Rudolph ex rel. Rudolph v. Floyd

Robert L. Brown, Justice. This appeal comes to us from an order by the chancery court granting visitation to a paternal grandfather, after paternity was established, for a child born out of wedlock. The natural mother, Molly Rudolph, and the parents of the mother, James Rudolph and Marilyn Rudolph, appeal from the court’s order on the basis that applicable statutes do not authorize such visitations. We disagree and affirm the chancery court’s decision. The facts are not in dispute. On August 28, 1990, Molly Rudolph, who was then a minor, gave birth to a daughter. Prior to the birth, on July 17, 1990, appellee Brandon Floyd, who had been told by Molly Rudolph that he was not the father, filed a paternity petition in chancery court, asserting that he was indeed the father of the unborn child and requesting custody of the child and, alternatively, visitation. Appellees Arthur Floyd and Charlotte Floyd, who are the parents of Brandon Floyd, joined in that petition and prayed that the court grant them grandparental rights and visitation rights. On September 28, 1990, the chancery court heard the case and announced at the conclusion of the hearing that visitation of the grandparents is a “right recognized by the court” and that visitation by the father and grandfather would run concurrently. On December 17, 1990, the court entered an order establishing paternity in Brandon Floyd, awarding custody to Molly Rudolph, assessing child support against Brandon Floyd, and granting visitation rights to Arthur Floyd, as grandfather, to be exercised concurrently with Brandon Floyd until the child attained six years of age. The Rudolphs raise as their sole point for reversal the absence of statutory authority to award visitation rights to grandparents for children born out of wedlock. The issue of visitation rights and grandparents has been discussed comprehensively in Arkansas. See Drummer and Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259 (1985). There, the authors wrote: Grandparent rights, to the extent they may be said to exist, are derivative of their son’s or daughter’s parental rights. . . . Because a grandparent’s rights are only derivative, they may be contingent upon the establishment of paternity or maternity and are subject to divestment when parental rights are terminated. Grandparents, therefore, have a keen interest in most legal proceedings which affect their grandchildren. 39 Ark. L. Rev. at 261. In the case before us, paternity was established in Brandon Floyd by the chancery court, thus giving his father, Arthur Floyd, a legitimate interest in the child. We have held that rights existing in grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981). Here, a court of competent jurisdiction has awarded visitation rights to the grandfather, and a statute specifically authorizes a chancery court to grant visitation after a paternity finding: (a) Subsequent to the finding by the chancery court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court. Ark. Code Ann. § 9-10-109(a) (Supp. 1991). (Emphasis ours.) What the chancery court did in this case is precisely what § 9-10-109(a) contemplates. It awarded visitation rights to interested parties, that is, the father and grandfather, after paternity was established. We are mindful of the argument raised by the Rudolphs that one statute conferring grandparent visitation rights was amended in 1987 to provide visitation “if the marital relationship between the parents of the child has been severed by either death, divorce or legal separation.” Ark. Code Ann. § 9-13-103(a)(1) (1987). That statute, however, does not purport to exclude grandparent visitation after a paternity finding, and, again, Ark. Code Ann. § 9-10-109 (a) (Supp. 1991) specifically provides for visitation grants after paternity is found. In sum, where there is a statute providing for visitation after a paternity finding, and where a petition is filed by the grandfather requesting visitation, the chancery court operated well within its authority in granting visitation rights to the grandfather as well as the father. We hold that there was no abuse of discretion. Affirmed. Dudley and Hays, JJ., dissent.