November 25, 2005
Case Law Development: Parents Regaining Custody after Voluntarily Placing Children With Grandparents
When parents voluntarily place their children in the care of Grandparents, they may find courts unwilling to disturb these arrangements at a later date.
For example, the Arkansas appellate court recently affirmed the grant of custody of the daughter to the grandmother and step-grandfather over the mother and step-father. The daughter had lived with the grandmother most of her life, was excelling, and did not want to change high schools. Mother had left daughter in Grandmother's care when daughter was four. When she took her daughter away at age 14, Grandmother filed for custody. The majority applied a best interest standard that provided very little deference to mother: "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."
Three judges dissented, arguing that, in order to protect a parent's constitutional rights, the best interest of the child standard must be applied only after a finding that the biological parent is unfit. The dissent was especially concerned that parents would be unlikely to place children in the care of the grandparents when that would be in the children's best interests if the parents believe they may permanently lose custody.
Coffee v. Zolliecoffer, 2005 Ark. App. LEXIS 792 (November 9, 2005) Opinion on the web at
http://courts.state.ar.us/opinions/2005b/20051109/ca05-148.html (last visited November 25, 2005 bgf)