Gerald ROBINSON v. Karen FORD-ROBINSON
04-1235
Supreme Court of Arkansas
May 5, 2005
208 S.W.3d 140
Finally, the trial court did not in fact shift the burden of proof to Graham. When Earl, as the plaintiff, alleged and proved the terms of Graham‘s general warranty that the roof would not leak, which express warranty negated any implied warranties, Earl bore the responsibility of proving only that the roof leaked. The trial court‘s findings regarding the terms of the agreement were not clearly against the preponderance of the evidence. I would affirm.
JIM GUNTER, Justice. This appeal raises the issue of whether, in a divorce proceeding, a circuit court may award visitation to a stepparent when the natural parent objects. We hold that a circuit court may award visitation to a stepparent standing in loco parentis over the natural parent‘s objection, and we affirm the circuit court‘s decision.
Gerald Robinson and Karen Ford-Robinson began living together in August 1997, married on January 28, 2000, separated on May 7, 2003, and divorced on November 4, 2003. During that time, Gerald had sole custody of his son, Austin, who was less than two years old when Karen moved in with them. Austin‘s biological mother relinquished her parental rights in a New York divorce action, and has had no contact with Austin since he was eight months old.
In Karen‘s initial complaint for divorce, she alleged that Gerald was not a fit and proper person to have custody of Austin and asked that she be awarded custody. In her second amended complaint, she did not ask for custody, but instead asked that she be awarded visitation with Austin. The circuit court granted full custody to Gerald and limited visitation to Karen, finding that Karen had stood in loco parentis to Austin since he was eighteen months old, that he recognized her as his mother, and that it would be in Austin‘s best interest to have visitation with Karen. Gerald filed a motion for reconsideration, which was deemed denied.
He then filed an appeal with the Arkansas Court of Appeals, arguing that the cases relied upon by the circuit court as authority to grant visitation1 have been overturned by Troxel v. Granville, 530 U.S. 57 (2000), and Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). He argued alternatively that, if they have not been overturned, Karen failed to meet the standard of proof set forth in Stamps v. Rawlins. The court of appeals disagreed and affirmed the circuit court‘s decision. Robinson v. Ford-Robinson, 88 Ark. App. 151, 196 S.W.3d 503 (2004). Gerald petitioned this court for review of the court of appeals’ decision, and we granted
We review domestic-relations cases de novo on the record, but will not reverse a trial court‘s findings of fact unless they are clearly erroneous. Id.; Medlin v. Weiss, 356 Ark. 588, 158 S.W.3d 140 (2004). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Medlin, supra. Finally, we give due deference to the superior position of the trial court to view and judge the credibility of the witnesses. This deference is even greater in cases involving child custody, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Hunt v. Perry, 355 Ark. 303, 138 S.W.3d 656 (2003); Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).
Our de novo review of the record reveals the following. Gerald described Karen‘s relationship with Austin as one of “buddies.” He testified that he and Karen discussed her adoption of Austin, but he told her it was not an option because Austin already had a biological mother. He admitted that he had described Karen as Austin‘s mother both in conversations and in writing over the years. He also acknowledged that he had executed powers of attorney for Karen so that she could get medical care for Austin when he was away, although he suggested that this was not unusual because he was in the military.
He testified that he objected to Karen having any contact with Austin after the divorce for several reasons. First, Karen told Gerald that one of the reasons she wanted a divorce was that she was a nanny, not a wife or mother. Second, since she left, Austin has not asked to spend any time with her and has never cried for her. Finally, Karen was seeing someone; although Gerald admitted he was also seeing someone with whom he had a sexual relationship. He felt that visitation with Karen would confuse Austin in the event Gerald remarried and introduced a new “mother” into Austin‘s life.
Karen described herself at trial as Austin‘s mother. She testified that she entered Austin‘s life when he was approximately
Karen‘s mother testified that Karen and Austin had a very close relationship and that Karen was his mother in every sense of the word. She also stated that Austin referred to Karen as Mommy very early in their relationship. She believed Austin would benefit from visitation with Karen.
The assistant director of the after-school-care facility attended by Austin testified that she did not even know Karen was Austin‘s stepmother until Karen brought cookies to Austin after she and Gerald divorced. She testified that Austin was not enthused to see her. Serena Dempsey, who had been babysitting for Austin once or twice a month since the divorce, testified that she had not seen Austin cry because he missed his mother and that when she asked him if he missed his mother, Austin said “no, not really.” Gerald‘s mother testified that Austin was worried about his daddy being by himself and did not understand why his mother was “doing this” to his daddy.
Gerald‘s claim on appeal is that the circuit court erred in awarding visitation with Austin to Karen. His first argument supporting this claim is that Stamps — one of the cases upon which the circuit court relied for authority to grant visitation to a stepparent — was overturned by the United States Supreme Court‘s decision in Troxel v. Granville, 530 U.S. 57 (2000), and our decision in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002). We reject this argument.
In Troxel, a plurality of the United States Supreme Court held that the State of Washington‘s grandparent-visitation statute was unconstitutional as applied in that case due in large measure to its “breathtakingly broad” scope allowing “any person” to peti-
that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.” Post, at 2079 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.
In Linder, we reviewed the constitutionality of Arkansas‘s grandparent-visitation statute in light of Troxel, and held that it was unconstitutional as applied. Like the Washington statute reviewed in Troxel, our statute did not give any presumptive or special weight to the parent‘s decision that grandparent visitation was not in the best interest of her child. Indeed, the statute‘s requirement that the court issue written findings when denying visitation, but not when granting visitation, effectively placed the burden of proof on the parent, in direct contravention of Troxel. Because the trial court had already determined that the mother in Linder was a fit parent — for all purposes except determining visitation — we held that the
Moreover, neither Troxel nor Linder precludes the visitation awarded by the circuit court in this case. The facts in the present case are distinguishable from those in both Troxel and Linder. First, 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 parentis 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.
In Standridge v. Standridge, 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
Finally, Gerald argues that if Stamps was not overturned by Troxel and Linder, the circuit court erred in holding that Karen stood in loco parentis to Austin. In this case, Karen was the only mother Austin had ever known, and Austin did not know she was not his birth mother until first grade. She had served as Austin‘s mother for six years. Karen described herself as Austin‘s mother; Austin called her Mommy. The fact that she told Gerald one of the reasons she left was because she was a nanny, rather than a wife or mother, appears from her testimony to have had more to do with her impression of her relationship with Gerald than with Austin. After a de novo review, we hold that the circuit court‘s finding that Karen stood in loco parentis to Austin was not clearly erroneous.
Affirmed.
GLAZE, J., dissents.
TOM GLAZE, Justice, dissenting. The majority opinion makes an attempt to distinguish our case in Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002), from the instant case. In doing so, this court relies heavily on our decision in Stamps v. Rawlings, 297 Ark. 370, 761 S.W.2d 933 (1988), and a court of appeals case, Golden v. Golden, 57 Ark. App. 143, 942 S.W.2s 282 (1997). Both of these cases preceded Linder and Troxel v. Granville, 530 U.S. 57 (2000), but the majority court relies on them as holdings that recognize a preference for a fit natural parent, but also would allow a stepparent custody or visitation rights, if the judge believes the best interests of the child warrant such custody or visitation.
At this point, it is significant to mention that the majority opinion relies on most of what the Stamps case holds, but then (confounding to me) it seeks to distance itself from Stamps by stating that it did not find that natural-parent presumption (preference?) governs this case, as this case involves visitation by a stepparent, rather than custody.
The majority court seems to overlook the fact that our court in Linder fully adopted the Supreme Court‘s plurality opinion and the Court‘s rationale in Troxel. The language employed by Troxel, and by our court in Linder, is much stronger in favoring a fit parent than that found in our prior case law where a parent‘s custody and visitation rights were in issue when a grandparent, stepparent, or other third party sought the custody or visitation of a child.
Unlike our prior Arkansas case law, our court in Linder began its review with the analysis that Lea Ann Linder, a single parent, had a fundamental right under the
The Linder case involved grandparents’ visitation rights given them with their grandson by the trial court, even though the boy‘s mother, Lea Ann, was declared fit. Lea Ann successfully reversed the lower court‘s award of visitation rights to the grandparents, but this court upheld Arkansas’ Grandparent Visitation Act (GPVA) as facially constitutional, but concluded the act had been erroneously applied by the trial court. See
For these reasons, I respectfully dissent.