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Law School Case Brief

Linder v. Linder - 348 Ark. 322, 72 S.W.3d 841 (2002)


The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the U.S. Supreme Court. 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. The "liberty of parents and guardians" includes the right to direct the upbringing and education of children under their control. The 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. There is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal 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. 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.


Prior to the death of the child's father, the paternal grandparents saw the child frequently. After the death of the child's father, the mother was resistant to allowing the paternal grandparents' visitation. Consequently, the paternal grandfather filed a petition for visitation in the Sebastian County Chancery Court. In the visitation petition, the grandfather alleged that he had a close and loving relationship with the child, and that the mother was unreasonably denying him access to his grandson. The grandfather proceeded in his petition under Ark. Code Ann. § 9-13-101, or the Grandparental Visitation Act (GPVA), asserting that the statute, which provided for grandparental custody, gave the chancery court the implied power to grant grandparental visitation. The petition did not invoke rights under the GPVA. Nor did the petition assert that Brandon would suffer harm if he did not see his grandfather, or that Lea Ann Linder was an unfit mother. When the mother was deposed, she asserted that she did not want the grandfather to have as much visitation as he wanted, but that she would agree to limited visitation. In its decision, the chancery court found that the mother was a fit parent, but ordered that the paternal grandparents be allowed to have visitation rights. The chancery court further refused to allow the mother to move to another state for a job. Despite the chancery court’s order, the mother fled the jurisdiction for approximately a year, then returned and appealed the chancery court’s order based on the constitutionality of the GPVA. According to the mother, the GPVA was unconstitutional as it allowed the State to interfere on her Fourteenth Amendment liberty interest in parenting her child.


Was the Arkansas Grandparental Visitation Act unconstitutional?


Yes, but only as applied to the mother.


The Court held that the Grandparental Visitation Act was unconstitutional as applied because so long as the mother was fit to care for the child, the Fourteenth Amendment right attached, and the State could not interfere without a compelling interest to do so; there had to be some other special factor such as harm to the child or custodial unfitness that justified State interference in the parent-child relationship.

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