concurring in part; dissenting in part. I agree that the grandparents-visitation statute may apply to guardians and other nonparental custodians, and on that basis it is not facially unconstitutional. However, I disagree that this statute is unconstitutional as applied.
I do agree that the language of the statute needs revision. If the legislature were to redraft the statute in light of the long history of decisions of this court concerning the right of a parent to raise their child, and the presumption that a parent is acting in the best interests of their child in making decisions concerning the child, as well as the United States Supreme Court decision in Troxel v. Granville, 530 U.S. 57 (2000), the confusion would be resolved, and the task assigned to the trial courts would be much easier and would produce more predictable results. It is also troublesome that our present statute requires the trial court to state in writing why grandparent visitation is being denied, but requires no statement in writing when grandparent visitation is granted. Inclusion of factors the trial court must consider in its analysis required under the statute would also be helpful. See, Martin v. Coop, 693 So.2d 912 (Miss. 1997). Nonetheless, under the facts of this case, I would affirm the trial court’s decision holding the statute was not unconstitutional as applied but I would reverse and remand this case for reconsideration of visitation granted to the grandparent.
As the United States Supreme Court held in United States v. Salerno, 481 U.S. 739 (1986), “the mere fact that [a legislative] Act might operate unconstitutionally under some conceivable circumstances is insufficient to render it wholly invalid.” Salerno, 481 U.S. at 745. More specifically, a statute may sometimes be preserved by the courts by simply restricting its application. Shoemaker v. State, 343 Ark. 727, 38 S.W.3d 350 (2001). This could be done by requiring application of the preexisting presumption in favor of parents, as was done by the trial court in this case.
The trial court specifically noted Troxel, supra, and specifically stated its analysis was intended to comply with the requirements set out therein. When the trial court’s nine-page decision is read in total, it is apparent the trial court was considering the grandparent-visitation rights under the statute in light of the mother’s parental rights and interests. In fact, on page seven, the trial court states, “The behavior of the defendant has reached the level that justifies the court interfering in the parent’s liberties to make all decisions for the minor child.” The trial court further found that the presumption in Lea Ann’s favor was overcome.
A brief review of the record reveals a parent who behaved irrationally in a number of ways, in directly disobeying orders of the court, and in fleeing the jurisdiction. It is apparent that the trial court was considering both Lea Ann’s parental rights and the best interest of Brandon. I do not believe that the trial court’s decision to leave Brandon in the custody of Lea Ann may be read so broadly as the majority does. Clearly, the trial court is concerned about Lea Ann’s care of Brandon in a much more general sense even if the order might have been worded more clearly.
I also write to emphasize that this decision is narrow in scope and applies only to visitation issues arising from application of Ark. Code Ann. § 9-13-103 (Repl. 2002). In other words, this decision is limited to an attempt by grandparents to obtain visitation under the subject statute. The analysis should not be confused and applied in a case where the State is determining custody, and visitation on other basis, including other statutory schemes, or under the State’s exercise of its sovereign parens patriae power in protection of the children of this State.
The issue of grandparent visitation did not originate with the subject statute investing grandparents with a statutory right to commence an action to obtain visitation. Mention of visitation granted grandparents may be found in our case law stretching back to the 1950s at the least. Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952); Servaes v. Bryant, 220 Ark. 769, 250 S.W.2d 134 (1952). However, as this court stated in Glover v. Reed, 319 Ark. 16, 889 S.W.2d 729 (1994), grandparent rights are derived from statutes or may be conferred by a court of competent jurisdiction. See also, Cox v. Stayton, 273 Ark. 298, 619, 619 S.W.2d 617 (1981). It is not clear that the action pending in the chancery court is simply an action for grandparents-visitation rights under Ark. Code Ann. § 9-13-103. Bill Linder did not even bring his petition under that statute, but rather under Ark. Code Ann. § 9-13-101 (Repl. 2002) “Award of Custody”, and it should be noted that the trial court has considered custody, which is not even mentioned in the grandparents-visitation statute. Nothing in this decision prohibits the grandparents from pursuing any other avenues that might be open to them.
The trial court granted the paternal grandfather the same visitation as a noncustodial parent. Unless this visitation was granted in the context of a custody proceeding, it appears to be granted in error. Even then, absent a finding of an extremely close paternal type relationship, which was absent in the facts of this case, this amount of visitation could not have been in the best interests of this child. I would reverse and remand this case for the trial court to reconsider the paternal grandfather’s visitation.