422 S.W.3d 162
Ark. Ct. App.2012Background
- Favano sought to limit/deny grandparent visitation by Elliott after a history of contested contact since Kyle Hill's death.
- The trial court granted Elliott visitation, finding a significant relationship and that visitation was in M.F.'s best interest.
- Favano testified that Elliott had previously exercised Kyle's visitation, sometimes causing M.F. to be kept from Friday through Monday; Favano also cited Elliott's past judgment concerns.
- Elliott and her family testified to a loving, close relationship with M.F. and the importance of maintaining that bond for the child’s well-being.
- Favano filed a motion for new trial, stay, and expedited hearing, attaching a counselor’s affidavit claiming potential harm to M.F. from court-ordered visitation.
- On appeal, the court reversed the visitation order, holding the record lacked sufficient evidence that loss of contact would likely harm M.F., and did not resolve Favano’s new-trial argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether harm to the child from losing the relationship was proven | Favano argues lack of evidence of harm if contact ends | Elliott contends evidence showed a significant bond and potential harm from loss | Trial court erred; harm element not proven by preponderance |
| Whether Elliott established a significant and viable relationship with M.F. | Favano concedes some relationship but questions sufficiency for best-interest | Elliott proved regular, substantial contact with M.F. over years | Significant and viable relationship established |
| Whether visitation is in M.F.'s best interest given the harm element | Favano asserts best-interest not established due to lack of harm proof | Elliott argues best-interest supported by relationship and cooperation potential | Best-interest finding reversed due to lack of harm proof |
Key Cases Cited
- In re Adoption of J.P., 385 S.W.3d 266 (Ark. 2011) (clearly erroneous standard; deference to trial court in custody matters)
- Bowen v. Bowen, 421 S.W.3d 339 (Ark. App. 2012) (reversed where harm evidence to child from loss of grandparent relationship was lacking)
- Oldham v. Morgan, 271 S.W.3d 507 (Ark. 2008) (strict construction of grandparent visitation statute)
- Bethany v. Jones, 378 S.W.3d 731 (Ark. 2011) (deference to trial court's credibility determinations in visitation cases)