Lead Opinion
hThe instant matter involves a dispute over child visitation. Appellant Alicia Bethany, biological mother of minor child, E.B., argues on appeal that Appellee Emily Jones, Bethany’s former same-sex partner, has no recognizable right entitling her to visitation with E.B. In support of her contention, she argues on appeal that the circuit court erred (1) in denying her motion to dismiss where Jones could not maintain any cause of action; (2) in denying her motion for directed verdict because there is no law in Arkansas that allows Jones to have visitation with the minor child; (3) in granting visitation under a theory of in loco parentis or equitable es-toppel; and (4) in failing to transfer this case from Perry County to Garland County, where venue was proper. We granted Appellant’s motion to transfer this case from the Arkansas Court of Appeals as it involves an issue of first impression; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(b)(1) (2010). We affirm the order of the circuit court.
The facts are largely undisputed. Bethany and Jones were same-sex partners from 2000 until 2008. In 2003, the parties purchased a home together, with both of their names listed | ¡.on the mortgage. Then, in 2004, the parties began to take steps toward having a family. A male friend of Jones’s agreed to donate sperm. Bethany agreed to carry the child because Jones was experiencing some health issues, including reproductive problems. Through the process of artificial insemination, Bethany became pregnant, and the minor child was born in 2005. The couple chose to give the child Jones’s last name and Jones’s grandmother’s name as the child’s middle name. The testimony at trial revealed that Bethany and Jones intended to co-parent the child. In fact, Bethany testified that at the time of conception, she considered Jones to be E.B.’s parent.
After E.B.’s birth, the parties agreed that Jones would remain at home as the child’s primary caregiver with Bethany returning to work on a full-time basis. E.B. referred to Bethany as “mama” and to Jones as “mommy.” It was undisputed that E.B. formed close relationships with members of Jones’s family, calling Jones’s parents “Grammy” and “Poppy.” Bethany was not close to either of her parents, and E.B. had little or no relationship with either of them.
In 2008, the parties ended their romantic relationship, but at that time agreed to continue co-parenting E.B. However, the situation between Bethany and Jones began to deteriorate. They had a disagreement over Jones keeping E.B. for a twenty-four-hour period, against Bethany’s wishes. Bethany, who had entered into a relationship with another woman, decided that it was no longer in E.B.’s best interest to have contact with Jones because she |squestioned Jones’s ability to parent, citing such factors as instability, depression, safety of the child, and truthfulness of Jones.
After Bethany denied Jones visitation with E.B., Jones filed the instant action for custody alleging breach of contract based upon equitable estoppel.
A hearing on the motion was held on February 11, 2009. Counsel for Bethany argued that there was no basis in the law for the petition, as Jones was not a biological parent, nor was there any support for a finding that Jones stood in loco parentis to the child. On the contrary, Jones argued that she did stand in loco parentis and that there was ample statutory authority for awarding her custody of the child on that basis. Jones also argued that she and Bethany formed an agreement that they would have' a child, that Jones would stay at home and take care of the child while Bethany worked, and that they would raise the child together. Jones asserted that Bethany breached that agreement and, thus, the court could fashion an equitable remedy for breach of an implied contract.
|4A second hearing was held on June 9, 2009, on a motion for summary judgment filed by Jones and a second motion to dismiss filed by Bethany. Jones argued that there was substantial evidence that she stood in loco parentis to E.B. She further argued that even though there was no statutory authority allowing a same-sex partner to seek custody or visitation with a minor child, the concept of in loco parentis was well recognized in Arkansas and allowed the circuit court to grant visitation from an equitable standpoint — as it was in E.B.’s best interest that her relationship with Jones continue. Bethany countered that there was no legal basis for visitation, as this situation was “no different than if a nanny decided they had become really close to a child and they wanted to file a case for custody.” Bethany further argued that the fashioning of any remedy was a matter for the legislature.
A bench trial was held on October 30, 2009. Bethany testified that she met and began a relationship with Jones in 2000 and that the couple bought a home together in 2003. She stated that they lived together until November 2008. According to Bethany, she and Jones began discussing having a child together and met with a prospective sperm donor in 2004. They informed the potential donor, who was a friend of Jones’s, that they did not expect him to have any kind of legal or emotional relationship with the child. At some point, the parties agreed that Bethany would carry the child because she was in better health physically. Jones was the one who actually inseminated Bethany. Bethany admitted that Jones went to every doctor’s appointment with her and was present during E.B.’s birth. Bethany further stated that originally she gave the child the middle name Lillian, which was Jones’s paternal | ^grandmother’s name, and Jones’s last name but has since removed the name Lillian and changed her last name, via court order. Bethany denied being estranged from her family. She did admit, however, that prior to and after E.B.’s birth, she considered Jones to be a co-parent and that E.B. referred to Jones as “mommy.” She also admitted that after the pair split, she intended to continue parenting with Jones. Bethany also testified about the incident that led her to stop Jones’s visitation with E.B., claiming that Jones kept E.B. past the agreed-upon time for returning her. According to Bethany, Jones kept the child for over twenty-four hours after her visitation ended. Bethany stated that she thought this episode demonstrated that Jones was irrational and emotionally unstable and that visitation should no longer occur. Bethany admitted that E.B. thought of Jones’s parents as her grandparents and spent all holidays with Jones’s family. She also admitted that Jones stayed at home for over three years to take care of the child but denied that the child was traumatized by Jones no longer being in her life.
On cross-examination, Bethany testified that she worried about Jones’s long-standing battle with depression. She opined that Jones lacked the ability to parent. She also stated that after E.B. was born, Jones was diagnosed with Chiari syndrome, a condition that causes migraine-like headaches, and that some days she was not able to take care of E.B. She also stated that in her opinion it was not in E.B.’s best interest to resume visitation because Jones had done nothing to rebuild her trust after the prior incident when she kept E.B. past the visitation deadline. Bethany opined that she did not think that Jones was fit and capable of | staking care of E.B. Finally, Bethany testified that she has been a resident of Garland County since the time that the instant action was filed and that she lives there with her partner, her partner’s daughter, and E.B. Bethany stated that she considered her partner to be a stepparent to E.B.
Jones testified that she was E.B.’s caretaker for the first years of her life. She denied that she was unable to take care of the child because of her health. She stated that Bethany was always close to Jones’s family. She stated that Bethany had issues with depression that worsened after E.B.’s birth. Jones stated that her mom would sometimes watch E.B. so that she could occasionally work outside the home. Jones explained that when she kept E.B. past the twenty-four-hour period she did so because she was concerned about Bethany’s plan to put E.B. in a car for an extended amount of time to go to Dallas to see people E.B. did not know. Jones stated that she and Bethany had an oral agreement that they would raise the child together, and they never had any discussions about what would happen if they split up. Jones admitted that neither she nor Bethany ever took any steps to legalize their relationship.
At the conclusion of the trial, the circuit court ruled from the bench that Jones had sustained her burden of proof to establish a relationship with E.B. based on the doctrine of in loco parentis. Thus, the court announced that it was going to allow Jones to have visitation. The circuit court further stated that it was in E.B.’s best interests to have a relationship with both women and their families.
|7In a written order entered on November 24, 2010, the circuit court awarded Jones visitation rights. He relied, in part, on the case of Robinson v. Ford-Robinson,
In so ruling, the circuit court made the following relevant findings:
22. The Plaintiff cared for the child’s every need every day for three and one-half years. The Plaintiff fed, bathed, clothed, nurtured, supervised, and supported E.B., and performed every other act a parent would do for their child. The Plaintiff and Defendant agreed to co-parent the child, and the Plaintiff stood in loco parentis to the minor child to the exclusion of all others besides the Defendant.
28. The Court finds that the Plaintiff established that she stood in loco paren-tis to the minor child, as she stood not only in the position of a parent to the child for three and one-half years, but the child saw the Plaintiff as her parent for those years. This relationship continued until the Defendant abruptly terminated the relationship and later eliminated any contact between the child and the Plaintiff.
Furthermore, the court agreed with Jones that Bethany should be estopped from denying Jones’s in loco parentis status. The court also considered the best interests of the child, finding that it was in E.B.’s best interests to have visitation with Jones, as a parent-child relationship between E.B. and Jones had been created. The court also noted E.B.’s ^relationship with Jones’s family as support for the conclusion that it was in the child’s best interest to grant visitation. From that order comes the instant appeal.
I. Visitation
Bethany’s first three arguments on appeal, that Jones failed to state a cause of action, that there is no law in Arkansas that allows Jones to seek visitation, and that the doctrine of in loco parentis is inapplicable, are so intertwined that we will address them together. Essentially, Bethany argues for reversal on the sole basis that nothing in Arkansas law allows her former same-sex partner to seek visitation with the child born to Bethany during their relationship. Jones counters that the circuit court correctly determined that she stood in loco parentis to E.B. and properly awarded her visitation.
Our analysis must begin with the fundamental notion that the Due Process Clause of the Fourteenth Amendment protects the rights of parents to direct and govern the care, custody, and control of their children. See Troxel v. Granville,
While the exact facts of this case are unique, we have cases discussing the doctrine of in loco parentis. Specifically, our decision in Robinson,
| mThis court discussed the concept of in loco parentis in Robinson, explaining as follows:
In Standridge v. Stand-ridge,304 Ark. 364 ,803 S.W.2d 496 (1991), we cited Black’s Law Dictionary (5th ed.1979) defining “in loco parentis ” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” In Moon Distributors v. White,245 Ark. 627 ,434 S.W.2d 56 (1968), we permitted a wrongful-death award to a decedent’s stepdaughter to whom the decedent stood in loco parentis, noting that the stepdaughter lived in the home with her stepmother “as mother and daughter.” Finally, this court has treated grandparents who stood in loco parentis differently from grandparents who did not. See Johnson v. Tompkins,841 Ark. 949 ,20 S.W.3d 385 (2000). In Johnson; we held that the grandparents had no right to present evidence on whether adoption would be in their grandchild’s best interest. Id. We distinguished our decisions in Quarles v. French,272 Ark. 51 ,611 S.W.2d 757 (1981), and Cox v. Stayton,273 Ark. 298 ,619 S.W.2d 617 (1981), in which we held that grandparents had standing to intervene in adoption proceedings involving their grandchildren, because the grandparents in those cases stood in loco parentis to their grandchildren. We hold that a court may award visitation to a stepparent who stands in loco parentis to a minor child when it determines that it is in the best interest of the child.
Id. at 239-40,
Thus, we must now determine whether the circuit court’s finding that Jones stood in loco parentis was clearly erroneous, as we review domestic-relations cases de novo on the record. Robinson,
Considering the ample evidence about the relationship between Jones and E.B., we cannot say that the circuit court clearly erred in finding that she stood in loco parentis to the child. It was undisputed that she was the stay-at-home mom for over three years who took care of E.B. E.B. called her mommy. She thought of Jones’s parents as her grandparents and 112spent holidays with Jones’s family. The parties’ intentions were always to co-parent, until Bethany unilaterally determined she no longer wanted to allow Jones to have visitation. Taking this all into consideration, we hold that the circuit court correctly determined that Jones was a parent figure to E.B.
Having determined that Jones stood in loco parentis, the question then becomes whether it is in E.B.’s best interest for Jones to have visitation rights, as that is the polestar consideration. See, e.g., Hudson v. Kyle,
it is in [E.B.j’s best interest for the Plaintiff to have visitation with her. For all of the reasons stated above, it is clear that the Plaintiff was [E.B.j’s primary caregiver. A parent-child relationship between [E.B.] and the Plaintiff was deeply established, as were relationships between the child and the Plaintiffs extended family, involving the Plaintiffs mother and father and step-mother and other family members. The Defendant was estranged from her family during most of this time, so the only support provided to the child came from the Plaintiff, the Defendant and the Plaintiffs extended family.
42. Finally, the Court questions the Defendant’s veracity as to her assertion that [E.B.] has not exhibited any kind of behavior or emotion which would indicate she has been negatively affected by [E.B.]’s abrupt separation from the Plaintiff. Up to this point, [E.B.] has spent most of her life in the Plaintiff’s care, and based upon the loving relationship that they formed, shared and enjoyed, it would be in [E.B.j’s best interest to continue to have contact with the Plaintiff.
Clearly, the circuit court weighed the testimony presented and considered the great weight of evidence regarding Jones’s care for E.B., the parent-child relationship formed between Jones and the child, and the child’s relationships with Jones’s family, to determine that it was 11sin E.B.’s best interest to allow Jones’s visitation. As we previously stated, we give due deference to the circuit court’s ability to view and judge the credibility of the witnesses. Hunt,
Before leaving this point, we note that Bethany makes several arguments that if we allow the nonbiological parent in this case to stand in loco parentis or to seek any visitation or custody rights to this child, it will open a floodgate that allows any person, i.e., a nanny, a babysitter, a girlfriend or boyfriend to go into court and seek custody of a child. We find this argument unavailing. In fact, the Kentucky Supreme Court in Mullins v. Picklesimer,
In the present case, the child was conceived through artificial insemination and brought into the world upon agreement of the parties to parent the child together. It was undisputed that Mullins physically cared for and supervised Zachary from birth throughout the period the parties were together and for the five months thereafter when they shared custody. And she did so in the capacity of a parent, which is evidenced by her living as a family with the child and Picklesimer, the child calling her “momma,” the child’s hyphenated surname (Picklesimer-Mullins), the parties’ attempt to confer parental rights on Mullins with the agreed judgment of custody, and Picklesimer continuing to allow Mullins to co-parent to the child for some five months after the parties’ relationship dissolved.
Id. at 576-77. After reciting these pertinent facts, the Kentucky court concluded that the 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. Id.
| MThe only significant factual difference between this case and Mullins is that in the latter, the parties, while still together, attempted to obtain a legal agreement regarding custody and legal rights between the partner and the minor child. No written agreement was ever entered into between the parties in this case, although the evidence is undisputed that it was the intent of both Bethany and Jones to co-parent E.B. Our holding in the instant case that the circuit court did not clearly err in finding that Jones stood in loco parentis to E.B. and that it was in E.B.’s best interest to allow visitation with Jones is grounded in the specific facts of this case. Thus, there is no merit to Bethany’s contention that this case will open the floodgates to allow anyone to seek visitation with a minor child.
II. Motion to Transfer
Finally, Bethany argues that the circuit court erred in denying her motion to transfer the case to Garland County, as she and E.B. resided in Hot Springs at the time the action was 11fifíled and, thus, venue did not lie in Perry County. In support of her contention, she argues that, prior to filing the instant action, Jones filed a guardianship action in Garland County. Further, she points out that the circuit court in its order stated that after terminating her relationship with Jones, Bethany moved in with another partner in Hot Springs. Bethany then concludes, without any citation to authority, that the circuit court clearly erred in denying the motion to transfer for proper venue. It is well settled where a party fails to cite to authority, this court will not consider the argument on appeal. See Matsukis v. Joy,
Nevertheless, Bethany’s argument on this point is without merit. The standard of review on appeal of a denial of a motion to transfer is whether the circuit court abused its discretion. Jones v. Billingsley,
Affirmed.
Notes
. Originally, Jones filed an action for guardianship that was subsequently voluntarily dismissed.
. This court granted a petition for review in Robinson, and affirmed the circuit court’s order finding that the stepmother stood in loco parentis and was thus entitled to visitation with her stepson. Robinson v. Ford-Robinson,
. In Robinson, we also rejected the appellant’s argument that the holding in Stamps v. Rawlins,
. Justice Baker, like Appellant, is trying to make this case into something it is not. Her dissent operates under the false premise that this is a statutory-interpretation case. This is quite simply a visitation issue wherein the circuit court granted visitation based on findings that Jones stood in loco parentis to E.B. and that it was in E.B.'s best interests to have visitation with the woman who had helped raise her for the first three years of her life. Justice Baker’s dissent attempts to circumvent stare decisis by referring to the common-law doctrine of in loco parentis as "an interpretive tool.” We will not place such an artificial restriction on the doctrine in order to achieve a certain result. Notably, Justice Baker never once discusses the best interests of the child, which is the polestar consideration in a case such as this one. Moreover, in the absence of any compelling reason to do so, we will not retreat from our decision in Robinson,
Dissenting Opinion
dissenting.
I respectfully dissent. I write separately to take the position that I articulated in Fletcher v. Scorza,
Dissenting Opinion
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,
[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,
The majority glosses over Troxel and barely touches upon Linder v. Linder,
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,
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,
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,
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.
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,
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,
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,
The majority’s holding ignores these fundamental principles.
In Linder, we stated that it was for the legislature to cure any defects in the statute. Linder,
I would reverse and dismiss.
. See, e.g., Finder v. State,
. The majority’s decision continues the erosion of parental rights recently seen in Fletcher v. Scorza,