§ 9-13-103. Visitation rights of grandparents when child is in custody of parent — Definitions

(a) For the purposes of this section:

1. (1) “Child” means a minor under eighteen (18) years of age of whom the custodian has control and who is:

   1. (A) The grandchild of the petitioner; or

   2. (B) The great-grandchild of the petitioner;

2. (2) “Counseling” means individual counseling, group counseling, or other intervention method;

3. (3) “Custodian” means the custodial parent of the child with the authority to grant or deny grandparental visitation;

4. (4) “Mediation service” means any formal or informal mediation; and

5. (5) “Petitioner” means any individual who may petition for visitation rights under this section.

(b) A grandparent or great-grandparent may petition a circuit court of this state for reasonable visitation rights with respect to his or her grandchild or grandchildren or great-grandchild or great-grandchildren under this section if:

1. (1) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation;

2. (2) The child is illegitimate and the petitioner is a maternal grandparent or great-grandparent of the illegitimate child;

3. (3) The child is illegitimate, the petitioner is a paternal grandparent or great-grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction;

4. (4) The court finds by clear and convincing evidence that the primary custodian of the child is unfit;

5. (5)

   1. (A) The court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the best interest of the child.

   2. (B) In determining the best interest of the child, the court may consider one (1) or more of the following factors:

      1. (i) The love, affection, and other emotional ties that exist between the petitioner and the child;

      2. (ii) The length and quality of the relationship between the petitioner and the child;

      3. (iii) The mental and physical health of the petitioner, the parent, and the child;

      4. (iv) The potential detriments and benefits to the child if visitation is granted or denied;

      5. (v) The wishes and preferences of the child as to visitation;

      6. (vi) The motivation of the parent in denying or prohibiting visitation between the petitioner and the child;

      7. (vii) The motivation of the grandparent or great-grandparent in petitioning for visitation with child;

      8. (viii) Any history of abuse or neglect of the child;

      9. (ix) Any history of domestic violence in the home of the child;

      10. (x) Whether there has been a court-ordered termination of the parental rights of a parent to whom the petitioner is related; and

      11. (xi) Any other factor that impacts the best interest of the child; or

6. (6) A stepparent of either biological parent of the child adopts the child due to the death of the biological parent of the child.

(c)

1. (1) There is a rebuttable presumption that a custodian’s decision denying or limiting visitation to the petitioner is in the best interest of the child.

2. (2) To rebut the presumption, the petitioner shall prove by a preponderance of the evidence the following:

   1. (A) The petitioner has established a significant and viable relationship with the child for whom he or she is requesting visitation; and

   2. (B) Visitation with the petitioner is in the best interest of the child.

(d) To establish a significant and viable relationship with the child, the petitioner must prove by a preponderance of the evidence the following:

1. (1) The child resided with the petitioner for at least six (6) consecutive months with or without the current custodian present;

2. (2) The petitioner was the caregiver to the child on a regular basis for at least six (6) consecutive months;

3. (3) The petitioner had frequent or regular contact with the child for at least twelve (12) consecutive months; or

4. (4) Any other facts that establish that the loss of the relationship between the petitioner and the child is likely to harm the child.

(e) To establish that visitation with the petitioner is in the best interest of the child, the petitioner shall prove by a preponderance of the evidence the following:

1. (1) The petitioner has the capacity to give the child love, affection, emotional support, and guidance;

2. (2) The loss of the relationship between the petitioner and the child is likely to:

   1. (A) Harm the child;

   2. (B) Cause emotional distress to the child;

   3. (C) Result in the emotional abuse of the child; or

   4. (D) Result in the emotional neglect of the child;

3. (3) The petitioner is willing to cooperate with the custodian if visitation with the child is allowed; and

4. (4) Awarding grandparent visitation would not interfere with the parent-child relationship.

(f)

1. (1) An order granting or denying visitation rights to grandparents and great-grandparents shall be in writing and shall state any and all factors considered by the court in its decision to grant or deny visitation under this section.

2. (2)

   1. (A) If the court grants visitation to the petitioner or petitioners, the visits may occur without regard to which parent has physical custody of the child.

   2. (B) Visits with a paternal grandparent or great-grandparent may occur even when the child is in the custody of the mother, and visits with a maternal grandparent or great-grandparent may occur even when the child is in the custody of the father.

3. (3)

   1. (A) If the court grants visitation to the petitioner under this section, then the visitation shall be exercised in a manner consistent with all orders regarding custody of or visitation with the child unless the court makes a specific finding otherwise.

   2. (B) If the court finds that the petitioner’s visitation should be restricted or limited in any way, then the court shall include the restrictions or limitations in the order granting visitation.

4. (4) An order granting or denying visitation rights under this section is a final order for purposes of appeal.

5. (5) After an order granting or denying visitation has been entered under this section, the custodian or petitioner may petition the court for the following:

   1. (A) Contempt proceedings if one (1) party to the order fails to comply with the order;

   2. (B) To address the issue of visitation based on a change in circumstances; or

   3. (C) To address the need to add or modify restrictions or limitations to visitation previously awarded under this section.

(g)

1. (1) A court may order mediation services to resolve a visitation issue under this section if:

   1. (A) Mediation services are available;

   2. (B) Both parties agree to participate in mediation services; and

   3. (C) One (1) or both of the parties agree to pay for mediation services.

2. (2) Records, notes, reports, or discussions related to the mediation service shall not be used by the court to determine visitation under this section.

(h)

1. (1) A court may order counseling to address underlying matters surrounding the visitation issue under this section if:

   1. (A) Counseling is available;

   2. (B) Both parties agree to participate in counseling; and

   3. (C) One (1) or both of the parties agree to pay for counseling.

2. (2) Records, notes, reports, or discussions related to the counseling shall not be used by the court to determine visitation under this section.

(i) This section does not apply to dependency-neglect proceedings conducted under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.