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Utah Supreme Court sets high bar for grandparent visitation orders

First Published      Last Updated Sep 18 2015 09:23 pm

Ruling » Parents generally have final say on who interacts with their children.

In 2000, the U.S. Supreme Court ruled a "mere disagreement" over a child's best interests cannot override the presumption in favor of a fit parent's decision regarding grandparent visitation.

This week, the Utah Supreme Court ruled that grandparents seeking to override parents must present proof that a visitation order is narrowly tailored to advance a compelling governmental interest — such as protecting children against substantial harm.

In Ellie and Tracy Jones Sr.'s dispute with their former daughter-in-law over visitation with their granddaughter, the couple argued that they had acted in a parent-like role as caregivers. But the state Supreme Court said there was insufficient evidence of such a relationship and upheld a Utah Court of Appeals decision that invalidated a visitation order issued against the wishes of the mother.




"Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent's wishes would cause substantial harm to the child," Associate Chief Justice Thomas Lee wrote for the court in Wednesday's unanimous decision.

The exceptional case identified by state statute is where the grandparent has filled a role similar to that of a parent, Lee said, adding, "No such proof was presented here." Anthony Kaye, an attorney who represents the mother, said Friday that the ruling will subject grandparent visitation orders to strict scrutiny and limit interference in parental decisions regarding visitation.

"Grandparents often play a significant role in the lives of their grandchildren, and no one contests that," Kaye said. "But the interests of grandparents, no matter how well meaning, do not trump the rights of parents to determine what's best for their children."

Bryant McConkie, the grandparents' attorney, said his clients love their granddaughter and are heartbroken. He said the ruling will make it more difficult for grandparents to get visitation if a parent objects.

"I think there will be very few cases that can meet the standard that has been set forth," he said.

According to court records, Ellie and Tracy Jones, who lived about an hour away from their granddaughter, visited her about once or twice a month and occasionally babysat during the first 14 months of her life. After Sharon Jones and Tracy Jones Jr. divorced, the son moved in with his parents for six weeks, beginning in January 2009.

Tracy Jones Jr. shared custody of his daughter, and the little girl spent several days a week at the grandparents' home. When the grandparents were not at their full-time jobs, they took part in the day-to-day care of their granddaughter, court documents say.

In early May 2009, Tracy Jones Jr. died of a heroin overdose while his daughter was in his custody and the child was returned to her mother's custody, according to court records.

The grandparents were unhappy when Sharon Jones denied their request for weekend and overnight visits, court documents say. Eventually, they filed a petition in 3rd District Court, seeking unsupervised visitation with the girl for two weekends a month, two consecutive weeks during the summer for a vacation and half of all major holidays and her birthdays.

After a two-day trial, Judge Judith Atherton found Jones was "a very fit, proper, caring mother" but ruled in favor of the grandparents and ordered unsupervised visitation every other weekend, alternating between overnight visits from Friday to Saturday evenings and eight-hour visits on Saturday afternoons.

The mother appealed, challenging the visitation order as an infringement of her fundamental rights as a parent.

The Utah Court of Appeals reversed the 3rd District decision, ruling that there was no compelling interest supporting the visitation award. The appeals court also said the visitation was not narrowly tailored, noting it was more substantial than the visitation many grandparents have.

The grandparents appealed, leading to this week's decision.

Lee said it is hard to fault the Joneses for seeking to preserve their relationship with their granddaughter.

"As compassionate human beings, we can hope that all grandparental relationships will be healthy, meaningful and respected," Lee wrote. "But court-ordered relationships are another matter. In this sensitive field the United States Supreme Court has recognized a fundamental right of parents to control the upbringing of their children. That means that parents, as a general rule, have the final say in who has a right to interact with their children on a regular basis."

pmanson@sltrib.com

Twitter: @PamelaMansonSLC

 

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