# Coffee v. Zolliecoffer > Court of Appeals of Arkansas · December 14, 2005 · 93 Ark. App. 61 URL: https://www.frixlaw.com/law-library/cases/9755692 ## Case - **Full name:** David G. COFFEE and Kelly Lynn Coffee v. Gary ZOLLIECOFFER and Linda Zolliecoffer - **Court:** Court of Appeals of Arkansas - **Decided:** December 14, 2005 - **Citations:** 93 Ark. App. 61; 216 S.W.3d 636 - **Precedential status:** Published - **Opinion:** Concurrence by Vaught - **Judges:** John B. Robbins - **Cited by:** 2 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/9755692 ## Opinion text Larry D. Vaught, Jwith the dissent that this concurring. Although I agree with the dissent that this case should be reversed, I vote to affirm solely because I am required to follow the decisions of our supreme court. Unlike the majority, I do not believe that the most recent pronouncements on “parental preference” follow the precedent set in earlier cases or in the Arkansas statutes. Under Crosser v. Henson, 357 Ark. 635 , 187 S.W.3d 848 (2004), there is no longer a parental preference — only aparenta! “factor” to be considered when determining what is in the best interest of the child. The idea that a fit parent is presumed to be acting in a child’s best interest is not a novel idea. The case law in nearly every jurisdiction supports this proposition. See, e.g., G.H. v. K.G., 909 So. 2d 206 (Ala. Civ. App. 2005); Andrea S. v. David R., 116 P.3d 589 (Alaska 2005); Allen v. Proksch, 832 N.E.2d 1080 (Ind. Ct. App. 2005); Williams v. Phelps, 961 S.W.2d 40 (Ky. Ct. App. 1998); McDermott v. Dougherty, 869 A.2d 751 (Md. 2005); Johnson-Smolak v. Fink, 703 N.W.2d 588 (Minn. Ct. App. 2005); Thomas v. Purvis, 384 So. 2d 610 (Miss. 1980); Scott v. Scott, 147 S.W.3d 887 (Mo. Ct. App. 2004); In re Guardianship of Brenda B., 698 N.W.2d 228 (Neb. Ct. App. 2005); Bevins v. Witherbee, 798 N.Y.S.2d 245 (N.Y. App. Div. 2005); In re Marriage of Wilson, 110 P.3d 1106 (Or. Ct. App. 2005); Jordan v. Jackson, 876 A.2d 443 (Pa. Super. Ct. 2005); In re Clifford K., 619 S.E.2d 138 (W. Va. 2005). In the context of grandparent visitation, the Supreme Court of the United States has stated that the interest of parents in the care, custody, and control of their children is perhaps the oldest oif fundamental liberty interests. See Troxel v. Granville, 530 U.S. 57 (2000). Furthermore, in a long line of decisions, the Court has recognized that the “liberty” protected by the Due Process Clause includes the right of parents to establish a home, to bring up their children, and to direct the upbringing of their children without hindrance from the state. See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997); Santosky v. Kramer, 455 U.S. 755 (1982); Stanley v. Illinois, 405 U.S. 645 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). In Linder v. Linder, 348 Ark. 322 , 72 S.W.3d 841 (2002), our supreme court cited and quoted liberally from Troxel in establishing the parameters of grandparent visitation in Arkansas; the Linder court concluded that the appellant — a single, fit parent — had a fundamental right under the Fourteenth Amendment to be free from state intrusion on her parenting of her minor child. While the cases differ slightly when addressing visitation, custody, or guardianship, the polestar is always the same — the best interest of the child. However, a fit natural parent is presumed to be acting in the best interest of the child. This is the essence of the parental preference — that it is in the best interest of a child to be placed in the custody of a fit parent over a non-parent. Barring exceptional circumstances, this preference satisfies the best-interest standard. In this case, Kelly is a fit mother who, for her child’s benefit, allowed the appellees to participate in her child’s upbringing. She never abandoned the child, she participated in the child’s life, she provided support when she was able, and she is now in a stable and supportive marriage. That should be the end of the story, but it is not. In Crosser, supra, our supreme court concluded that “[determining whether the child is to be better off with one party versus another is precisely what the court should decide. The natural-parent preference and the fitness of that parent are not the absolute determinants in custody-modification matters, as our case law makes clear.” Therefore, we are bound not by a preference but by a determination of the trial court’s finding that the child is better off with the appellees than with Kelly. That finding is not clearly erroneous, and we must affirm. This conclusion is based on the holding of our state’s highest court, and I am bound by its reasoning. However, I feel compelled to express my concern that this precedent comes dangerously close to violating a fit parent’s fundamental right protected by the Fourteenth Amendment to raise a child without state intrusion. To me, a requirement that the trial court look beyond parental fitness, beyond our legislatively mandated natural-parent preference, and simply determine “whether the child is to be better off with one party versus another” too severely subjugates the rights of natural, fit parents and cannot be reconciled with their fundamental right to raise their children. With this pronouncement of law, we have thrown otherwise qualified parents into a subjective minefield pitting them against possibly more mature, more capable, or more affluent grandparents, siblings, or others. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755692. Public record. Not legal advice.