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GLIDDEN v. CONLEY, 2000-491, (
Morris R. Glidden v. Nyoakla Lynn Conley
No. 2000-491, October Term, 2001
Supreme Court of
On Appeal from
Margot L. Stone and
Amy Phillippo, Newfane, for Plaintiff-Appellant.
Lois Mech, Pro se,
Putney, Defendant-Appellee.
William H. Sorrell,
Attorney General,
Assistant Attorney General,
PRESENT: Amestoy,
C.J., Dooley, Morse, Johnson and Skoglund, JJ.
SKOGLUND, J.
¶ 1. Appellant
Morris Glidden appeals from a Windham Family Court
order denying his motion to reconsider the court's award of
visitation
rights to Lois Mech, the maternal grandmother of Glidden's
biological
daughter, Amanda. Glidden, whose parental fitness is
unquestioned, argues
that the court's order deprives him of his constitutionally-protected
right to decide whether, and on what terms, his daughter
should have
contact with her grandmother. We agree, and hold that the
court
unconstitutionally applied the statute governing
grandparent> <visitation>.
We therefore reverse the visitation order.
¶ 2. Morris Glidden
and Nyoakla Conley are the biological parents
of Amanda May Conley, born on
mother and Amanda's maternal grandmother. Glidden and Conley
were never
married and never cohabitated. Glidden did not learn of his
paternity until
a 1995 probate proceeding through which Conley, who has a
history of
substance abuse and criminal conduct, was agreeing to
relinquish her
parental rights and place Amanda with adoptive parents. Upon
discovering
his paternity, Glidden sought to end the probate proceeding
and establish a
visitation schedule with Amanda by commencing a parentage
proceeding in
family court. He also began contributing financial support
for his
daughter. At the time, Glidden did not have an appropriate
home for Amanda
so Glidden, Conley, and Mech agreed that Mech would become
Amanda's legal
and physical guardian. The family court, which granted a
motion to
transfer the probate proceeding to the family court and
consolidate it with
the parentage action, approved the agreement. Thus, in
January 1996, the
court established a visitation schedule with Amanda for
Glidden and Conley.
Glidden eventually married, and he continued regular visits
with Amanda
until her behavioral problems became disruptive for him and
all concerned.
Glidden voluntarily suspended his visits with Amanda and
urged Mech to
obtain counseling for her, while he continued to contribute
financial
support for Amanda.
¶ 3. Less than two
years later, Glidden attempted to renew
visitation with his daughter. His efforts were rebuffed and
resulted in
frequent disagreements between him, Mech, and Conley. In
April 1998, Mech
moved to modify the January 1996 order to allow only
supervised visits
between Glidden and Amanda. The next month, Glidden moved to
enforce the
January 1996 order. Following the hearing on the motions,
the court
established a new temporary visitation schedule for Glidden
and ordered a
study of the Glidden and Mech households.
¶ 4. The home study
was filed on September 15, 1998.[fn1] Along
with the home study, Glidden filed a petition to dismiss
Mech as Amanda's
guardian and to obtain custody of his daughter. The court
thereafter
entered another temporary order on visitation between
Glidden and Amanda
based on another agreement between the parties.
¶ 5. In August 1999,
Glidden, Conley, and Mech entered into yet
another agreement on custody and visitation. Under the
agreement, which
the court approved on August 31, 1999, Mech resigned
guardianship of
Amanda, and Glidden and Conley shared physical and legal
custody of her,
although Glidden became Amanda's primary physical custodian.
The parties
also agreed that if either parent was cited by law
enforcement for any
criminal offense involving drugs or alcohol, the
non-offending parent would
immediately be entitled to sole custody of Amanda. Conley
was unable to
maintain her sobriety and was charged in district court for
disorderly
conduct. Accordingly, pursuant to the parties' agreement,
and by order of
the family court, Glidden became sole legal and physical
custodian of
Amanda on May 15, 2000. Conley was still allowed visitation
with Amanda
one day per weekend, followed by full weekends upon
satisfactory completion
of a drug and alcohol rehabilitation program.
¶ 6. Mech was seeing
Amanda once a week for three hours at a time
during Amanda's visits with Conley when in July 2000, she
filed a request
for visitation pursuant to Vermont's <grandparent>
<visitation> statute,
15 V.S.A. § 1011(a). Her petition did not contain any
allegations that
Glidden had unreasonably denied her contact with Amanda.
Instead, she
expressed "fear" that he would prohibit her from
seeing the child without a
court-ordered visitation schedule. After a hearing, the
court, on August
4, 2000, granted temporary visitation every other Saturday
from 10:00 a.m.
until 4:00 p.m. at Mech's home. Additionally, the court
ordered Glidden to
allow Mech to transport Amanda for a four-hour visit with
Conley each
Sunday at the Massachusetts long-term residential
rehabilitation center
where Conley resided and was receiving treatment.
¶ 7. On August 18,
2000, Glidden moved to reconsider the visitation
award arguing that the court's failure to consider the
decision of a fit
parent violated his Fourteenth Amendment right to raise his
child without
undue interference by the state, relying on the United
States Supreme Court
decision in Troxel v. Granville, 530 U.S. 57 (2000).
¶ 8. Further,
Glidden had discovered that a family friend living
in Mech's household, to whom Amanda refers as "Uncle
David," is a convicted
sex offender. "Uncle David's" conviction stemmed
from a sex offense
against Conley when she was a minor, but he nevertheless has
lived as a
family member in the Mech household since 1980. Although
Glidden was
supportive of visitation between his daughter and Mech
because of the
child's relationship with her, he was concerned about a sex
offender's
presence with Amanda during their visits. He also claimed
Mech had misled
him about the identity of Conley's abuser.
¶ 9. The court
affirmed the order following a hearing where it
took evidence on whether it "should substitute its
judgment on <grandparent>
<visitation> for that of Mr. Glidden." The court
found that Mech gave
Glidden false information about the sex offender, that there
had been
questionable incidents between the offender and Amanda, and
that Glidden's
concern about the presence of the offender in Mech's home
was valid. The
court also found it likely that conflict between Glidden and
Mech over
visitation would continue without a court order structuring
the visits
between Amanda and her grandmother. It stated that Glidden's
concern about
the sex offender was "likely to have the effect of
causing him to be overly
concerned and restrict[ive of] the amount of contact between
Amanda and Ms.
Mech that even he believes is otherwise good for
Amanda." The court
therefore denied Glidden's motion, but modified the order to
prohibit Mech
from allowing the sex offender to be in Amanda's presence
during their
visits. Glidden thereafter took this appeal.
¶ 10. On appeal,
Glidden argues that the family court's order and
the <grandparent> <visitation> statute
unconstitutionally infringe on his right
to parent Amanda by not affording his parental decision
regarding
visitation sufficient deference in light of his fitness to
adequately
parent his daughter. Because Glidden is challenging the
constitutionality
of the statute, the Vermont Attorney General's Office
intervened for the
State in this appeal, and argues for a constitutional
construction of the
statute. For the reasons that follow, we agree with the
State that the
statute is not unconstitutional on its face, but we reverse
the family
court's order because we find meritorious Glidden's claim
that the statute
exceeds constitutional boundaries as applied in this case.
¶ 11. We review an
order granting visitation to determine whether
the court exercised its discretion on grounds that are
clearly unreasonable
or untenable. Cleverly v. Cleverly, 151 Vt. 351, 355-56, 561
A.2d 99, 102
(1989). When considering the constitutionality of a statute
we begin by
presuming that the legislative enactment is constitutional.
In re
Proceedings Concerning a Neglected Child, 129 Vt. 234,
240-41, 276 A.2d 14,
18 (1971). In the absence of "clear and irrefragable
evidence that [the
statute] infringes the paramount law," we will not
strike down a statute as
unconstitutional. Id. Moreover, if we can construe the
statute in a
manner that meets constitutional requirements, we will do so
unless the
statute's plain language precludes it. In re Montpelier
& Barre R.R.,
135 Vt. 102, 103-04, 369 A.2d 1379, 1380 (1977). Therefore,
we examine
Vermont's <grandparent> <visitation> statute in
the context of the visitation
order at issue in this appeal to determine whether the court
abused its
discretion by applying the statute in a manner that
infringes on Glidden's
right to raise Amanda without interference by the State.
¶ 12. The United
States Supreme Court has "long recognized that
freedom of personal choice in matters of marriage and family
life is one of
the liberties protected by the Due Process Clause of the
Fourteenth
Amendment." Cleveland Bd. of Educ. v. La Fleur, 414
U.S. 632, 639-40
(1974). The interest of a parent in the custody, care, and
control of his
child may be the oldest of the fundamental liberty interests
our federal
constitution protects. Troxel, 530 U.S. at 65; In re S.B.L.,
150 Vt. 294,
303, 553 A.2d 1078, 1084 (1988). The state must generally
show a
compelling interest "before it encroaches upon the
private realm of family
life." In re Proceedings Concerning a Neglected Child,
130 Vt. 525, 530,
296 A.2d 250, 253 (1972). Indeed, there is a
"presumption that fit
parents act in the best interests of their children."
Troxel, 530 U.S. at
68. "[S]o long as a parent adequately cares for his or
her children (i.e.,
is fit), there will normally be no reason for the State to
inject itself
into the private realm of the family to further question the
ability of
that parent to make the best decisions concerning the
rearing of that
parent's children." Id. at 68-69.
¶ 13. That principle
was central to the United States Supreme
Court's plurality holding in Troxel v. Granville, where the
Court held
that a Washington statute providing for grandparent and
other third-party
visitation was unconstitutionally applied. Id. at 67.[fn2]
The Washington
statute at issue was "breathtakingly broad"
because it allowed "`any
person'" to petition the court for visitation rights
"`at any time,'" and
authorized the court to grant a petition whenever
"`visitation may serve
the best interest of the child.'" Id. (quoting Wash.
Rev. Code §
26.10.160(3) (1994)). Of particular concern to the plurality
was that in
applying the statute to a grandparent's request for
visitation, the
Washington court afforded no deference to a parent's
determination of the
child's best interests. Id. at 67-69. The statute lacked any
requirement that a
court accord the parent's decision
any presumption of
validity or any weight whatsoever.
Instead, the
Washington statute places the
best-interest
determination solely in the hands of the
judge. Should the
judge disagree with the parent's
estimation of the
child's best interests, the judge's
view necessarily
prevails. Thus, in practical effect,
in the State of
Washington a court can 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 (emphasis in original).
¶ 14. The Supreme
Court concluded that the Washington statute was
unconstitutional as applied in Troxel due to the absence of
any
consideration of, or deference to, the parent's decision
regarding
grandparent-child contact. Id. It also recognized that the
burden of
litigation in a domestic relations proceeding can itself so
disrupt the
parent-child relationship that the custodial parent's
constitutional right
to make basic determinations for a child's well being can be
jeopardized. Id. at 75; see also id. at 101 (Kennedy, J.,
dissenting).
¶ 15. Our cases
involving conflict between a custodial parent's
right to make decisions for the child and a noncustodial
parent's right
to visitation recognize the need for judicial deference to
the custodial
parent's decision about the child's best interests. In Lane
v. Schenck, we
observed that "[w]hile the policy promoting visitation
must be
considered, concerns relating to it must not overshadow the
proper role
of the custodial parent." 158 Vt. 489, 499, 614 A.2d
786, 791 (1992). We
further explained that "[v]isitation should function to
foster beneficial
relations between the children and the noncustodial parent,
but
visitation does not warrant nullification of the custodial
parent's
reasonable decisions." Id.; see also McCart v. McCart,
166 Vt. 629, 630,
697 A.2d 353, 353 (1997) (mem.) (court improperly
substituted its
judgment for custodial parent's by prohibiting custodial
parent from
moving solely because move would disrupt father's visitation
with
children). Thus, our cases have already recognized the
Troxel principle
of deferring to a custodial parent's decision regarding the
welfare of
the child, even when the decision conflicts with the
associational
interest of the child's noncustodial parent as protected by
state
statute. See 15 V.S.A. § 650 (public policy expressed by
Legislature
favors opportunity for maximum parent-child contact
following divorce or
separation unless significant physical or emotional harm to
child or
parent would likely result from contact).
¶ 16. Those
decisions are relevant to put Mech's claim here in
proper perspective. At common law, grandparents had no
rights of
visitation by virtue of their status as grandparents.
Troxel, 530 U.S. at
97 (Kennedy, J., dissenting); Note, <Grandparent>
<Visitation> Statutes: Do
Legislatures Know the Way to Carry the Sleigh Through the
Wide and
Drifting Law?, 53 Fla. L. Rev. 321, 325 (2001). At common
law, a parent's
obligation, if any, to facilitate a relationship between the
child and
the child's grandparents was a moral one only. Troxel, 530
U.S. at 97
(Kennedy, J., dissenting); <Grandparent>
<Visitation> Statutes, supra, at 324
n. 12. Now, all fifty states have statutes that provide for
<grandparent>
<visitation> in some form. See L. Nolan, Beyond
Troxel: The Pragmatic
Challenges of <Grandparent> <Visitation>
Continue, 50 Drake L. Rev. 267, 267
n. 2 (2002).
¶ 17. It is no
surprise to learn then that after the United States
Supreme Court issued Troxel, a number of other states were
confronted
with challenges to their <grandparent>
<visitation> statutes. Although state
statutes vary, courts in states with statutes more limited
than the one
at issue in Troxel have reversed visitation orders on due
process grounds
where the lower court failed to employ a presumption in
favor of the fit
parent's visitation decision. See, e.g., McGovern v.
McGovern, 33 P.3d 506,
511-12 (Ariz.Ct.App. 2001) (construing state statute
consistent with due
process by requiring court to apply rebuttable presumption
that fit parent
acts in child's best interests); Seagrave v. Price, 79
S.W.3d 339, 345
(Ark. 2002) (trial court's failure to apply a presumption in
favor of
custodial parent's decision regarding visitation renders
order
unconstitutional); Kan. Dep't of Soc. & Rehab. Servs. v.
Paillet,
16 P.3d 962, 970 (Kan. 2001) (<grandparent>
<visitation> order reversed
because trial court made no presumption that fit parent acts
in child's
best interests); Roby v. Adams, 68 S.W.3d 822, 828
(Tex.Ct.App. 2002)
(grandparent has burden to overcome presumption in favor of
fit parent's
decision to establish best-interests-of-child prong of
<grandparent>
<visitation> statute); see also Wickham v. Byrne, 769
N.E.2d 1, 7-8 (Ill.
2002) (holding section of <grandparent>
<visitation> statute facially
unconstitutional because it requires finding of best
interests of child
only and does not give parental decision presumptive
weight); Blixt v.
Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002) (saving
<grandparent> <visitation>
statute from facial constitutional challenge by reading into
statute a
presumption in favor of parent's visitation decision). The
presumption in
favor of the fit parent's decision reflects Justice
O'Connor's
observation in the Troxel plurality opinion:
[T]he decision
whether . . . an intergenerational
relationship would
be beneficial in any specific case
is for the parent to
make in the first instance. And,
if a fit parent's
decision of the kind at issue here
becomes subject to
judicial review, the court must
accord at least some
special weight to the parent's
own determination.
Troxel, 530 U.S. at 70.
¶ 18. Other state
cases have relied on the lack of compelling
circumstances to justify overturning state-sanctioned and
judicially-enforceable visitation orders in light of the
parent's
constitutional interests. See, e.g., Linder v. Linder, 72
S.W.3d 841, 857
(Ark. 2002) (strict scrutiny analysis applies and requires
compelling
state interest to overcome presumption in favor of fit
parent's choice);
Stacy v. Ross, 99-CA-00579-SCT, 23, 798 So.2d 1275 (Miss.
2001)
(grandparent seeking visitation must show compelling
circumstances to
override parent's visitation decision); see also Blixt, 774
N.E.2d at
1059-60 (grandparent may rebut presumption in favor of fit
parent by
showing significant harm to child will result from lack of
visitation
order because state has compelling interest to protect
children from
harm). At least one state court overturned a visitation
order concluding
that the litigation's intrusiveness resulted in an
unconstitutional
application of the <grandparent> <visitation>
statute. Wilde v. Wilde,
775 A.2d 535, 545-46 (N.J. Super.Ct.App.Div. 2001); see also
Blixt, 774
N.E.2d at 1066 (recognizing burden of litigation on parents,
court
requires grandparent to submit detailed and verified
petition to show
grandparent can meet evidentiary burden because notice
pleading is not
adequate to safeguard parents from unwarranted
<grandparent> <visitation>
petitions).
¶ 19. On its face,
Vermont's <grandparent> <visitation> statute makes
no provision for deference to parental decision making as
required under
Troxel and our own precedent. Granted, the statute does not
suffer from
the "breathtakingly broad" "any person"
language in Washington's
statute, as characterized by Justice O'Connor's plurality
opinion in
Troxel, because the statute is limited to visitation for
grandparents
only. The statute broadly permits the family court, however,
to "award
visitation rights to a grandparent of the child, upon
written request of
the grandparent filed with the court, if the court finds
that to do so
would be in the best interest of the child." 15 V.S.A.
§ 1011(a).
Section 1013(b) provides criteria for the court to employ
when
considering whether <grandparent> <visitation>
is in the child's best
interests, but the custodial parent's decision on the
question is not
among them. See 15 V.S.A. § 1013(b) (listing mandatory
criteria).
Although the statute does not afford grandparents party
status or appeal
rights, see id. § 1011(b), (c), it allows them to move for
enforcement of the order as would any party. Id. § 1011(d).
¶ 20. Like the
Washington statute, the Vermont statute commands
consideration of the "best interest of the child,"
id. § 1011(a), and
as a result, carries the same risk of unconstitutional
application
— that it may effect the same deprivation of fundamental
parental
rights suffered under the Washington court order in Troxel.
Although the
"best interests of the child" standard is
familiar, see, e.g.,
15 V.S.A. § 665 (setting forth best interests standard to
determine
parental rights and responsibilities in a divorce
proceeding), the
<grandparent> <visitation> statute uses the
standard in a new context. Based
on the plurality's reasoning in Troxel, the standard, left
unspecified
and undefined, cannot survive a due process challenge. It is
for this
Court, therefore, to construe this statute to render it
constitutional.
Montpelier & Barre R.R., 135 Vt. at 103-04, 369 A.2d at
1380. We
conclude that § 1011's "best interests"
consideration can be
construed within the context of the <grandparent>
<visitation> statute to
satisfy due process.
¶ 21. To accord with
due process, an evaluation of the best
interests of the child under § 1011 requires that a parental
decision
concerning <grandparent> <visitation> be given a
presumption of validity. See
Troxel, 530 U.S. at 69; McGovern, 33 P.3d at 511-12;
Seagrave, 79 S.W.3d at
345; Paillet, 16 P.3d at 970; Roby, 68 S.W.3d at 828. A
grandparent may
rebut that presumption by providing evidence of compelling
circumstances to
justify judicial interference with the parent's visitation
decision.
Stacy, 99-CA-00579-SCT, 23, 798 So.2d at 1280. That a child
might
benefit from contact with a grandparent or that a parent
might deny
<grandparent> <visitation> for no good reason in
the court's view are not the
kind of compelling circumstances contemplated by the
Constitution or this
decision. Rather, to overcome a parent's decision on
<grandparent>
<visitation>, a grandparent must show circumstances
like parental unfitness,
see Linder, 72 S.W.3d at 858 (some special factor like
unfitness of
custodial parent must exist to justify state interference in
parent's right
to decide <grandparent> <visitation> issue);
Stacy, 99-CA-00579-SCT, 23, 798
So.2d at 1280 (compelling circumstances suggesting something
close to
unfitness of custodial parent may be sufficient to justify
visitation award
to grandparents over parent's objection), or significant
harm to the child
will result in the absence of a visitation order (thus
suggesting parental
unfitness), see Linder, 72 S.W.3d at 858 (harm to the child
in absence of
visitation order may warrant overriding parent's visitation
decision);
Blixt, 774 N.E.2d at 1060 (to rebut presumption in custodial
parent's
favor, grandparent must prove that failure to grant
visitation will "cause
the child significant harm by adversely affecting the
child's health,
safety, or welfare"). This construction of the statute
minimizes the risk
that a court will substitute its judgment for that of the
parent simply
because the court disagrees with the parent's decision. Our
construction
of the statute also recognizes that a dispute between a fit
custodial
parent and the child's grandparent over <grandparent>
<visitation> "is not a
contest between equals." Stacy, 99-CA-00579-SCT, 23,
798 So.2d at 1280;
see also Wickham, 769 N.E.2d at 7-8 (finding
unconstitutional a statute
that places parent on equal footing with third parties
seeking visitation
with the child). Because we can construe Vermont's
<grandparent> <visitation>
statute consistent with constitutional requirements,
Glidden's facial
challenge to the statute must fail.
¶ 22. Having
concluded that Vermont's <grandparent> <visitation>
statute is not facially invalid, we now turn to Glidden's
claim that the
family court applied the statute in a manner that violated
his
constitutional rights. Two reasons persuade us that the
family court's
order impermissibly infringes on Glidden's right to decide
what
visitation is in his daughter's best interests. First, there
was no
allegation or finding that Glidden was not fit to parent
Amanda; in
fact, he was her sole legal and physical custodian. Second,
there was no
allegation or finding that Amanda would suffer significant
harm without
court-ordered visits with Mech. Glidden testified, and the
court found,
that he wants his daughter to maintain a relationship with
her
grandmother, but wanted a limited visitation schedule of his
choosing.
Critically, the court acknowledged that Glidden had a
reasonable and
justifiable reason for his reluctance to grant the
visitation Mech sought
due to a convicted sex offender's presence in her household.
Nevertheless, the court shared Mech's fear that Glidden
might restrict
visits due to his concerns about his daughter's well being
while in her
care. As a result of that fear, and the history of conflict
between Mech
and Glidden, the court decided to "substitute it's
[sic] judgment over
the discretion of the father in terms of the scheduling and
requirement
for <grandparent> <visitation>." The order
reads as if the court presumed
visits with Mech were in Amanda's best interests and that
Glidden's
desire to limit or condition such visits was insufficient to
overcome
that presumption. In effect, the court employed a
presumption directly
contrary to that required by constitutional precedents,
namely, that a
fit parent's decision governs in a dispute about visitation
between the
child and a third party, including the child's grandparent.
The court's
rationale for entering an enforceable visitation order — to
eliminate the potential for Glidden to restrict visitation
due to his
otherwise valid parental concerns — is far from compelling,
and,
standing alone, is not enough to sustain the decision. The
court's order
is thus precisely the type of decision making which, by
disregarding and
giving no deference to a fit custodial parent's
determination of the
child's best interests, exceeds the bounds of the Due
Process Clause,
violates Glidden's fundamental rights, and was held
unconstitutional in
Troxel. See Troxel, 530 U.S. at 69-70.
¶ 23. Obviously the
court will often "differ with the custodian as
to the wisdom of a certain parental decision." Lane,
158 Vt. at 496, 614
A.2d at 790. It may not, however, "lightly replace the
judgement of the
custodian with its own." Id. Because of the
long-standing recognition of
the right to raise children free from state interference,
"[i]t would be
anomalous, then, to subject a parent to any individual
judge's choice of a
child's associates from out of the general population merely
because the
judge might think himself more enlightened than the child's
parent."
Troxel, 530 U.S. at 79 (Souter, J., concurring).
¶ 24. Although we
conclude that the trial court's failure to defer
to Glidden's decision on visitation without a showing of
compelling
circumstances requires us to reverse the order, we elaborate
on one other
significant aspect of this case that further supports our
decision. As
Justice Kennedy's dissent in Troxel explained, the
litigation of
visitation disputes can be so disruptive to the parent-child
relationship
that the proceeding itself can have constitutional
implications. Troxel,
530 U.S. at 101 (Kennedy, J., dissenting); see also Beyond
Troxel,
supra, at 287-88 (discussing financial and other intangible
costs of
<grandparent> <visitation> litigation). Although
the Legislature has
restricted a grandparent's party status and appeal rights
under the
<grandparent> <visitation statute, see 15 V.S.A. §
1011(b), (c), a
court-sanctioned visitation schedule is enforceable, and a
parent who
disobeys the order may be held in contempt. See id. §
1011(d);
12 V.S.A. § 122; see Beyond Troxel, supra, at 285. The
ability to
enforce an order, and the availability of contempt to
redress a parent's
otherwise reasonable decision on visitation, can allow the
grandparent to
assert considerable control over the family. Grandparents
may turn to the
court for relief each time they perceive the parent is not
following the
court order and thereby ask the court to micromanage the
parent's
otherwise constitutionally protected right to raise the
child free from
state interference. See Beyond Troxel, supra, at 286; see
also Wilde, 775
A.2d at 545 ("Because the litigation itself
`implicates' the parent's
constitutional rights, a grandparent's statutory right to
hale a parent
into court must be carefully circumscribed, particularly
where[] . . .
the parent's fitness is not disputed.").
¶ 25. In this case,
since Amanda established a relationship with
her father and became a member of his household, a
significant amount of
conflict about contact between her and Mech has occurred,
requiring
numerous court proceedings. Those proceedings, and the
potential for
further proceedings related to the visitation order here,
can be
considered so burdensome to Glidden that his right to raise
Amanda
without interference by the State is implicated. See Troxel,
530 U.S. at
75 (recognizing that parent's constitutional right to raise
child can be
implicated by burden of litigating domestic relations
proceeding).
Therefore, our decision today circumscribes Mech's statutory
right under
§ 1011 so as to protect Glidden's constitutional rights to
raise
Amanda without having to justify his decisions to the State.
¶ 26. In an ideal
world, going over the river and through the woods
to grandmother's house might bring nothing but joy to all concerned.
However, in this case, as the trial court acknowledged, the
child's father
had good reason to question the wisdom of allowing the
amount of
unrestricted visitation grandmother requested. The court's
decision in
effect found father a fit parent for all purposes save one:
making the
decision about how often and in what manner his child would
visit with the
grandmother. In so deciding, the court erred and its
decision cannot
stand.
Reversed.
FOR THE COURT:
_______________________________________
Associate Justice
[fn1] The home study recommended that Amanda reside with
Glidden and his
family. The record is unclear, however, about what use, if
any, the court
made of the study.
[fn2] Justice O'Connor's opinion was joined by Chief Justice
Rehnquist
and Justices Ginsburg and Breyer. See Troxel, 530
Souter and Thomas concurred in the judgment, but rendered
separate
concurring opinions. See id. at 75 (Souter, J. concurring)
and 80
(Thomas, J., concurring). Like the plurality, Justice Souter
was
concerned that the
to the custodial parent's visitation decision, but he
concluded that the
sweep.
that he would affirm the judgment below on the grounds that
the state had
failed to demonstrate "even a legitimate governmental
interest — to
say nothing of a compelling one — in second-guessing a fit
parent's
decision regarding visitation with third parties."
J., concurring). Justices Stevens, Scalia, and Kennedy each
wrote
separate dissenting opinions. See id. at 80 (Stevens, J.,
dissenting), 91
(Scalia, J., dissenting), and 93 (Kennedy, J., dissenting).