Morris R. Glidden v. Nyoakla Lynn Conley

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 July 2, 1992. Lois Mech is Nyoakla Conley's
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.