Lea Ann Linder, Carolyn Greene, and Cleta Johnson v. Bill Linder and Mildred Sims

Summary

The Supreme Court of Arkansas held that the Grandparental Visitation Act, Ark. Code Ann. Sec. 9-13-103, was not facially unconstitutional but was unconstitutional as applied, because it accorded no presumptive or special weight to a fit custodial mother's decision and, by requiring written reasons for denials but not grants, shifted the burden of proof to her, infringing her Fourteenth Amendment due-process liberty interest. Applying strict scrutiny, the court concluded that a finding of unfitness confined to visitation decisions is not a compelling state interest justifying state interference, and it declined to judicially rewrite the statute, reversing and dismissing the case so that any repair must come from the General Assembly. It also denied the appellees' motion to dismiss grounded in law of the case and res judicata, since no prior appellate opinion existed and the constitutional issue matured only after Troxel. Justice Jim Hannah concurred in part and dissented in part: he agreed the statute was not facially invalid but would have upheld it as applied and remanded only for reconsideration of the amount of visitation awarded.