{ "id": 6140389, "name": "Virginia HENDERSHOT v. Judy A. HENDERSHOT and Tom V. Hendershot", "name_abbreviation": "Hendershot v. Hendershot", "decision_date": "1990-02-28", "docket_number": "CA 89-425", "first_page": "184", "last_page": "189", "citations": [ { "type": "official", "cite": "30 Ark. App. 184" }, { "type": "parallel", "cite": "785 S.W.2d 34" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "285 Ark. 95", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877657 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark/285/0095-01" ] }, { "cite": "50 Wis.2d 731", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671571 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/wis-2d/50/0731-01" ] }, { "cite": "137 Wis.2d 375", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8668794 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/wis-2d/137/0375-01" ] }, { "cite": "292 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871434 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0001-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-13-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "6 Yale L. & Pol'y Rev. 109", "category": "journals:journal", "reporter": "Yale L. & Pol'y Rev.", "year": 1988, "opinion_index": 0 }, { "cite": "39 Ark. L. Rev. 259", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1985, "pin_cites": [ { "page": "263" } ], "opinion_index": 0 }, { "cite": "332 A.2d 199", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1975, "opinion_index": 0 }, { "cite": "66 N.J. 426", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1946605 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nj/66/0426-01" ] }, { "cite": "273 Ark. 298", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719058 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0298-01" ] }, { "cite": "272 Ark. 51", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174938 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0051-01" ] }, { "cite": "251 Ark. 334", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1633332 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/ark/251/0334-01" ] } ], "analysis": { "cardinality": 529, "char_count": 8372, "ocr_confidence": 0.909, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30838612598649573 }, "sha256": "46ec3548c6f5b7037cfaa0b5920499dbe2413734bb24e2fac9fcee5de0f3ef7e", "simhash": "1:ef4abd7e5d40df20", "word_count": 1381 }, "last_updated": "2023-07-14T17:22:12.310921+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cooper and Rogers, JJ., agree." ], "parties": [ "Virginia HENDERSHOT v. Judy A. HENDERSHOT and Tom V. Hendershot" ], "opinions": [ { "text": "John E. Jennings, Judge.\nThe appellees, Tom and Judy Hendershot, were divorced in 1983, and Judy was awarded primary custody of their child, Chancy. In 1989 the appellant, Virginia Hendershot, Chancy\u2019s great-aunt, filed a \u201cPetition to Intervene and Other Relief\u2019 seeking to intervene in the divorce case and asking for court-ordered visitation with her grandnephew. Both of the child\u2019s parents opposed the petition and filed a motion to dismiss. After a hearing, the chancellor granted the motion. The argument on appeal is that this was error. We disagree and affirm.\nAlthough the appellant\u2019s claim was styled as a petition to intervene it was, in actuality, an independent action seeking court ordered visitation rights. The appellees\u2019 divorce action had been terminated by a final order some six years before this petition was filed. The petition did not seek custody, did not allege that appellant had previously had legal custody of Chancy, and did not allege that either parent was unfit. It did allege that appellant had, \u201cfor the most part, raised\u201d the defendant, Tom Hendershot; that she had cared for her grandnephew, Chancy, for extended periods of time; that she \u201cfigures significantly in the life\u201d of the child; that she stands \u201cin loco parentis\u201d with the child; and that it would be in the child\u2019s best interest that she be allowed to visit him. Appellant also alleged that Judy Hendershot had not permitted her to visit with the child for the past four weeks.\nAt the hearing on the motion to dismiss, counsel for the appellant was permitted by the court to make a statement as to what additional matters she thought that she could prove. While appellant\u2019s counsel characterizes her statement as \u201ctestimony,\u201d it is apparent that the trial court treated it as additional allegations and, in effect, permitted amendment of the pleadings under Ark. R. Civ. P. Rule 15, even though appellant made no specific request that the complaint be amended. The additional allegations made by appellant were: that she was an accountant, practicing in DeQueen, Arkansas; that Tom Hendershot had lived with the appellant from age eleven or twelve until he went to college; that she was at the hospital when Chancy was born; that the child had spent four Christmases with her; that she had voluntarily kept Chancy for a period of nine months in 1988 while Judy Hendershot went to Texarkana; and that she had spent thousands of dollars on the child.\nThe issue is whether a great-aunt may maintain an independent action for visitation with her grandnephew, when she has never had legal custody of the child, over the objections of both parents, neither of whom are alleged to be unfit to have custody of the child. To decide this issue it is necessary to examine our law relating to the visitation rights of grandparents. In Veazey v. Stewart, 251 Ark. 334, 472 S.W.2d 102 (1971)), the court stated that \u201cunder the general law there is no right of visitation enforceable by injunction in favor of a grandparent with respect to a grandchild when a natural parent having custody resists or objects.\u201d In Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981), the court said \u201cat common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding.\u201d In Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), an adoption case, the supreme court discussed the reason behind the rule:\nWhat the appellants ask us to do through this line of argument is to recognize some form of inherent \u2018grandpa-rental rights\u2019 beyond those previously bestowed. This we decline to do, not out of disregard for the genuine relational ties which naturally exist between grandparents and grandchildren, but rather for the reason that the sanctity of the relationship between the parent and the child must be the overriding concern. To create new, enforceable rights in grandparents could lead to results that would burden rather than enhance the welfare of children.\nIn 1975 the New Jersey Supreme Court in Mimkon v. Ford, 66 N.J. 426, 332 A.2d 199 (1975), said that \u201c[t]he courts have been substantially unanimous in denying a grandparent visitation privileges with grandchildren when the custodial parent objects.\u201d The court found five reasons cited in the cases for such a rule:\n(1) Ordinarily the parents\u2019 obligation to allow the grandparent to visit the child is moral, and not legal.\n(2) The judicial enforcement of grandparent visitation rights would divide proper parental authority, thereby hindering it.\n(3) The best interests of the child are not furthered by forcing the child into the midst of a conflict of authority and ill feelings between the parent and grandparent.\n(4) Where there is a conflict as between grandparent and parent, the parent alone should be the judge, without having to account to anyone for the motives in denying the grandparent visitation.\n(5) The ties of nature are the only efficacious means of restoring normal family relations and not the coercive measures which follow judicial intervention.\nSee also Brummer & Looney, Grandparent Rights in Custody, Adoption and Visitation Cases, 39 Ark. L. Rev. 259, 263 (1985).\nBecause of the position taken by most courts, the legislatures of all fifty states have now enacted statutes which permit the granting of visitation rights to grandparents. See Fernandez, Grandparent Access: A Model Statute, 6 Yale L. & Pol\u2019y Rev. 109 (1988). In Arkansas the first legislation regarding grandparent visitation was Act 320 of 1975 which authorized the chancellor to grant such visitation rights in connection with a divorce or custody proceeding. That act was repealed by more comprehensive legislation, Act 403 of 1985, which was subsequently amended by Act 17 of 1987, and is now codified at Ark. Code Ann. \u00a7 9-13-103. The code section provides that chancery courts are authorized to grant grandparents and great-grandparents reasonable visitation rights if such an order would be in the best interest of the child. The section applies only when the marital relationship between the child\u2019s parents has been severed by death, divorce, or legal separation. The section also contains a provision authorizing the court to award attorney\u2019s fees and costs against the petitioner if it finds the petition \u201cnot well-founded.\u201d\nIf, as the supreme court has held, there is no common law right to grandparent visitation, it must logically follow that a great-aunt would have no such right. The legislature has seen fit to change the rule by statute to allow such rights to grandparents and great-grandparents, under certain circumstances and with specific protective provisions for the parents. The statute is clear and cannot be read to include the appellant. Nor can we agree with appellant\u2019s argument that, because she helped raise Tom Hendershot, she should be treated as a grandparent under the statute. When the language of the statute is clear it is our duty to apply it as it is written. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987).\nIn reaching our conclusion we have also examined In re Custody of D.M.M., 137 Wis.2d 375, 404 N.W.2d 530 (1987), a case which appears on its face to support the appellant\u2019s position, even though it is not binding precedent for us. There the Wisconsin Supreme Court held that a statute authorizing trial courts to order visitation for grandparents and great-grandparents did not preclude a petition for visitation rights filed by a great-aunt. The case is distinguishable on two grounds: first, the great-aunt in that case had had legal custody for six years; and second, under prior Wisconsin case law such an action was not prohibited. See Weichman v. Weichman, 50 Wis.2d 731, 184 N.W.2d 882 (1971).\nWe are persuaded that the trial court was correct in granting the motion to dismiss.\nAffirmed.\nCooper and Rogers, JJ., agree.\nTo take a different view would mean that the trial court was obliged to decide the motion to dismiss based solely on the complaint as filed. See Guthrie v. Tyson Foods, 285 Ark. 95, 685 S.W.2d 164 (1985).", "type": "majority", "author": "John E. Jennings, Judge." } ], "attorneys": [ "Tucker & Thrailkill, by: Patricia A. Tucker, for appellant.", "Gordon L. Humphrey, Jr., Legal Services of Arkansas, for appellees." ], "corrections": "", "head_matter": "Virginia HENDERSHOT v. Judy A. HENDERSHOT and Tom V. Hendershot\nCA 89-425\n785 S.W.2d 34\nCourt of Appeals of Arkansas Division I\nOpinion delivered February 28, 1990\nTucker & Thrailkill, by: Patricia A. Tucker, for appellant.\nGordon L. Humphrey, Jr., Legal Services of Arkansas, for appellees." }, "file_name": "0184-01", "first_page_order": 208, "last_page_order": 213 }