# Bowen v. Bowen > Court of Appeals of Arkansas · June 27, 2012 · 2012 Ark. App. 403 URL: https://www.frixlaw.com/law-library/cases/5114880 ## Case - **Full name:** Nicholas BOWEN v. Letizia and David BOWEN - **Court:** Court of Appeals of Arkansas - **Decided:** June 27, 2012 - **Citations:** 2012 Ark. App. 403; 421 S.W.3d 339; 2012 Ark. App. LEXIS 525 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Abramson, Agree, Brown, Hoofman, Martin, Pittman, Vaught - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5114880 ## Opinion text BROWN, J., dissenting. I must respectfully dissent from the majority holding in this case. | i.sThe majority notes that grandparents only have standing under the statute to seek visitation if the marriage of the parents has been severed. The majority then speculates that this requirement “must (at least in great part) be in response” to a concern that the custodial parent might bear animosity toward the noncustodial parent and/or grandparents, whereas when the marriage is intact, “the grandparents have a greater ‘voice’ in the situation because their own child is a player in the parenting paradigm.” The majority then observes that “in this case the increased amount of visitation that Letizia and David sought (and were denied) was exclusively at their omi son’s discretion.” (Emphasis in original.) This would seem to suggest that because the appellees were being denied access to the grandchildren by their own son, the statute does not apply to them, or that their standing is somehow diminished. There is no basis for that in the text of the statute, nor has the majority cited any other authority to support such a conclusion or suggestion. In fact, a strict construction of the text of the statute indicates the opposite, as it specifically provides that when visitation is granted by a court, “the visits may occur without regard to which parent has physical custody of the child.” 1 Additionally, the statute specifically gives standing to both maternal and paternal grandparents of illegitimate children, without reference to whether the grandparent is related to the custodial parent. 2 Grandparent visitation is a statutorily created right and in derogation of |ucommon law; therefore, we must strictly construe the statute. 3 The statute is neutral with regard to the relationship of the grandparents to the parent restricting visitation, and should be applied in a neutral fashion. As the majority acknowledges, there is no dispute that the only issue before us is whether appellees met the statutory requirement to show that the loss of the relationship between them and their grandchildren was likely to harm the children; the statute does not require a showing of actual harm. It is undisputed, either in the record below or by this court on appeal, that appellees had a significant and viable relationship with their grandchildren, that the relationship was beneficial to the children and in their best interest, 4 and that the relationship had been effectively denied by appellant. However, the majority asserts, “There is a substantial difference between a relationship benefiting a child and the denial of [that] relationship harming a child.” The reasoning behind identifying such a “substantial difference” is anything but clear. How can one rationally say that the loss of a beneficial, loving, and significant relationship with a grandparent is not harmful, or at least evidence of likely harm? To say otherwise is contrary to all logic and reason, not to mention human experience and common sense. The harm is that the Bowen children have been denied a benefit they once enjoyed. At the very |15least, the denial of such a benefit constitutes evidence of likely harm — which is all the statute expressly requires — and provides a basis for the circuit court’s ruling. If, as the majority contends, the legislature intended to set a higher burden of proof on the element of likely harm, that intent was expressed nowhere in the statute. It is the function of the General Assembly, not this court, to impose more strenuous requirements or provide any missing clarity. 5 The circuit court in this case, after evaluating the witnesses and their testimony, found that it was in the best interest of the Bowen children to order visitation with their grandparents, so that the children could once again enjoy the benefits of that relationship. Based on the evidence presented and the deference with which we are required to treat the circuit court’s findings of fact and credibility, I cannot see how the court’s grant of visitation can be deemed an abuse of discretion. In fact, the majority opinion is ambiguous as to which standard of review was applied to the ruling and findings of the circuit court. The opinion states first that the clearly erroneous standard applies in visitation cases, then says that when visitation is at issue, the circuit court’s decision will not be reversed absent an abuse of discretion. The remainder of the opinion does not clarify whether the circuit court is being reversed because the majority |lfiwas “left with a definite and firm conviction that a mistake has been made” 6 or because the circuit court applied its discretion “thoughtlessly, without due consideration, or improvidently.” 7 It is of paramount importance that this court not only keep a standard of review firmly in mind when addressing the merits of a case, but that future litigants, their attorneys, and circuit courts are given clear notice as to what standard of review will govern their cases on appeal. Further regarding the proper scope of this court’s review, I note that the majority’s opinion focuses on parental rights, when the polestar for making judicial determinations concerning visitation is supposed to be the best interest of the child, 8 In cases involving child visitation or custody, this court is required to show an exceptionally high degree of deference to the circuit court’s superior position to evaluate witnesses, them testimony, and the best interest of the child. 9 I do not believe that the majority has given the proper deference to the circuit court’s broad discretion to weigh conflicting testimony and determine the best interest of the children, which the record in this case makes clear was the basis of the circuit court’s ruling. 117The majority opinion cites the recent case of In re Guardianship of S.H. 10 in support of the proposition that “a trial court cannot override a fit parent’s wishes based solely on its personal view of the children’s best interests.” To the extent this insinuates that the circuit court exercised personal rather than professional judgment, there is no evidence of that in the record. Moreover, S.H. is so different from this case as to be inapposite. S.H. involved a mother’s effort to terminate the grandparents’ permanent guardianship of her daughter — that is, the question of whether she would have any parenting role at all. Furthermore, S.H. was taken up by our supreme court specifically to address the constitutionality of a guardianship-termination statute. No such question is before this court. Contrary to what the majority opinion suggests, S.H. does not operate to limit the discretion of the circuit court to determine the best interest of the child in visitation cases. Instead of adhering to the applicable standard of review, the majority has chosen to focus on a discussion of parents’ constitutional rights, which is improper since no constitutional question was raised for this court to consider. Regrettably, the best interest of the children in this case — which the statute clearly prioritizes and which the circuit court was in a far better position to determine — seems to have been lost in the shuffle. ABRAMSON, J., joins in this dissent. . Ark.Code Ann. § 9 — 13—103(f)(2)(A) (Repl. 2009). . Ark.Code Ann. § 9-13-103(b)(2), (3). . Pippinger v. Benson, 2011 Ark. App. 442 , 384 S.W.3d 614 (citing Recinos v. Zelk, 369 Ark. 7 , 250 S.W.3d 221 (2007)), vacated on other grounds by In re Adoption of J.P., 2011 Ark. 535 , 385 S.W.3d 266 . . Appellant even testified that, in his opinion, it was in his children's best interest to have a relationship with his parents. . McMillan v. Live Nation Entm't, Inc., 2012 Ark. 166 , 401 S.W.3d 473 (citing Oldham v. Morgan, 372 Ark. 159 , 271 S.W.3d 507 (2008) (acknowledging that the General Assembly, not the court, has the function of offering task of rewriting statutes to the General Assembly)). In McMillan, our supreme court stated that it "will not by judicial fiat amend the statute to address concerns that are properly the province of the General Assembly. It is the function of the General Assembly to offer remedial legislation to address perceived statutory inadequacies.” 2012 Ark. 166, at 6 , 401 S.W.3d 473 . . See, e.g., Reed v. Ark. Dep't of Human Servs., 2012 Ark. App. 369 , 417 S.W.3d 736 (stating the "clearly erroneous” standard of review). . Oldham v. Morgan, supra (stating the "abuse of discretion” standard of review). . Morris v. Dickerson, 2012 Ark.App. 129 , 388 S.W.3d 910 (citing Hudson v. Kyle, 365 Ark. 341 , 229 S.W.3d 890 (2006)). . Id. . 2012 Ark. 245 , 409 S.W.3d 307 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5114880. Public record. Not legal advice.