In Re The Matter Of John S. Mcclean. 1

• Decision Date: 26 August 2010
• Docket Number: File No. CS06-01158.,In the Interest of Brett J. McClean (f/k/a Brett J. Stolz, Jr.) DOB: 01 09, 2003.,Petition No. 10-12243.
• Parties: In re the Matter of John S. McCLEAN. 1
• Court: Delaware Family Court

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In re the Matter of John S. McCLEAN. ¹

Family Court of Delaware,Sussex County. In re the Matter of John S. McCLEAN. ¹ Kate McClean, Petitioners,
v.
Diane Doty, Daniel A. Doty, Respondents.
In the Interest of Brett J. McClean (f/k/a Brett J. Stolz, Jr.) DOB: 01 09, 2003. File No. CS06-01158.
Petition No. 10-12243. Submitted: June 30, 2010.
Decided: Aug. 26, 2010.

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Stephen Welsh, Esquire, The Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for John and Kate McClean.

Patrick Vanderslice, Esquire, The Law Office of Moore and Rutt, P.A., Georgetown, DE, Attorney for Diane and Daniel Doty.

HENRIKSEN, J.

This is the Court's Decision and Order on the motion filed by the petitioners, the child's biological mother and adoptive father, asking this Court to set the standard the Court should use in considering Petitioners' request to modify visitation presently enjoyed between the above-named minor child and Diane Doty, the child's biological paternal grandmother, and her husband Daniel A. Doty. Biological Father's mother and her husband were awarded grandparent visitation pursuant to an Order issued following a contested hearing. The contested hearing and resulting Order were held and issued, respectively, prior to Biological Father's parental rights being terminated and the child then being adopted by petitioning Adoptive Father. Mother and Adoptive Father want the Court to impose a standard that would now require Biological Paternal Grandmother and her husband to prove the child is dependent and/or neglected in the care of Mother and Adoptive Father in order for them to continue their present Court ordered visitation. Biological Paternal Grandmother and her husband aver any modification of their visitation, if at all, shall only be considered if such a modification is in the child's best interest.

In a Decision dated August 09, 2007, this Court granted the respondents, the then paternal grandmother and step-grandfather of the child, rather frequent and liberal visitation following the standard visitation guidelines then generally followed by the Family Court of the State of Delaware. ² As such, Respondents, who for simplicity in this Decision will be referred to as “Paternal Grandparents,” were awarded visitation on alternate weekends, one evening per week once the child enters kindergarten, alternating holidays, alternating school vacations, and four weeks of extended visitation every summer. In arriving at this decision, the Court accepted the child's biological father's statement that he had no desire to see the child, but he believed his own mother and step-father should be able to see the child. Biological Father described the paternal grandparents as “very loving grandparents who present no danger to the child.” ³ The Court's Decision noted the frequent involvement of the paternal grandparents in the child's life. The Court's Decision also noted the paternal grandparents often intervened for the safety of the child against the biological father on behalf of the child's biological mother. Not only were Paternal Grandparents involved in the child's life, but other members of Biological Father's extended family had also been considerably involved in the majority of the child's life.

In making its visitation decision in 2007, the Court placed upon the grandparents the burden of establishing by a preponderance of the evidence that visitation with the grandparents was in the best interest of the child. The Court's Decision also recognized the necessity of giving Mother's opinion great weight, especially where there was no testimony presented at the hearing that Mother was an unfit parent.

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At the time, however, the Court found that Mother could not provide any legitimate reasons as to why Paternal Grandparents should not continue to be involved in the child's life. The Court concluded, “it was quite apparent to the Court that the paternal grandparents' involvement in this child's life, along with the involvement of the extended family through them, was beneficial to this child's growth and development.” ⁴

At the time of the hearing which led to the August 09, 2007 Order, Mother and the now Adoptive Father had just married on July 07, 2007. They informed the Court that they planned to file a petition to terminate Biological Father's parental rights, with Mother's new husband intending to adopt the child.

Biological Father's paternal rights were terminated by Order dated August 21, 2009. Adoption of the child was granted on September 23, 2009, at which time the child's legal name was changed.

At the time of the hearing leading to the Court's Decision and Order dated August 09, 2007, the Delaware Legislature had provided grandparents with reasonable visitation rights. ⁵ Furthermore, the Legislature had provided, “that wherever practical, the Court shall provide that the paternal grandparents' visitation time shall occur when the child is placed with or has visitation with Father ...” ⁶ Although the grandparent statute stated that grandparent visitation could not be granted over the objection of both parents, natural or adoptive, when the parents were cohabiting as husband and wife, the law also added, “the trier of facts shall make the ultimate decision based upon the best interest of the child.” ⁷ The statute therefore basically followed the guidance provided in the United States Supreme Court Decision of Troxel v. Granville which held that a fit parent's decision about whether to grant grandparent visitation must be afforded great weight, and the burden of proof falls upon the grandparents to show that their visitation is in the best interest of the child. ⁸

On June 16, 2009, Delaware adopted a third-party visitation statute which can be found in Title 13 of the Delaware Code, beginning at section 2410. This statute expands beyond just grandparents a group of persons who can seek third-party visitation. The statute permits, subject to certain limitations, a person to seek visitation with a child where that person “has a substantial and positive prior relationship with the child.” ⁹ The Court cannot help but note the Delaware Supreme Court in 1991 already recognized the right of Family Court Judges to award third-party visitation where the Court determined such visitation was in the best interest of a child. ¹⁰

Opinion

The new third-party visitation statute makes it difficult for a parent and their relatives from exercising third-party visitation, even though they had a substantial positive prior relationship with a child, where the parent's rights have been terminated in the child. ¹¹ Thus, a parent whose

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rights have been terminated in a child, as well as their relatives, are prohibited from filing a third-party visitation petition unless one of the following three exceptions applies:

(1) More than three years have passed since the termination of parental rights order was entered and the child has not been adopted; or

(2) The adoptive parents are agreeable and their notarized consent is attached to the petition; or

(3) The adoptive parents have previously entered into a written notarized agreement or court-approved agreement for continued visitation and a copy of the agreement is attached to the petition. ¹²

The facts of the present case, however, are distinguishable from the statutory restriction prohibiting a terminated parent or their relatives from filing for third-party visitation, because the paternal grandparents in this action are not filing for visitation. Instead, they already are exercising visitation pursuant to this Court's prior Order dated August 09, 2007, which was issued following a contested hearing. ¹³ As can be seen from the reading of that Decision, the Court gave great weight to the then fit custodial mother's opinion but found Mother's reasons for objecting to grandparent visitation to be overwhelmingly outweighed by the benefit to the child to be gained by permitting visitation with the paternal grandparents and extended family. ¹⁴ Although Adoptive Father argues his constitutional rights as a parent to the child were not protected in the Court's prior Decision, Adoptive Father had not adopted the child as of the date of the prior hearing, and he therefore had no standing to raise such an objection at that time. The Court can think of no legal basis which would now allow Adoptive Father to retroactively raise a constitutional objection, especially where Mother's constitutional rights, similar to the rights that would have been Adoptive Father's, were taken into account at the time.

One of my colleagues on the Family Court Bench has recently found the newly enacted third-party visitation statute to be unconstitutional as written. ¹⁵ As I understand Judge Newell's opinion, he found the present third-party visitation statute to be unconstitutional, because it unfairly failed to provide a single parent the same right of an absolute veto given by the statute to two parents to veto requests for third-party visitation. ¹⁶ The two-parent veto could be overridden only when it could be shown the child was dependent, neglected, or abused in the care of either of the parents. ¹⁷

In the present case, where the child now has an adoptive father and a biological mother, and together, they object to visitation by the grandparents, or at minimum, would like to limit the same, these parents aver that the current statute gives them an absolute veto power over grandparent visitation, because it has not been shown by the grandparents that the child is dependent, neglected or abused in either of their care. Even if the statute stands constitutional muster contrary to the very well reasoned arguments in Judge Newell's decision where the child only had one parent

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objecting,...