Ailport v. Ailport

• Citation: 2022 WY 43
• Decision Date: 31 March 2022
• Docket Number: S-21-0166
• Parties: JILL REBECCA AILPORT and SHANE ARTHUR AILPORT, Appellants (Petitioners), v. TRAVIS AILPORT; SHELLEY AILPORT; DUSTIN AILPORT; LEXIE AILPORT and JESSICA LESSER, Appellees (Respondents).
• Court: United States State Supreme Court of Wyoming

2022 WY 43

JILL REBECCA AILPORT and SHANE ARTHUR AILPORT, Appellants (Petitioners), v. TRAVIS AILPORT; SHELLEY AILPORT; DUSTIN AILPORT; LEXIE AILPORT and JESSICA LESSER, Appellees (Respondents).

No. S-21-0166

Supreme Court of Wyoming

March 31, 2022

Appeal from the District Court of Converse County The Honorable F Scott Peasley, Judge

Representing Appellants:

Anna Reeves Olson, Park Street Law Office, Casper, Wyoming; Tyler J. Garrett, Hathaway & Kunz LLP, Cheyenne, Wyoming. Argument by Ms. Olson and Mr. Garrett.

Representing Appellees:

Judith Studer, Elizabeth B. Grill, and Patrick T. Holscher of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming. Argument by Ms. Studer and Ms. Grill.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ JUSTICE.

[¶1] Jill Rebecca Ailport and Shane Arthur Ailport (collectively referred to as "Grandparents") are the grandparents of five children (collectively referred to as "Children"). They filed a petition against the parents of Children-Travis Ailport, Shelley Ailport, Dustin Ailport, Lexie Ailport, and Jessica Lesser (collectively referred to as "Parents")-to establish visitation under the grandparent visitation statute, Wyo. Stat. Ann § 20-7-101 (LexisNexis 2021). The district court ruled Grandparents did not prove their right to visitation under the statute and denied their petition. We affirm on somewhat different grounds than those relied upon by the district court.

ISSUES

[¶2] Although Grandparents state different issues for our review, we conclude resolution of the following issues is necessary to decide this appeal:

1. Did the district court adequately protect Parents' fundamental constitutional rights as parents in the action brought by Grandparents under § 20-7-101 to establish visitation with Children?

a. Were Grandparents required to establish Parents were unfit or Children would be harmed by Parents' visitation decisions to succeed on their petition?

b. Is the clear and convincing evidence standard of proof applicable to grandparent visitation actions?

2. Did Grandparents meet their burden of proving they were entitled to court-ordered visitation in this case?

FACTS

[¶3] Travis and Dustin are Grandparents' sons, and they are married to Shelley and Lexie, respectively.^[1] Travis and Jessica Lesser were previously in a relationship and are CJA's parents. Travis and Shelley are CA and ZA's parents, and Dustin and Lexie are RA and BA's parents. In August 2019, a rift developed between Grandparents and Parents.

[¶4] A few months later, Grandparents filed a petition against Parents under § 20-7-101 to establish visitation rights with Children. Grandparents claimed the district court was required to order visitation because it was in Children's best interests and it would not substantially impair Parents' rights. Parents opposed court-ordered visitation. While they agreed visitation with Grandparents was, in principle, in Children's best interests, they wanted to retain the authority to decide when, where, and under what conditions visitation would take place. In general, Parents preferred to supervise the four younger Children's visitation with Grandparents because they were all under seven years old at the time of the trial and had spent little time alone with Grandparents. Travis, Jessica, and Shelley indicated a willingness to allow Grandparents more contact with CJA, who was older and had a more established relationship with them. On the other hand, Grandparents wanted to control the location and conditions of visitation with all the children through a court order.

[¶5] The district court adopted an enhanced best interest analysis to bring § 20-7-101 in accord with the substantive due process principles set out by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).^[2]Applying the test, the district court concluded Grandparents had not met their burden of proving by clear and convincing evidence they were entitled to visitation over Parents' objections. Grandparents appealed. We will provide additional facts in our discussion of the issues.

DISCUSSION

History of § 20-7-101

[¶6] At common law, grandparents had no right to visitation with their grandchildren unless the parents allowed it. Michael v. Hertzler, 900 P.2d 1144, 1146 (Wyo. 1995) (citing Matter of Adoption of RDS, 787 P.2d 968 (Wyo. 1990)). See also, Hede v. Gilstrap, 2005 WY 24, ¶ 33, 107 P.3d 158, 172 (Wyo. 2005) (historically grandparent visitation rights derived exclusively from parents) (citations omitted). In 1991, the Wyoming legislature created an original action for grandparents to seek court-ordered visitation with their grandchildren. Michael, 900 P.2d at 1147; § 20-7-101. The general justifications for grandparent visitation laws are:

"It is [a] biological fact that grandparents are bound to their grandchildren by the unbreakable links of heredity. It is common human experience that the concern and interest grandparents take in the welfare of their grandchildren far exceeds anything explicable in purely biological terms. A very special relationship often arises and continues between grandparents and grandchildren. The tensions and conflicts which commonly mar relations between parents and children are often absent between those very same parents and their grandchildren. Visits with a grandparent are often a precious part of a child's experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship. Neither the Legislature nor this Court is blind to human truths which grandparents and grandchildren have always known."

Goff v. Goff, 844 P.2d 1087, 1090-91 (Wyo. 1993) (quoting Mimkon v. Ford, 332 A.2d 199, 204-05 (N.J. 1975)).

[¶7] In Michael, we considered a substantive due process challenge to the 1994 version of Wyoming's grandparent visitation statute, which stated in relevant part:

(a) A grandparent may bring an original action against any person having custody of the grandparent's minor grandchild to establish reasonable visitation rights to the child if:

(i) The grandparent's child who is the parent of the minor grandchild has died or has divorced the minor grandchild's other parent and the person having custody of the minor grandchild has refused reasonable visitation rights to the grandparent; or

(ii) An unmarried minor grandchild has resided with the grandparent for a period in excess of six (6) consecutive months before being returned to the custody of the minor grandchild's parents and the parents have refused reasonable visitation rights to the grandparent.

(b) In any action or proceeding under subsection (a) of this section, the court may grant reasonable visitation rights to the grandparent of a child if the court finds, after a hearing, that visitation would be in the best interest of the child and that the rights of the child's parents are not substantially impaired.

Michael, 900 P.2d at 1144-45 (quoting Wyo. Stat. Ann. § 20-7-101 (1994)). The substantive component of the due process clause in the Fourteenth Amendment to the United States Constitution

"bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them." Reiter [v. State, 2001 WY 116, ] ¶ 20, 36 P.3d [586, 592-93 (Wyo. 2001)] (citations and quotation marks omitted); see Laughter v. Bd. of Cnty. Comm'rs for Sweetwater Cnty., 2005 WY 54, ¶ 42, 110 P.3d 875, 887 (Wyo. 2005). We have principally adopted "the two-tiered scrutiny employed by the federal courts in analyzing substantive due process ... challenges." Reiter, ¶ 20, 36 P.3d at 593. If a statute affects a fundamental interest, we must strictly scrutinize that statute to determine if it is necessary to achieve a compelling state interest-often referred to as the strict scrutiny test. Id. On the other hand, if the statute simply affects ordinary interests in the economic and social welfare area, we only need to determine that it is rationally related to a legitimate state objective, which is often referred to as the rational basis test. Id.

Vaughn v. State, 2017 WY 29, ¶ 26, 391 P.3d 1086, 1095 (Wyo. 2017).

[¶8] In Michael, 900 P.2d at 1148, we recognized parents have a fundamental due process right to raise their children as they see fit and make decisions regarding their associations without interference from the government. See also, Meyer v. Neb., 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923) (liberty interest "denotes not merely freedom from bodily restraint" but also the right of any individual to establish a home and bring up children (citation omitted)). Because § 20-7-101 interfered with these fundamental rights, we applied strict scrutiny to determine whether the statute satisfied due process. Michael, 900 P.2d at 1148. Strict scrutiny "demands identification of a compelling state interest. The compelling state interest then must be balanced against the fundamental right, and the method of protecting that compelling state interest must be the least intrusive by which that interest can be accomplished." Id. (citing State in the Interest of C, 638 P.2d 165, 173 (Wyo. 1981)). We held the State, in its role as parens patriae, has a compelling interest in protecting the health, safety, and welfare of children, which, under proper circumstances, may include fostering the relationship between grandparents and their grandchildren. Id. at 1149.

[¶9] To balance the various interests at stake, § 20-7-101 (1994) required proof "visitation [was] in the best interest of the child and the rights of the child's parents [were] not substantially impaired." Id. at 1151. We ruled the statute was "sufficiently narrowly...