Jones v. Jones

2013 UT App 174_________________________________________________________
THE UTAH COURT OF APPEALS
ELLIE JONES AND TRACY JONES,
Petitioners and Appellees,
v.
SHARON JONES,
Respondent and Appellant.
Opinion
No. 20110998‐CA
Filed July 11, 2013
Third District, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 094904262
Anthony C. Kaye, Angela W. Adams, and
Emily Wegener, Attorneys for Appellant
Bryant J. McConkie, Attorney for Appellees
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE STEPHEN L. ROTH concurred. JUDGE JAMES Z. DAVIS
dissented, with opinion.
VOROS, Judge:
¶1 Sharon Jones (Mother) appeals the trial court’s order
awarding visitation with Mother’s daughter (Child) to Child’s
paternal grandparents, Ellie and Tracy Jones (Grandparents).
Mother claims a fundamental constitutional right in the control of
Child and contends that Utah’s Grandparent Visitation Statute is
not narrowly tailored to serve a compelling state interest as applied
to her under the circumstances of this case. We agree and reverse.
Jones v. Jones
BACKGROUND
¶2 Mother married Tracy Jones Jr. (Father) in 2006. Child was
born in November 2007, and Mother and Father separated in
January 2009. Mother and Father shared equal custody of Child
following their separation. Between January and March 2009,
Father lived with Grandparents, who helped care for Child while
she was in Father’s custody. After Father moved out of
Grandparents’ home, Ellie Jones continued to visit him two to three
times a week. Father died in May 2009, when Child was
approximately eighteen months old. Mother continued to facilitate
contact between Child and Grandparents during the months
immediately following Father’s death. On July 24, 2009,
Grandparents took Child to a baseball game and brought her home
after 10:30 p.m. Although Grandparents believed that Mother had
agreed for them to bring Child home late, Mother later expressed
concern about the late hour.
¶3 Following the baseball game, Mother denied several of
Grandparents’ requests to spend time with Child and also
requested that Grandparents not call Child on weeknights.
Grandparents then wrote Mother an email requesting visits with
Child two full weekends per month, visits on holidays and
birthdays, an extended visit each summer, and two phone calls per
week. When Mother did not respond, Grandparents threatened to
sue for grandparent visitation. Mother then responded with an
email outlining concerns she had about permitting Child to
continue visiting Grandparents and informing them that she
intended to limit their contact with Child to one phone call per
month and one visit every other month for a few hours in the
presence of Mother or one of Mother’s family members.
Grandparents responded that they would not submit to being
supervised and that they intended to initiate court proceedings.
¶4 On September 24, 2009, Grandparents filed a Verified
Petition to Establish Grandparent Visitation Rights pursuant to the
Grandparent Visitation Statute, see Utah Code Ann. § 30‐5‐2
20110998‐CA 2 2013 UT App 174Jones v. Jones
(LexisNexis 2007), requesting visitation comparable to that
afforded to noncustodial parents under a separate statutory
provision, see id. § 30‐3‐35.5(e) (Supp. 2012).1 Their petition alleged
the existence of factors tending to rebut the statutory presumption
“that a parent’s decision with regard to grandparent visitation is in
the grandchild’s best interests” (the parental presumption). See id.
§ 30‐5‐2(2) (2007); see also Troxel v. Granville, 530 U.S. 57, 68, 70
(2000) (plurality opinion) (holding that due process requires that a
fit parent’s decision regarding grandparent visitation be given
“special weight”).
¶5 Grandparents did not see Child again until July 2011, when
they saw her as part of a Grandparent Time Evaluation. By that
time, Child was approximately three and a half years old. At the
evaluation, Child “exhibited no distress being with [Grandparents];
recognized them; played board games and sang a song; and called
Grandparents ‘Nana and Papa.’” The evaluator “concluded that
[Grandparents] were appropriate, fit, and proper to have visitation
with [Child].” She recommended that Grandparents be awarded
phone calls with Child and visitation one day per month, starting
with three hours per visit and gradually increasing to overnight
visits as Child gets older.
¶6 A trial was held on October 12 and 13, 2011. The trial court
issued its Findings of Fact and Conclusions of Law on December
21, 2011, in which it considered the statutory factors and concluded
that Grandparents had rebutted the parental presumption by clear
and convincing evidence. Specifically, it concluded that
Grandparents were “fit and proper persons to have visitation with
[Child],” that “[v]isitation with [Child] was denied and
unreasonably limited” by Mother, that Grandparents “had a
substantial relationship with [Child] until the denial of visitation
and the denial has likely caused harm to [Child],” that Father had
1
In the course of the proceedings, Grandparents’ request
for visitation was dramatically reduced from their initial request.
20110998‐CA 3 2013 UT App 174Jones v. Jones
died, and that “[v]isitation is in the best interest of [Child].” As a
result of its findings, the trial court ordered grandparent visitation
amounting to approximately thirty‐six hours per month. Mother
appeals.
ISSUE AND STANDARD OF REVIEW
¶7 The central issue on appeal is Mother’s challenge to the
constitutionality of the Grandparent Visitation Statute, as applied
under the circumstances of this case. “Constitutional challenges to
statutes present questions of law, which we review for
correctness.” State v. Green, 2004 UT 76, ¶ 42, 99 P.3d 820 (citation
and internal quotation marks omitted). Nevertheless, “legislative
enactments are presumed to be constitutional, and those who
challenge a statute or ordinance as unconstitutional bear the
burden of demonstrating its unconstitutionality.” Id. (citation and
internal quotation marks omitted).
ANALYSIS
As Applied to Mother, the Grandparent Visitation Statute Is Not
Narrowly Tailored To Serve a Compelling State Interest.
¶8 The Grandparent Visitation Statute allows a grandparent to
petition the court for grandparent–grandchild visitation over the
objection of the grandchild’s parents. The statute acknowledges “a
rebuttable presumption that a parent’s decision with regard to
grandparent visitation is in the grandchild’s best interests.” Utah
Code Ann. § 30‐5‐2(2). However, the statute allows the court to
override the parent’s decision when the parental presumption has
been rebutted. Id. The statute identifies several factors relevant to
this analysis:
20110998‐CA 4 2013 UT App 174Jones v. Jones
[T]he court may override the parent’s decision and
grant the petitioner reasonable rights of visitation if
the court finds that the petitioner has rebutted the
presumption based upon factors which the court
considers to be relevant, such as whether:
(a) the petitioner is a fit and proper person to
have visitation with the grandchild;
(b) visitation with the grandchild has been
denied or unreasonably limited;
(c) the parent is unfit or incompetent;
(d) the petitioner has acted as the grandchild’s
custodian or caregiver, or otherwise has had a
substantial relationship with the grandchild, and the
loss or cessation of that relationship is likely to cause
harm to the grandchild;
(e) the petitioner’s child, who is a parent of the
grandchild, has died, or has become a noncustodial
parent through divorce or legal separation;
(f) the petitioner’s child, who is a parent of the
grandchild, has been missing for an extended period
of time; or
(g) visitation is in the best interest of the
grandchild.
Id. Grandparents seeking court‐ordered visitation must overcome
the parental presumption by clear and convincing evidence. Uzelac
v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 28, 144 P.3d 1083.
A. Because a Parent’s Right Is Fundamental, Strict Scrutiny
Applies.
¶9 Mother contends on appeal that any intrusion into a parent’s
constitutional liberty interest must be narrowly tailored to achieve
a compelling state interest. She argues that “constitutional law
requires a compelling state interest before visitation may be
20110998‐CA 5 2013 UT App 174Jones v. Jones
ordered, and no fact findings or trial evidence identify a
compelling interest here.” We agree.
¶10 “[T]he interest of parents in the care, custody, and control of
their children . . . is perhaps the oldest of the fundamental liberty
interests recognized by [the United States Supreme] Court.” Troxel
v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (citing Prince
v. Massachusetts, 321 U.S. 158, 166 (1944); Pierce v. Society of Sisters,
268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 401
(1923)). Parents have a fundamental right “to make decisions
concerning the care, custody, and control of their children.” Troxel,
530 U.S. at 66 (citing Washington v. Glucksberg, 521 U.S. 702, 720
(1997); Santosky v. Kramer, 455 U.S. 745, 753 (1982); Parham v. J.R.,
442 U.S. 584, 602 (1979); Quilloin v. Walcott, 434 U.S. 246, 255 (1978);
Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Stanley v. Illinois, 405
U.S. 645, 651 (1972)).
¶11 The Utah Constitution similarly protects this fundamental
right. “In a long line of precedent, [the Utah Supreme Court] has
recognized parental rights as a fundamental component of liberty
protected by article I, section 7 [of the Utah Constitution].” Jensen
ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (citing
Mill v. Brown, 88 P. 609, 613 (Utah 1907)). Indeed, as our Legislature
recently recognized, “[t]he right of a fit, competent parent to raise
the parent’s child without undue government interference is a
fundamental liberty interest that has long been protected by the
laws and Constitution of this state and of the United States, and is
a fundamental public policy of this state.” Utah Code Ann. § 78A‐6‐
503(9) & amend. notes (LexisNexis 2012). “[A]lthough
‘fundamental,’ parental rights are not absolute. A parent’s rights
must be balanced against the state’s important interest in
protecting children from harm.” Jensen, 2011 UT 17, ¶ 74 (citations
omitted).
¶12 In contrast, “[h]istorically, grandparents had no legal right
of visitation.” Campbell v. Campbell, 896 P.2d 635, 642 n.15 (Utah Ct.
20110998‐CA 6 2013 UT App 174Jones v. Jones
App. 1995) (citing Laurence C. Nolan, Honor Thy Father and Thy
Mother: But Court‐Ordered Grandparent Visitation in the Intact
Family?, 8 BYU J. Pub. L. 51, 57 (1993)). “It is a fundamental tenet
of our common law that ‘the only persons having any actually
vested interest in the custody of a child cognizable by the law are
the parents.’” Jones v. Barlow, 2007 UT 20, ¶ 39, 154 P.3d 808(quoting Wilson v. Family Servs. Div., 554 P.2d 227, 229 (Utah 1976)
(adjudicating the interest of a grandmother)). “Other relatives of a
child merely have ‘some dormant or inchoate right or interest in
the custody and welfare of children’ that matures only upon the
death or termination of the rights of the parents.” Id. (quoting
Wilson, 554 P.2d at 230–31). Accordingly, the legal interests of
grandparents are typically protected by a state statute similar to the
one before us. Such statutes inevitably raise the question of the
extent to which the state may impinge upon the parent’s
fundamental right to control of her child for the purpose of
vindicating a grandparent’s “dormant or inchoate right or interest
in the custody or welfare of children.” Id. (citation and internal
quotation marks omitted).
¶13 The question before us is what level of scrutiny to apply in
reviewing a statute that to some degree circumscribes a parent’s
fundamental right to decide questions involving the care, custody,
and control of her child. Ordinarily, “the [federal] Due Process
Clause prohibits States from infringing fundamental liberty
interests, unless the infringement is narrowly tailored to serve a
compelling state interest.” Lawrence v. Texas, 539 U.S. 558, 593
(2003) (emphasis omitted). Similarly, our supreme court has stated
that under the Due Process Clause of the Utah Constitution, a
“statute that infringes upon [a parent’s] ‘fundamental’ right is
subject to heightened scrutiny and is unconstitutional unless it (1)
furthers a compelling state interest and (2) ‘the means adopted are
narrowly tailored to achieve the basic statutory purpose.’” Jensen,
2011 UT 17, ¶ 72 (quoting Wells v. Childrenʹs Aid Socʹy of Utah, 681
P.2d 199, 206 (Utah 1984)).
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¶14 However, in ruling on the constitutionality of grandparent
visitation statutes, neither high court has stated that heightened
scrutiny applies. In Troxel v. Granville, the Supreme Court
invalidated the application of a grandparent visitation statute on
the ground that it unconstitutionally infringed on the parent’s
fundamental right. 530 U.S. 57, 73 (2000) (plurality opinion).2 A
plurality of the Court stated that the “breathtakingly broad” statute
involved in that case effectively allowed a judge to “disregard and
overturn any decision by a fit custodial parent concerning visitation
whenever a third party affected by the decision files a visitation
petition, based solely on the judge’s determination of the child’s
best interests.” Id. at 67. Justice Thomas concurred in the judgment,
advocating the strict scrutiny standard and stating that it was not
satisfied. See id. at 80 (Thomas, J., concurring in the judgment).
Despite Justice Thomas’s chiding, the plurality declared the statute
unconstitutional as applied to that case without identifying the
applicable level of scrutiny.
¶15 In Uzelac v. Thurgood, our supreme court upheld the
Grandparent Visitation Statute against a federal constitutional
challenge. See Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46,
¶¶ 1–2, 144 P.3d 1083. The court compared Utah’s statute to the
statute held unconstitutional in Troxel. See id. ¶¶ 19–36. The court
concluded that Utah’s statute avoided the errors identified in Troxel
and thus was “not unconstitutional under Troxel” either facially or
as applied. See id. ¶¶ 35, 38. The court further addressed the
“standard of proof by which the parental presumption must be
rebutted,” concluding that “a clear and convincing standard of
proof should apply to satisfy due process requirements.” Id. ¶ 28(citing Santosky v. Kramer, 455 U.S. 745, 769 (1982) (“We hold that
such a standard adequately conveys to the factfinder the level of
2
For a chart analyzing the six splintered opinions in
Troxel, see Tracy C. Schofield, Comment, All the Better to Eat You
With, My Dear: The Need for a Heightened Harm Standard in Utah’s
Grandparent Visitation Statute, 2006 BYU L. Rev. 1669, 1699.
20110998‐CA 8 2013 UT App 174Jones v. Jones
subjective certainty about his factual conclusions necessary to
satisfy due process.”)).
¶16 But the clear and convincing standard is a standard of
evidentiary proof, not a level of constitutional scrutiny. It is one
thing to require that “factors which the court considers to be
relevant” to grandparent visitation, “such as” those listed in section
30‐5‐2(2), must be found by clear and convincing evidence. See
Utah Code Ann. § 30‐5‐2(2) (LexisNexis 2007); Uzelac, 2006 UT 46,
¶ 28. It is quite another to determine that the existence of some
combination of those factors justifies the state’s interference with
a parent’s control of her child—although the court obviously made
that determination in Uzelac.
¶17 Santosky v. Kramer, from which our supreme court drew the
clear and convincing standard, is instructive. See 455 U.S. 745(1982). At issue in that case was a New York statute permitting the
state to terminate the rights of parents in a child upon a finding
that the child was “permanently neglected.” See id. at 747. The
statute required only that “a fair preponderance of the evidence
support that finding. Thus, in New York, the factual certainty
required to extinguish the parent‐child relationship [was] no
greater than that necessary to award money damages in an
ordinary civil action.” Id. (citation and internal quotation marks
omitted). In other words, at issue in Santosky was not whether the
State of New York had a compelling interest in rescuing
permanently neglected children—the parties and the Court
apparently assumed it did—but what level of proof was required
to establish neglect. Santosky did not address the question of the
appropriate level of constitutional scrutiny.
¶18 Since Troxel, several state courts have reviewed the
constitutionality of their respective grandparent visitation statutes
without considering the level of scrutiny to apply. See Moriarty v.
Bradt, 827 A.2d 203, 218–19 (N.J. 2003) (collecting cases). Instead,
they have “simply compared the structure of their statutes to the
one invalidated in Troxel to assess constitutionality.” Id. at 219; see
20110998‐CA 9 2013 UT App 174Jones v. Jones
also, e.g., Williams v. Williams, 2002‐NMCA‐074, ¶¶ 10–29, 50 P.3d
194. Similarly, our supreme court in Uzelac addressed whether the
statute was constitutional “under Troxel.” See 2006 UT 46, ¶ 35. It
did not address the level of constitutional scrutiny applicable to the
Grandparent Visitation Statute, presumably because under any
level of scrutiny, the court would not have held the statute
unconstitutional facially or as applied to the facts of that case.
¶19 Notwithstanding Mother’s extensive appellate briefing of
the appropriate level of scrutiny, Grandparents do not squarely
address the argument. They simply respond that Uzelac settled the
constitutionality of the Grandparent Visitation Statute, and that
even if strict scrutiny applied, that standard is met here.
¶20 However, Uzelac’s declaration that the Grandparent
Visitation Statute is constitutional on its face does not dispose of
Mother’s challenge to the statute as applied to her. Furthermore,
unlike Troxel and Uzelac, this case does not fall comfortably on
either end of the constitutional spectrum. Thus, to address
Mother’s constitutional challenge, we must decide the appropriate
level of scrutiny to apply.
¶21 As Mother notes, the majority of state courts to address the
issue have held that grandparent visitation laws are subject to strict
scrutiny. See, e.g., Ex parte E.R.G., 73 So. 3d 634, 645–46 (Ala. 2011)
(plurality opinion); id. at 662 (Murdock, J., concurring specially);
Linder v. Linder, 72 S.W.3d 841, 855 (Ark. 2002); Roth v. Weston, 789
A.2d 431, 441 (Conn. 2002); Doe v. Doe, 172 P.3d 1067, 1079 (Haw.
2007); Lulay v. Lulay, 739 N.E.2d 521, 532 (Ill. 2000); Rideout v.
Riendeau, 2000 ME 198, ¶ 19, 761 A.2d 291 (plurality opinion); id.
¶¶ 47, 51 (Alexander, J., dissenting); Koshko v. Haining, 921 A.2d
171, 187–91 (Md. 2007); SooHoo v. Johnson, 731 N.W.2d 815, 821
(Minn. 2007); Moriarty, 827 A.2d at 222; In re Herbst, 1998 OK 100,
¶ 14, 971 P.2d 395; Hiller v. Fausey, 904 A.2d 875, 885–86 (Pa. 2006);
Smallwood v. Mann, 205 S.W.3d 358, 362–63 (Tenn. 2006); In re
Parentage of C.A.M.A., 109 P.3d 405, 408–09, ¶¶ 9–13 (Wash. 2005)
(en banc); see also Von Eiff v. Azicri, 720 So. 2d 510, 514 (Fla. 1998)
20110998‐CA 10 2013 UT App 174Jones v. Jones
(applying state constitution); Santi v. Santi, 633 N.W.2d 312, 318
(Iowa 2001) (same). But see, e.g., Crafton v. Gibson, 752 N.E.2d 78,
90–92 (Ind. Ct. App. 2001) (applying rational basis review because
the state’s grandparent visitation statute did not significantly
interfere with parents’ fundamental rights); Herndon v. Tuhey, 857
S.W.2d 203, 208–10 (Mo. 1993) (en banc) (same).
¶22 Our supreme court has held that under the Utah
Constitution, “the proponent of legislation infringing parental
rights must show (1) a compelling state interest in the result to be
achieved and (2) that the means adopted are narrowly tailored to
achieve the basic statutory purpose.” Wells v. Children’s Aid Soc’y of
Utah, 681 P.2d 199, 206 (Utah 1984) (citation and internal quotation
marks omitted). This holding has never been applied in the context
of grandparent visitation. It is true that in Campbell v. Campbell, in
examining a federal constitutional challenge to the predecessor of
our current Grandparent Visitation Statute, we refused to “apply
strict scrutiny to determine the statute’s constitutionality” and
instead held “the statute to be constitutional because it is rationally
related to furthering a legitimate state interest.” 896 P.2d 635, 644
(Utah Ct. App. 1995). Campbell held that rational basis review was
appropriate because the statute in effect at the time did not
“substantially infringe upon the parent’s fundamental rights or the
autonomy of the nuclear family.” Id. at 642.
¶23 But Campbell’s holding on this point was effectively
overruled by Troxel. Although Troxel did not address the standard
of review, the fundamental nature of the parental right in question
and the significant impact a grandparent visitation statute has on
a fit parent’s rights both appear as strong undercurrents running
throughout the Troxel plurality’s decision that the statute
“unconstitutionally infringe[d] on that fundamental parental
right.” See Troxel v. Granville, 530 U.S. 57, 67 (2000) (plurality
opinion); see also id. at 101 (Kennedy, J., dissenting) (“[A] domestic
relations proceeding in and of itself can constitute state
intervention that is so disruptive of the parent‐child relationship
20110998‐CA 11 2013 UT App 174Jones v. Jones
that the constitutional right of a custodial parent to make certain
basic determinations for the child’s welfare becomes implicated.”).
¶24 The Grandparent Visitation Statute qualifies as “legislation
infringing parental rights” in a substantial, not merely incidental,
way, because it allows the state to override a parent’s decision
regarding the care, custody, and control of her child. See Wells, 681
P.2d at 206; see also Washington v. Glucksberg, 521 U.S. 702, 767 n.8
(1997) (Souter, J., concurring in the judgment) (noting that “not
every law that incidentally makes it somewhat harder to exercise
a fundamental liberty must be justified by a compelling
counterinterest,” but only those laws that substantially infringe on
a fundamental liberty interest); Koshko v. Haining, 921 A.2d 171,
187–91 (Md. 2007) (holding that the state’s grandparent visitation
statute infringed on a fundamental right in a direct and substantial
way). Furthermore, as noted above, the application of strict
scrutiny is consistent with the majority of other jurisdictions to
address the issue under the federal constitution. We agree with the
reasoning of those cases and thus conclude that strict scrutiny
review applies to Mother’s claim that the statute, as applied,
violated her rights under the Utah and United States Constitutions.
B. The Statute As Applied to the Facts of This Case Does Not
Withstand Strict Scrutiny.
¶25 As noted above, a “statute that infringes upon [a parent’s]
‘fundamental’ right is subject to heightened scrutiny and is
unconstitutional unless it (1) furthers a compelling state interest
and (2) ‘the means adopted are narrowly tailored to achieve the
basic statutory purpose.’” Jensen ex rel. Jensen v. Cunningham, 2011
UT 17, ¶ 72, 250 P.3d 465 (quoting Wells, 681 P.2d at 206). The
Grandparent Visitation Statute as applied to the facts of this case
satisfies neither element of this test.
¶26 Here, Grandparents have not demonstrated that the state’s
interest in ordering visitation is compelling. The classic justification
for state intervention in the parent–child relationship is to protect
20110998‐CA 12 2013 UT App 174Jones v. Jones
“a child who is an abused child, neglected child, or dependent
child,” see Utah Code Ann. § 78A‐6‐103(3) (LexisNexis 2012). And
where the parent–child bond is to be severed altogether, the parent
“is entitled to a showing of unfitness, abandonment, or substantial
neglect before her parental rights are terminated.” In re J.P., 648
P.2d 1364, 1377 (Utah 1982).
¶27 In the context of grandparent visitation, many states hold
that a compelling state interest is established only where denial of
visitation would significantly harm the grandchild. See, e.g., Roth v.
Weston, 789 A.2d 431, 445 (Conn. 2002) (“Without having
established substantial, emotional ties to the child, a petitioning
party could never prove that serious harm would result to the child
should visitation be denied. This is as opposed to the situation in
which visitation with a third party would be in the best interests of
the child or would be very beneficial. The level of harm that would
result from denial of visitation in such a situation is not of the
magnitude that constitutionally could justify overruling a fit
parent’s visitation decision.”); Beagle v. Beagle, 678 So. 2d 1271, 1276
(Fla. 1996) (concluding, under the privacy clause of the Florida
Constitution, that the state has a compelling interest in ordering
grandparent visitation over the wishes of a fit parent only “when
it acts to prevent demonstrable harm to the child”); Brooks v.
Parkerson, 454 S.E.2d 769, 772–74 (Ga. 1995) (holding that under
state and federal constitutional law, “state interference with
parental rights to custody and control of children is permissible
only where the health or welfare of a child is threatened”); Doe v.
Doe, 172 P.3d 1067, 1079–80 (Haw. 2007) (“[P]roper recognition of
parental autonomy in child‐rearing decisions requires that the
party petitioning for visitation demonstrate that the child will
suffer significant harm in the absence of visitation before the family
court may consider what degree of visitation is in the child’s best
interests.”); In re Marriage of Howard, 661 N.W.2d 183, 191 (Iowa
2003) (“If grandparent visitation is to be compelled by the state,
there must be a showing of harm to the child beyond that derived
from the loss of the helpful, beneficial influence of grandparents.”);
Moriarty v. Bradt, 827 A.2d 203, 222 (N.J. 2003) (“Our prior
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jurisprudence establishes clearly that the only state interest
warranting the invocation of the State’s parens patriae jurisdiction
to overcome the presumption in favor of a parent’s decision and to
force grandparent visitation over the wishes of a fit parent is the
avoidance of harm to the child. . . . Although Troxel avoided
confronting that issue directly, we are satisfied that prior United
States Supreme Court decisions fully support our conclusion that
interference with parental autonomy will be tolerated only to avoid
harm to the health or welfare of a child.”); In re Herbst, 1998 OK
100, ¶ 16, 971 P.2d 395 (“[A] vague generalization about the
positive influence many grandparents have upon their
grandchildren falls far short of the necessary showing of harm
which would warrant the state’s interference with this parental
decision regarding who may see a child.”); Hawk v. Hawk, 855
S.W.2d 573, 577 (Tenn. 1993) (holding that, under the state
constitution’s right to privacy, “when no substantial harm
threatens a child’s welfare, the state lacks a sufficiently compelling
justification for the infringement on the fundamental right of
parents to raise their children as they see fit”); In re Parentage of
C.A.M.A., 109 P.3d 405, 413, ¶ 29 (Wash. 2005) (en banc)
(concluding that “the application of the ‘best interests of the child’
standard rather than a ‘harm to the child’ standard is
unconstitutional” under the Washington case that was affirmed on
narrower grounds by Troxel); see also Tracy C. Schofield, Comment,
All the Better to Eat You With, My Dear: The Need for a Heightened
Harm Standard in Utah’s Grandparent Visitation Statute, 2006 BYU L.
Rev. 1669, 1734 (advocating an amendment to the Utah
Grandparent Visitation Statute to require grandparents to show
“that a parent is unfit and that his or her visitation decision will
substantially harm the children”). But see, e.g., Rideout v. Riendeau,
2000 ME 198, ¶ 23, 761 A.2d 291 (“An element of ‘harm’ in the
traditional sense is not, however, the only compelling state interest
extant when matters relating to the welfare of children are under
scrutiny.”); Hiller v. Fausey, 904 A.2d 875, 886–90 (Pa. 2006)
(concluding that a harm requirement “would set the bar too high,”
but that the state has a compelling interest in “protecting the health
and emotional welfare of children” and that the state’s statute was
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narrowly tailored because it extended visitation rights only to
grandparents whose child had died, afforded special weight to a
parent’s decision regarding visitation, required the court to
consider the strength of the grandparent–grandchild relationship,
and required findings that visitation would not interfere with the
parent–child relationship and that visitation would serve the best
interests of the grandchild).
¶28 On the other hand, some states appear to interpret Troxel as
requiring the conclusion that a showing of harm is unnecessary.
See, e.g., In re Adoption of C.A., 137 P.3d 318, 325–26 (Colo. 2006) (en
banc). However, this interpretation does not square with Troxel and
is inconsistent with our supreme court’s reading of Troxel. Rather
than ruling that a showing of harm is not required, “the plurality
[in Troxel] specifically refused to determine whether the Due
Process Clause requires a showing of harm or potential harm to the
child as a condition precedent to granting visitation.” Uzelac v.
Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 24, 144 P.3d 1083(citing Troxel v. Granville, 530 U.S. 57, 73 (2000) (plurality opinion)).
Indeed, other courts have found that a statutory scheme can meet
the requirements of Troxel but nonetheless fail a strict scrutiny
analysis absent a showing of harm. See, e.g., Doe, 172 P.3d at 1077,
1080.
¶29 Our Grandparent Visitation Statute does not require a
showing of harm to the grandchild. Rather, harm to the grandchild
caused by termination of a substantial relationship with the
grandparent is listed as one of seven factors the court may
“consider[] to be relevant” in determining whether the grandparent
has rebutted the presumption that “a parent’s decision with regard
to grandparent visitation is in the grandchild’s best interest”:
(d) the petitioner has acted as the grandchild’s
custodian or caregiver, or otherwise has had a
substantial relationship with the grandchild, and the
loss or cessation of that relationship is likely to cause harm
to the grandchild . . . .
20110998‐CA 15 2013 UT App 174Jones v. Jones
Utah Code Ann. § 30‐5‐2(2)(d) (LexisNexis 2007) (emphasis added).
Moreover, as our supreme court observed in Uzelac, the statute
“does not provide a district court with much guidance regarding
how the factors ought to be weighed or applied.” 2006 UT 46, ¶ 36
n.7.
¶30 Here, Mother contends that although the trial court ruled
that denial of visitation “has likely” harmed Child, the court “made
no fact findings in support of that conclusion, for the record was
barren of any such evidence.” Indeed, the grandparent visitation
evaluation contains no reference to harm suffered by Child.
Although the evaluator did testify that Child might someday
benefit from knowing her paternal grandparents in order to grieve
her father’s death and deal with inevitable questions about her
past, this prediction is speculative and in any event merely states
the rationale for statutory factor (e), the death of a parent. See Utah
Code Ann. § 30‐5‐2(2)(e).
¶31 In response, Grandparents assert that they had acted as
Child’s custodian or caregiver and enjoyed a substantial
relationship with Child. And although they assert that “harm has
and will result if visitation is denied,” they point to no record
evidence supporting that assertion. The expert testimony they cite
suggests only that harm would likely result in this type of
situation. The evaluator stated that she lacked sufficient
information to determine whether harm had actually resulted to
Child. Furthermore, the record evidence describes a healthy and
normal grandparent–grandchild relationship, but not an
exceptionally close one.3 For example, the court found that in the
meeting the evaluator hosted between Grandparents and Child,
Child “exhibited no distress” and—tellingly—“recognized them.”
3
The strength of the relationship was affected, no doubt,
by Mother’s restriction of Grandparents’ contact with Child prior
to the Grandparent Time Evaluation.
20110998‐CA 16 2013 UT App 174Jones v. Jones
¶32 Grandparents maintain that harm may be inferred from the
fact that Mother abruptly ended visitation two years before trial,
and the trial court’s findings to this effect are uncontested. But the
only harm identified by Grandparents or by the trial court is loss
of the grandparent–grandchild relationship itself—a circumstance
inherent in every case likely to be brought under the statute—and
even at that, the testimony of harm to Child is speculative. In sum,
the evidence that Grandparents had a substantial relationship with
Child and that Child would be harmed by denied visitation was
not compelling.
¶33 Other statutory factors are either unchallenged here or
supported by clear and convincing evidence: Father died,
Grandparents and Mother are fit, Mother unreasonably limited
Grandparents’ visitation, and visitation is in Child’s best interest.4
Consequently, the only factor distinguishing this case from any
other parent–grandparent visitation litigation between fit parties is
the fact that Father is deceased. Indeed, the present record does not
even demonstrate Child’s “understandable sadness resulting from
losing a family member and . . . missing [her] grandparents” found
insufficient in In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010)
(applying a statute that was amended after Troxel to require
grandparents to rebut the parental presumption “by proving that
denial . . . of access to the child would significantly impair the
child’s physical health or emotional well‐being” (citation and
internal quotation marks omitted)). No one in this case has claimed
that, without more, Father’s death justifies compelled visitation
under any standard, much less the compelling state interest
standard. We therefore conclude that the facts of this case are not
“sufficient . . . to justify state interference.” See Uzelac v. Thurgood
(In re Estate of S.T.T.), 2006 UT 46, ¶ 38, 144 P.3d 1083.
4
We understand the statutory term “unreasonably
limited” to mean that the limitation on visitation seems
disproportional to the reasons offered for it. See Utah Code Ann.
§ 30‐5‐2(2)(b) (LexisNexis 2007).
20110998‐CA 17 2013 UT App 174Jones v. Jones
¶34 Even if Grandparents had demonstrated that the state’s
interest in requiring visitation here was compelling, they have not
shown that the visitation ordered in this case was narrowly tailored
to achieve that interest. Where a statute infringes on a fundamental
right, the means adopted must be “narrowly tailored to achieve the
basic statutory purpose.” Jensen ex rel. Jensen v. Cunningham, 2011
UT 17, ¶ 72, 250 P.3d 465 (citation and internal quotation marks
omitted).
¶35 As of June 2012, Grandparents are entitled under the trial
court’s order to visitation on alternating weekends, one of which
is an overnight visit. This level of visitation is well below the
minimum statutory schedule for a parent. See Utah Code Ann. § 30‐
3‐35 (LexisNexis Supp. 2012); id. § 30‐3‐35.5(3)(f). But it is more
substantial than the visitation many grandparents enjoy, especially
those who, like Grandparents here, live in a different city from
their grandchild.
CONCLUSION
¶36 In sum, we conclude that the Grandparent Visitation Statute
is unconstitutional under the Utah and United States Constitutions
as applied to Mother in this case. We need not reach any other
claims presented in this appeal. The judgment of the trial court is
accordingly reversed.
DAVIS, Judge (dissenting):
¶37 I respectfully dissent from the majority opinion because I
believe it is inconsistent with our supreme court’s holding in Uzelac
v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, 144 P.3d 1083.
Accordingly, I would consider Mother’s other arguments on appeal
and ultimately affirm the trial court’s award of grandparent
visitation.
20110998‐CA 18 2013 UT App 174Jones v. Jones
I. Constitutionality of the Grandparent Visitation Statute
¶38 The Uzelac court explained that the Grandparent Visitation
Statute is constitutional as applied where “the grandparents . . .
have clearly and convincingly rebutted the [parental] presumption
. . . [,] the district court . . . [has] found that grandparent visitation
[is] in the child’s best interests,” and the trial court’s
“determination [is] accompanied by sufficient findings of fact to
justify state interference.” Id. ¶ 38. Although the Uzelac court never
explicitly discussed the appropriate level of scrutiny to apply in
grandparent visitation cases, it is clear from the parties’ briefs in
that case that the scrutiny issue was raised and that the supreme
court would have been cognizant of it. Brief for Appellee at 26–27,
Uzelac, 2006 UT 46 (No. 20040796); Reply Brief for Appellant at
5–13, Uzelac, 2006 UT 46 (No. 20040796). Thus, it appears that, like
the Supreme Court in Troxel, our supreme court consciously
declined to explicitly identify the appropriate level of scrutiny. See
Troxel v. Granville, 530 U.S. 57, 80 (2000) (Thomas, J., concurring in
the judgment).
¶39 The Uzelac court did examine the Grandparent Visitation
Statute in detail and gave extensive instructions regarding how it
should be constitutionally applied. For example, the court explicitly
limited the applicability of two particular factors—grandparent
fitness and best interests—because of their tendency to “allow[] a
judge to supercede a parent’s decisions based solely on a
disagreement between the parent and the judge.” Uzelac, 2006 UT
46, ¶ 33. The court further clarified that in order to withstand
constitutional scrutiny, the parental presumption must be rebutted
by clear and convincing evidence. Id. However, the court went on
to explain that the statute provides “several means by which a
grandparent can rebut the parental presumption” and explained
that the Grandparent Visitation Statute withstood constitutional
scrutiny by “ensuring that courts give ‘special weight’ to the
decisions of fit parents.” Id. ¶¶ 34–35. Although the Uzelac court
suggested that “the presumption is most clearly rebutted when the
court finds the existence of several relevant factors,” it did not
20110998‐CA 19 2013 UT App 174Jones v. Jones
identify any particular number of factors that must be established
and made no suggestion that harm or parental fitness should be
elevated over any of the other factors.5 Id. ¶ 34; see also id. ¶ 24(pointing out that Troxel’s “plurality decision does not impose the
requirement that the parental presumption be rebutted by a
showing of harm to the child” and “specifically refused to
determine whether the Due Process Clause requires a showing of
harm or potential harm to the child as a condition precedent to
granting visitation” (citing Troxel, 530 U.S. at 73 (plurality
opinion))).
¶40 Thus, even if we assume our supreme court did not, in
effect, apply strict scrutiny, I do not believe we should employ a
higher level of scrutiny than that employed by our supreme court
or read additional constitutional requirements into a statute that
our supreme court has thoroughly analyzed.6 Thus, I would
5
A harm requirement would make it nearly impossible for
grandparents of very young grandchildren with fit parents to
obtain an award of grandparent visitation. While the legislature
might very well deem it appropriate to impose such a limitation,
I do not think due process mandates that the state’s interest in
preserving a child’s relationship with both sides of her family
where the family unit has been divided be limited to
circumstances where the child is old enough to have suffered
severe emotional harm at the severing of that relationship.
6
While the Uzelac court did not explicitly employ strict
scrutiny in its analysis, it certainly appears to have employed
something greater than rational basis scrutiny in its evaluation of
the Grandparent Visitation Statute. The majority observes that a
number of other courts have concluded “that a compelling state
interest is established only where denial of visitation would
significantly harm the grandchild.” See supra ¶ 27. However, the
Uzelac court’s analysis strongly suggests that another state
interest may justify an award of grandparent visitation, i.e.,
(continued...)
20110998‐CA 20 2013 UT App 174Jones v. Jones
conclude that by determining that Grandparents had clearly and
convincingly rebutted the parental presumption by means of a
sufficient combination of the statutory factors, the trial court
applied the Grandparent Visitation Statute in a manner that
adequately protected Mother’s constitutional parental rights.
Accordingly, I would address Mother’s other arguments on appeal.
II. Factual Findings
¶41 Mother first challenges several of the trial court’s factual
findings. A trial court’s findings of fact are reviewed for clear error.
Houskeeper v. State, 2008 UT 78, ¶ 18, 197 P.3d 636. Specifically,
Mother maintains that there was insufficient evidence to support
the court’s findings that Mother “believed the visits [with
Grandparents] went well” during the two and a half months
following Father’s death; that Mother “denied any unsupervised
visitation and contact” after July 24, 2009; that Mother “testified
6
(...continued)
preserving the child’s right to a relationship with both sides of
her family where that “family has been divided by some turn of
fate—death, divorce, loss of custody, a missing person, or a
declaration that a parent is unfit or incompetent.” Uzelac v.
Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 30, 144 P.3d 1083;
see also discussion infra ¶ 53. The court took no issue with the
legislature’s identification of such circumstances as factors
tending to rebut the parental presumption and took pains to
explain why that category of factors furthered a state interest. See
Uzelac, 2006 UT 46, ¶ 30. I do not know whether the supreme
court intended by this discussion to suggest that preserving a
child’s bonds with both sides of her family is a compelling state
interest or whether it reached this conclusion by employing an
intermediate level of scrutiny rather than strict scrutiny.
However, it appears to me that the supreme court’s discussion
approved this state interest as constitutionally sufficient to
justify an award of grandparent visitation, under appropriate
circumstances, even in the absence of significant harm.
20110998‐CA 21 2013 UT App 174Jones v. Jones
that she denied visitation only after [Grandparents] wanted too
much”; and that “[f]inancial matters and [Child’s maternal
grandmother’s] involvement may have contributed to the cessation
of contact between [Grandparents] and [Child].” I do not agree
with Mother that these findings were unsupported by the evidence.
¶42 Mother asserts that because her relationship with
Grandparents was not ideal during the two and a half months
immediately following Father’s death, the trial court erred in
finding that Mother believed the visits with Grandparents went
well during that period. However, read in context, that finding
appears to relate primarily to Mother’s feelings about the visits
themselves, i.e., Grandparents’ ability to care for Child and Child’s
relationship with Grandparents, rather than Mother’s personal
feelings toward Grandparents. Her feelings about the visits were
related in email communications between Mother and
Grandparents during the relevant time period. Although Mother
expressed concern about allowing Child to stay overnight with
Grandparents, she assured them that this was based on the fact that
Child had struggled with her bedtime routine rather than a desire
to keep Child from Grandparents. Mother expressed her opinion
that Child should not “have overnight visits with others until she
is at about 3 years old” and suggested that she might reconsider the
possibility of overnights in the future. Mother told Grandparents
that she was “not trying to keep [Child] from [them] in any way”
and that she knew Grandparents loved Child. Though Mother may
have expressed concerns about visitation later in the course of
litigation, the evidence was sufficient to support the trial court’s
finding that during the period when visitation was occurring,
Mother believed the visits went well.
¶43 Although Mother concedes that “the district court could
have inferred that [Mother] did not grant [Grandparents’] requests
for visits in August and no visits took place after July 2009 . . . ;
[Child] did not have weekday telephone calls with [Grandparents]
after July 2009 . . . ; and [Mother] requested supervised visitation
in September 2009,” she takes issue with its finding that she
20110998‐CA 22 2013 UT App 174Jones v. Jones
“denied any unsupervised visitation and contact” after July 2009.
While it does appear that at least some weekend phone calls may
have taken place after July 2009 and that the lack of visits in August
may have been related to scheduling concerns rather than a blanket
restriction by Mother (though in September Mother admittedly
requested that visits be supervised), I see Mother’s objection to this
finding as overly punctilious. I see no practical difference between
the succinct finding made by the trial court and the more detailed
facts identified by Mother; the gist of the facts, no matter how they
are related, is that Mother severely restricted Grandparents’
visitation with Child beginning soon after July 2009.
¶44 Mother objects to the trial court’s finding that she “denied
visitation only after [Grandparents] wanted too much” because she
maintains that there were other reasons for her decision to restrict
Grandparents’ visitation. While Mother’s email to Grandparents
does suggest that there were a number of factors impacting her
decision to restrict visitation, it is clear that one of those reasons
was Grandparents’ request for extensive visitation. It also appears
that the email was written directly in response to Grandparents’
August 27 email requesting additional time. Furthermore, the
evaluator suggested that Grandparents’ demands for more time
were “linked to [Mother’s] decision to cut [off] contact.” While the
trial court’s finding may have oversimplified Mother’s reasons, it
was not clearly erroneous and is supported by the evidence.
¶45 Finally, Mother objects to the trial court’s finding that
Mother may have restricted contact due to financial matters and
Child’s maternal grandmother’s involvement. The evidence shows
that the maternal grandmother urged Mother to deny overnight
visits to Grandparents and that Grandparents and Mother had at
least a minor confrontation over an ambulance bill for Father that
the maternal grandmother taped to Grandparents’ front door. The
evaluator also opined that financial issues increased friction
between the parties and appeared to have contributed to Mother’s
decision to restrict contact. Again, while these may not have been
the only reasons for Mother’s restricting contact, and may even
20110998‐CA 23 2013 UT App 174Jones v. Jones
have been minor factors, the finding that they “may have
contributed to the cessation of contact” is not clearly erroneous.
III. Application of Grandparent Visitation Statute
¶46 Mother next asserts that the trial court erred in determining
that Grandparents had rebutted the parental presumption. See Utah
Code Ann. § 30‐5‐2(2) (LexisNexis 2007). This is a mixed question
of law and fact. See generally State v. Pena, 869 P.2d 932, 936 (Utah
1994) (explaining that a mixed question involves “the application
of law to fact or, stated more fully the determination of whether a
given set of facts comes within the reach of a given rule of law”).
Thus, the “trial court’s factual findings are reviewed deferentially
under the clearly erroneous standard, and its conclusions of law
are reviewed for correctness with some discretion given to the
application of the legal standards to the underlying factual
findings.” State v. Brake, 2004 UT 95, ¶ 12, 103 P.3d 699 (citations
and internal quotation marks omitted).
¶47 As our supreme court noted in Uzelac v. Thurgood (In re
Estate of S.T.T.), 2006 UT 46, 144 P.3d 1083, the structure of the
Grandparent Visitation Statute is “confusing” and “provides very
little guidance to a district judge trying to resolve a grandparent
visitation dispute.” Id. ¶ 36. The statute provides,
There is a rebuttable presumption that a parent’s
decision with regard to grandparent visitation is in
the grandchild’s best interests. However, the court
may override the parent’s decision and grant the
petitioner reasonable rights of visitation if the court
finds that the petitioner has rebutted the
presumption based upon factors which the court
considers to be relevant, such as whether:
(a) the petitioner is a fit and proper person to
have visitation with the grandchild;
(b) visitation with the grandchild has been
denied or unreasonably limited;
20110998‐CA 24 2013 UT App 174Jones v. Jones
(c) the parent is unfit or incompetent;
(d) the petitioner has acted as the grandchild’s
custodian or caregiver, or otherwise has had a
substantial relationship with the grandchild, and the
loss or cessation of that relationship is likely to cause
harm to the grandchild;
(e) the petitioner’s child, who is a parent of the
grandchild, has died, or has become a noncustodial
parent through divorce or legal separation;
(f) the petitioner’s child, who is a parent of the
grandchild, has been missing for an extended period
of time; or
(g) visitation is in the best interest of the
grandchild.
Utah Code Ann. § 30‐5‐2(2). Because a parent’s decisions regarding
grandparent visitation are presumed to be in the child’s best
interests and a parent’s right to make such decisions is a protected
liberty interest, grandparents seeking court‐ordered visitation must
rebut the parental presumption by clear and convincing evidence.
Uzelac, 2006 UT 46, ¶ 28.
¶48 Mother’s analytical approach seems to assume that all of the
statutory factors are to be employed as a sort of balancing test, with
all the factors being weighed against all the others. Accordingly,
her argument relies on factors that do not serve to rebut the
parental presumption in this case, such as the fact that she is a fit
parent. However, applying the factors in the Grandparent
Visitation Statute as a balancing test would be inappropriate
because the presumption does not need to be bolstered by the
factors in order to remain intact—it persists unless and until
Grandparents satisfy their burden to establish that a sufficient
combination of the factors, supported by clear and convincing
evidence, rebut the parental presumption. If the presumption has
been rebutted by clear and convincing evidence, Mother can
reestablish it only by undermining the evidence supporting the
20110998‐CA 25 2013 UT App 174Jones v. Jones
factors that rebut the presumption, not by alleging the nonexistence
of other factors that Grandparents never relied on.
¶49 In an attempt to clarify the Grandparent Visitation Statute
and its application, the Uzelac court recognized that the statute
actually identifies three separate categories of factors. Id. ¶ 29. The
first category, which includes factors (c), (e), and (f), relates to
special circumstances “where a family has been divided by some
turn of fate—death, divorce, loss of custody, a missing person, or
a declaration that a parent is unfit or incompetent.” Id. ¶ 30. The
second category, which includes factors (b) and (d), “encompasses
situations where the state has an interest in protecting the child
from harm.” Id. ¶ 31. The third category, which includes factors (a)
and (g), identifies threshold findings that must be made “even if
the petitioner has satisfied other statutory factors.” Id. ¶ 32. While
findings relating to these threshold factors are necessary to an
award of custody, they are not sufficient to justify such an award
because that “would come too close to allowing a judge to
supercede a parent’s decisions based solely on a disagreement
between the parent and the judge.” Id. ¶ 33. As to the other factors,
the court observed that “the presumption is most clearly rebutted
when the court finds the existence of several relevant factors” but
that the Grandparent Visitation Statute identifies “several means”
by which this may be accomplished. Id. ¶ 34.
¶50 The supreme court’s analysis makes clear that the various
factors may be of different weight and may not all apply in the
same way. See id. ¶ 36 n.7. Some factors must be established as a
threshold in every case in order to satisfy due process, see id.
¶¶ 32–33, 36 n.7, and other factors may not be relevant at all under
a given set of circumstances.7 The trial court may even consider
additional factors not listed in the Grandparent Visitation Statute.
7
In fact, some may be mutually exclusive. For example,
the parent who is a child of a grandparent is unlikely to be both
dead and missing, though those factors are listed separately. See
Utah Code Ann. § 30‐5‐2(2)(e)–(f) (LexisNexis 2007).
20110998‐CA 26 2013 UT App 174Jones v. Jones
See Utah Code Ann. § 30‐5‐2(2) (providing that the trial court may
find the parental presumption rebutted “based upon factors which
the court considers to be relevant” and then identifying the
specifically enumerated statutory factors as examples of factors
that might be relevant). Accordingly, there is no magic number of
factors necessary to rebut the parental presumption; rather, the
determination of whether the parental presumption has been
rebutted is highly fact dependent and must take into account the
particular facts and circumstances of the case as a whole. With
these parameters in mind, I proceed to discuss the trial court’s
determination that the facts in this case justified an award of
visitation to Grandparents under the Grandparent Visitation
Statute.
¶51 Mother’s argument focuses largely on her assertion that
Child does not have a substantial relationship with Grandparents
and that Child has not been harmed by being out of contact with
them. Mother asserts that a substantial relationship arises only
where the grandparents have a relationship with the child akin to
that of a “custodian or caregiver,” see Utah Code Ann. § 30‐5‐
2(2)(d) (LexisNexis 2007), and that Grandparents’ relationship with
Child does not satisfy that standard. She further points out that
neither the evaluator nor the trial court made any specific findings
relating to whether Child had been harmed by Mother’s decision
to deny Grandparents visitation. These points are well taken. The
only Utah case to consider the substantial relationship factor did so
with respect to grandparents who had lived with the child and
taken care of her “on a daily basis throughout most of the child’s
first four years of life.” Uzelac, 2006 UT 46, ¶ 42. The relationship
between Grandparents and Child clearly does not reach that level.8
8
This is not to say that a grandparent must necessarily
have assumed the role of a parent in order to establish a
substantial relationship under the Grandparent Visitation
Statute. But because I do not think it was essential for
(continued...)
20110998‐CA 27 2013 UT App 174Jones v. Jones
Furthermore, although the trial court concluded that “the denial [of
visitation] has likely caused harm to [Child],” it made no findings
in support of that conclusion, and there appears to be little support
for it in the record.
¶52 I would not analyze these factors in depth, however, because
in light of the parameters outlined above, I am not convinced that
Grandparents must demonstrate such an involved relationship or
harm resulting from severance of the relationship in order for the
trial court to consider an award of visitation where the combination
of other compelling factors is sufficient to rebut the parental
presumption. Specifically, in this case, the trial court found that
Father had died, that Mother unreasonably restricted
Grandparents’ visitation, that Grandparents are fit to care for
Child, and that visitation is in Child’s best interests. These findings
are supported by clear and convincing evidence and are sufficient
to rebut the parental presumption.
¶53 Although the fact of Father’s death alone would not justify
a court award of grandparent visitation where the living parent
continued to permit reasonable visitation between the child and the
grandparents, I consider this factor very relevant in circumstances,
such as those presented in this case, where the parent has “denied
or unreasonably limited” visitation. See Utah Code Ann. § 30‐5‐
2(2)(b).
The [Grandparent Visitation S]tatute recognizes that
when a family unit has been touched by . . . events
8
(...continued)
Grandparents to establish this factor in order to rebut the
parental presumption, see infra ¶ 52, I will not delve into the
question of what constitutes a substantial relationship. It is clear,
however, that the relationship between Child and Grandparents
was not as substantial as the relationship between the
grandparents and grandchild in Uzelac.
20110998‐CA 28 2013 UT App 174Jones v. Jones
[dividing it,] a situation may arise where the child’s
interests differ from those of the parent. This is
particularly true where the direct family line between
grandparents and grandchildren has been severed,
leaving the “in‐law” relationship as the only
remaining adult connection. Recognizing the
potential for conflict in the relationship between the
parent and the “in‐law” and the resulting potential
for interference with the grandparent–grandchild
relationship, the statute provides an avenue for
grandparents and grandchildren to maintain their
relationship.
Uzelac v. Thurgood (In re Estate of S.T.T.), 2006 UT 46, ¶ 30, 144 P.3d
1083 (citation omitted).
¶54 The concerns identified by the supreme court proved
justified in this case when, following a number of disputes between
Mother and Grandparents, Mother informed Grandparents that she
intended to limit them to only one phone call with Child per month
and one supervised visit “for a few hours” every other month.
Although Mother maintains that these restrictions were reasonable
under the circumstances, the trial court found—and the evidence
supports, see supra ¶ 44—that they were primarily the result of
Grandparents wanting what Mother perceived to be too much
visitation,9 and possibly related to “[f]inancial matters and [Child’s
9
The record does suggest that Grandparents demanded
extensive visitation comparable to that afforded to non‐custodial
parents, see generally Utah Code Ann. § 30‐3‐35 (LexisNexis
Supp. 2012), and that they threatened to sue for court‐ordered
visitation if Mother did not honor their demands. However, like
the trial court, I fail to see “the nexus between a request for more
contact and cutting off all but supervised visitation when that
didn’t exist before.” The parental presumption relates to whether
(continued...)
20110998‐CA 29 2013 UT App 174Jones v. Jones
maternal grandmother’s] involvement.” Furthermore, both the
evaluator and the trial court considered Mother’s other claimed
concerns to have arisen only after the breakdown of the parties’
relationship, and observed that she seemed to have previously
been untroubled by Grandparents’ ability to care for Child. In
short, the evidence clearly and convincingly shows that Mother’s
decision to restrict Grandparents’ visitation was based primarily on
factors other than Child’s best interests and was therefore
unreasonable.
¶55 The evidence also supports the trial court’s determinations
that Grandparents were fit and that visitation was in Child’s best
interests. The trial court found that Grandparents had cared for
Child on many occasions prior to the time their visitation was
restricted and that Mother permitted them to spend time with
Child because she knew they loved Child. The evaluator stated that
Mother had relied on Grandparents for child care in the past and
opined that Grandparents “appeared to love [Child] very much
and would not harm her.” She also testified that Grandparents “are
fit and proper to have grandparent time.” Witnesses at trial also
testified as to Grandparents’ fitness and stability. As to best
interests, the evaluator opined,
The more time this child spends with her
grandparents and her paternal relatives, the better off
she will be in terms of knowing and understanding
that many people love her. She will be more self
confident and well rounded having full access to
9
(...continued)
a parent’s decisions regarding grandparent visitation are in the
best interests of the child. Although Mother may have
understandably felt pressured by Grandparents, I fail to see how
their request for more time or even their threats to seek a court
order leads to the conclusion that supervision and reduced
contact was in Child’s best interests.
20110998‐CA 30 2013 UT App 174Jones v. Jones
both sides of [her] family as well as her stepfather’s
family.
Thus, the threshold fitness and best interests factors were also
established by clear and convincing evidence. Accordingly, the trial
court did not err by determining that the parental presumption was
rebutted or by awarding visitation to Grandparents.10
IV. Other Constitutional Issues
¶56 Finally, Mother asserts that the trial court’s award of
approximately thirty‐six hours of grandparent visitation per month
violated her constitutional rights because it was not narrowly
tailored. The Grandparent Visitation Statute instructs that the court
may order “reasonable rights of visitation if the court finds that the
petitioner has rebutted the [parental] presumption.” Utah Code
Ann. § 30‐5‐2(2) (LexisNexis 2007). Although trial courts might
benefit from legislative guidance on what constitutes “reasonable
rights of visitation” for a grandparent, I fail to see how an award of
reasonable visitation is not narrowly tailored to the state’s interest
in preserving the grandparent–grandchild relationship under
circumstances such as those presented in this case. See generally
Uzelac, 2006 UT 46, ¶ 30. And Mother has failed to explain why the
trial court’s award of visitation was unreasonable, other than to
assert that “a far more limited order—or none at all—would have
sufficed.” Because I would consider an award of reasonable
visitation to be narrowly tailored to advance the state’s interest,
and because Mother has not adequately contested the
10
I do acknowledge that this is a very close case.
Nevertheless, as the trial court’s factual findings are entitled to
deference and those findings are sufficient to rebut the parental
presumption, I would not think it appropriate for us to
substitute our judgment for that of the trial court by disturbing
its visitation award.
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reasonableness of the trial court’s visitation award, I would reject
Mother’s argument.
¶57 Finally, Mother challenges the standing provisions of the
Grandparent Visitation Statute. She asserts that a statute
“authorizing all grandparents to sue at any time” is not narrowly
tailored and permits “[f]it parents . . . [to] be hauled into court to
defend suits for temporary custody absent pleading and a
preliminary showing of compelling circumstances that would tend
to override the presumption that the parent’s visitation decision is
entirely appropriate.” Even accepting Mother’s assertions as true,
I do not read the Grandparent Visitation Statute so broadly. The
statute provides, “Grandparents have standing to bring an action
in district court by petition, requesting visitation in accordance
with the provisions and requirements of this section.” Utah Code
Ann. § 30‐5‐2(1). Because the Grandparent Visitation Statute goes
on to outline the limited circumstances under which grandparent
visitation may be considered, see id. § 30‐5‐2(2), permitting a
grandparent to bring an action “in accordance with the provisions
and requirements of this section” does require the grandparent to
plead circumstances that might override the parental presumption,
see id. § 30‐5‐2(1). Thus, contrary to Mother’s assertion, the
Grandparent Visitation Statute does not broadly grant standing to
all grandparents and is sufficiently narrowly tailored to protect
parents from unwarranted infringement on their constitutional
rights.
V. Conclusion
¶58 Ultimately, I disagree with the majority regarding the
constitutionality of the Grandparent Visitation Statute as applied
in this case in light of our supreme court’s holding in Uzelac.
Accordingly, I would examine the merits of Mother’s other
arguments. Having done so, I would conclude that the trial court’s
factual findings were not clearly erroneous. I would also determine
that Grandparents rebutted the parental presumption by clear and
20110998‐CA 32 2013 UT App 174Jones v. Jones
convincing evidence and that the trial court did not err by
awarding grandparent visitation under the facts and circumstances
of this case. Finally, I would conclude that the trial court did not
violate Mother’s constitutional rights by awarding Grandparents
reasonable visitation and that the Grandparent Visitation Statute’s
standing provision is not overly broad. Accordingly, I would affirm
the trial court’s visitation award.
20110998‐CA 33 2013 UT App 174