concurring. I concur with the majority that Appellee Tim Weiss’s visitation should continue as set forth in the original divorce decree and that the trial court’s award of visitation rights to Raegan Weiss’s half-sisters should be reversed. I write to clarify the grounds on which I believe the majority should have reversed the award of sibling visitation. Contrary to the majority’s assertion, the trial court did not “[cloud] the issue of parental visitation rights by ordering concurrent sibling visitation under Ark. Code Ann. § 9-13-102.” The issue before the trial court was sibling visitation, because Raegan’s half-sisters, by their mother as next friend, had requested visitation in their petition to intervene.
The circumstances leading up to the trial court’s order were as follows. Appellant Bonnie (Weiss) Medlin, Raegan’s mother, had filed a petition for child support against her ex-husband, Tim Weiss, who is Raegan Weiss’s father. In response to the petition for child support, Tim Weiss filed a pleading in which he complained that Bonnie was attempting to interfere with his visitation. He alleged that, whenever he was required by his job to leave town on Sunday afternoon, Bonnie was insisting that Raegan be returned to her before the end of his scheduled visitation at 6:00 p.m. He asked the trial court for leave to keep Raegan the full scheduled visitation period, even if he was not present, in order that she might spend that time with her half-siblings.
On December 26, 2002, before the trial court ruled on the child support or visitation issues, Tim’s wife Ronda Weiss petitioned to intervene on behalf of Raegan’s half-sisters, Jesaca and Jamee, and asked the trial court to award visitation to Jesaca and Jamee pursuant to the Sibling Visitation Statute, Ark. Code Ann. § 9-13-102 (Repl. 2002). Bonnie then filed a motion to dismiss the petition to intervene. On April 10, 2003, the trial court issued an order denying Bonnie’s motion to dismiss and granting the motion to intervene. Therefore, contrary to the majority’s conclusion that the trial court clouded the issue of parental visitation rights by addressing the visitation rights of the half-siblings, the hearing held on May 21, 2003, was for the purpose of determining whether the half-siblings, as Intervenors, were entitled to visitation with Raegan. The trial court found in the affirmative and, on May 28, 2003, entered an order granting visitation rights to Jesaca and Jamee, ordering that those visitation rights were to be concurrent with and during the same times as Tim Weiss was granted visitation.
I believe the issue that should be considered by the majority is found in Paragraphs 3 and 4 of the trial court’s May 28, 2003, order, which reads as follows:
3. That Plaintiff [Bonnie Medlin] has offered no convincing testimony for objecting to visitation between Raegan Weiss and her half sisters, Jesaca Autum Nikole Weiss and Jamee Dianah Lea Weiss.
4. That it is in the best interest of Raegan Weiss to have a relationship with her siblings, Jesaca Autum Nikole Weiss and Jamee Dianah Lea Weiss.
The trial court had noted in his letter opinion, dated April 2, 2003, that both Bonnie Medlin and Tim Weiss were fit parents. However, the trial court mischaracterized the issue in his letter opinion as follows:
In [Troxel v. Granville, 530 U.S. 57 (2000) and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002)], the right of a single custodial parent to be free of state intrusion in the parenting of a child was at stake. Here, we have a dispute between two fit parents. And, as Mr. Ryan points out, both parents have fundamental interests in parenting decisions and the dispute is, essentially, which parenting decision should be given weight. This case may also be distinguished from Seagrave v. Price, 349 Ark. 433, 79 S.W.3d 339 (2002), where one parent was not fit. The sibling visitation statute, when applied in this situation, simply allows the court to give weight to the parenting decision of the non-custodial parent. . . .
We can see from his letter opinion, the trial judge considered the issue to be between Bonnie and Tim, as Raegan’s two fit parents. However, the dispute before the trial court was not one of Bonnie’s parenting decisions tempered against Tim’s parenting decisions. The dispute before the trial court, regarding the Intervenors, was whether or not Raegan’s half-sisters, could intervene and assert visitation rights over the objection of Bonnie Medlin. The fact that this dispute was between a fit parent, Bonnie Medlin, and two third parties, the half-sisters, is critical to understanding where the trial court went wrong.
In order to keep Tim Weiss’s visitation intact and prevent Bonnie from interrupting it prior to the 6:00 p.m. Sunday deadline, the trial court need only have ordered that Tim’s visitation schedule in the original divorce decree was to be left unchanged. The trial court certainly had the power to order that, regardless of whether Tim was present or not, he had parental authority to decide where Raegan spent her time from 6:00 p.m. on Friday until 6:00 p.m. on Sunday, and that Bonnie could not interfere with Tim’s parenting decisions during those times.
Instead, the trial court went further and granted the Intervenors’ request for visitation rights over the objection of Bonnie Medlin, after finding Bonnie was a fit parent. As the United States Supreme Court held in Troxel v. Granville, a third party cannot be awarded visitation rights over the objection of a fit custodial parent:
[The statute] contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest [of the child] determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington, a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.
* ‡ ‡ %
The Superior Court’s order was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters.
Troxel v. Granville, 530 U.S. at 67-68.
In Troxel v. Granville, it was a grandparent who was the third party attempting to gain visitation rights over the objection of a fit custodial parent. In this case, the third parties are two half-siblings. Nonetheless, as in Troxel, the trial court here overturned a parenting decision by Bonnie Weiss, a fit custodial parent, solely on the basis of the court’s determination of the child’s best interests.
In Linder, we used this reasoning from Troxel v. Granville, supra, to hold the Arkansas Grandparent Visitation Act 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 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 at 68-69, 120 S. Ct. 2054.
Linder v. Linder, 348 Ark. at 351, 72 S.W.3d at 857 (emphasis added).
Here the situation is decidedly different than that in Troxel or Linder, because the visitation at issue is presently occurring during the father’s regularly-scheduled visitation period. Therefore, it is understandable that the trial court confused the issue as one between two fit parents rather than between a fit parent and two third parties. However, one need only read the trial court’s order to see its breadth:
It is Therefore, CONSIDERED, ORDERED, AND ADJUDGED that the Intervenors, Jesaca Autum Nikole Weiss and Jamee Dianah Lea Weiss, shall be entitled to visitation rights with their half sister, Raegan Weiss, concurrent with and during the same times as set forth in the [divorce decree] whereby the Defendant,Tim Weiss, was granted visitation rights with said Raegan Weiss, and that said visitation rights by the aforementioned siblings shall be pursuant to and in accordance with the provisions as set forth in Ark. Code Ann. § 9-13-102 (Repl. 2002).
(emphasis added).
I note that the half-siblings’ visitation rights are not dependent upon Tim’s rights, but are merely to run concurrent and at the same time schedule as his visitation. In addition, the half-siblings’ visitation rights were awarded pursuant to the Sibling Visitation Statute, which has no provision for a custodial parent’s fundamental right to make parenting decisions for his or her child. The trial court’s award of visitation rights to the half-siblings, thus, are enforceable apart from and without reference to Tim’s rights. In other words, if, at any time in the future, Tim dies or is divorced from the half-siblings’ mother, the sibling visitation rights would still be in effect.
As is clear from both Troxel and our own precedent, it is a constitutional violation of a fit parent’s fundamental parenting decisions to award visitation over the objection of that fit parent. The fact that one fit parent — in this case, the father — does not mind a third party having visitation with his child does not confer visitation rights on that third party without the consent of the other parent. On the facts of this case, Tim is entitled to have Raegan during his entire visitation schedule, whether he is present or not, and if it is his decision that Raegan visits with her half-sisters during that time, Bonnie has no right to interfere with that decision any more than she has a right to interfere with his decision to leave the child with a babysitter or a Sunday School teacher. However, to award visitation rights to a third party, i.e., someone other than another fit parent, violates the principles set out in Troxel and Linder. For this reason, I believe the trial court’s order should be reversed.
Hannah, J., joins.