nonexistent body of law regarding persons that the legislature has not identified as having rights to visitation. However, the majority confers standing on a party who has not been afforded the right to visitation by this state’s legislature. This court has recognized the presumptive effect to be given to a parent’s wishes under Troxel, and has struck down the grandparent-visitation statute for failing to recognize that presumption. Linder, 348 Ark. at 350, 72 S.W.3d at 856. As the third-party right to visitation granted by the majority is a new cause of action, it should come from the legislature, not this court. See Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); cf. Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979); Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W.2d 80 (1971).
I would reverse and dismiss.
. See, e.g., Finder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004) (when the assailant stands in loco parentis to a rape victim, the law regarding force is satisfied with less than a showing of the utmost physical resistance); Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986) (parent or person acting in loco parentis is immune from suit for an unintentional injury to his child but not for an intentional injury to that child); Thomas v. Inmon, 268 Ark. 221, 594 S.W.2d 853 (1980) (un-emancipated minor may not hold a parent or person standing in loco parentis liable for involuntary tort committed against him); Moon Distributors, Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968) (wrongful-death award to decedent’s stepdaughter to whom the decedent stood in loco parentis permitted); Gillespie v. Holland, 40 Ark. 28 (1882) (lease set aside due to undue influence where lessee/brother stood in loco parentis to lessor/sister).
. The majority’s decision continues the erosion of parental rights recently seen in Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413, wherein we held that "in guardianship matters, the natural-parent preference is but one consideration, which is subservient to the principle that the child's best interest is the paramount consideration.” Id. at 14, 359 S.W.3d at 421. To reach that conclusion, this court stated, "to the extent that any of our prior cases suggest a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, we overrule them.” Id. at 13, 359 S.W.3d at 421. One of the “prior cases” specifically discussed in Fletcher was Devine v. Martens, 371 Ark. 60, 263 S.W.3d 515 (2007). There, we stressed that the courts of this state should not be in the business of permanently removing children from their parents simply because of poor judgment, especially after the parent has rectified the issue(s) calling into question his/her fitness. Id. Because Troxel and Linder require that some special weight be given to the decisions of fit parents as against any interests of third parties, state courts are precluded from substituting their judgments for that of the parent. See Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054; Linder, 348 Ark. at 344-45, 72 S.W.3d at 854. When fitness is not in issue, then, the state’s intrusion, which includes courts, must be for a compelling interest. See Troxel, 530 U.S. at 68-69, 120 S.Ct. 2054; Linder, 348 Ark. at 351, 72 S.W.3d at 857.