Herbst, In re, 89548

• Court: Supreme Court of Oklahoma
• Writing for the Court: KAUGER; OPALA; OPALA
• Citation: 971 P.2d 395
• Parties: In the Matter of the Application of Christopher Steven HERBST. Christopher Steven Herbst, Appellant, v. Brett Sayre and Christi Sayre, Appellees.
• Docket Number: No. 89548,89548
• Decision Date: 13 October 1998

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971 P.2d 395 1998 OK 100 In the Matter of the Application of Christopher Steven HERBST.
Christopher Steven Herbst, Appellant,
v.
Brett Sayre and Christi Sayre, Appellees. No. 89548. Supreme Court of Oklahoma. Oct. 13, 1998.

Certiorari to the Court of Civil Appeals, Div. 4. Appeal from the District Court of Garvin County, Oklahoma, R.B. McClain, Trial Judge.

¶0 Trial court denied maternal grandfather's application for visitation, finding 10 O.S. § 5(A)(1) was unconstitutional as applied to the facts of this case. Grandchild is in the custody and control of her parents, both of whom object to the applicant's proposed visitation. The grant of authority given in 10 O.S. § 5(A)(1) reveals that the district court has authority to grant grandparental visitation if the court deems it in the child's best interests. The statute does not provide for a threshold showing of harm to the child before bringing the best interests within the purview of the court. To the extent the statute purports to remove

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from parents their fundamental rights to the companionship, care, custody and management of their child, it is unconstitutional.

CERTIORARI PREVIOUSLY GRANTED. OPINION OF THE COURT OF CIVIL APPEALS VACATED. JUDGMENT OF THE TRIAL COURT AFFIRMED.

Ted W. Haxel, Purcell, for Appellant.

Laura J. Corbin, D. Craig Shew, Smith, Shew, Scrivner & Corbin, P.C., Tishomingo, for Appellees.

SIMMS, J:

¶1 Maternal grandfather appealed the denial of his application for grandparental visitation based upon the trial court's ruling that a provision in 10 O.S. Supp.1996 § 5, granting visitation rights with a grandchild, was unconstitutional as applied to the facts of this case. The Court of Civil Appeals affirmed the trial court's decision, finding application of 10 O.S. § 5(A)(1) unconstitutional under the existing facts.

¶2 Based upon our review of the record and applicable law, we affirm the trial court but vacate the opinion of the Court of Civil Appeals.

¶3 Christopher Herbst, the maternal grandfather of the minor child, S.D.S., filed an application pursuant to 10 O.S. Supp.1996 § 5, seeking visitation with his grandchild. ¹ Brett and Christi Sayre, the child's parents are married to one another and live together as an intact nuclear family. Both parents oppose any visitation of their child by Herbst. Herbst has made no allegation that S.D.S. is inadequately cared for or in danger of harm in the intact family environment, but seeks visitation asserting it is in the child's best interests to have contact with him, the maternal grandfather.

¶4 The parents sought dismissal of Herbst's application based upon the purported grant of authority under 10 O.S. § 5, which could allow court ordered grandparent visitation against the wishes of both parents in an intact nuclear family. Parents assert such an application of the statute is an unconstitutional infringement on their rights to the custody and management of their minor child. We agree.

¶5 The provision of 10 O.S. Supp.1996 § 5(A)(1) under which Herbst attempts to force visitation and which the parents argue is unconstitutional reads as follows:

Pursuant to the provisions of this section, any grandparent of an unmarried minor child shall have reasonable rights of visitation to the child if the district court deems it to be in the best interest of the child. The right of visitation to any grandparent of an unmarried minor child shall be granted only so far as that right is authorized and provided by order of the district court. ²

¶6 The first question which must be answered is whether the statute upon which Herbst relies actually confers upon him the standing and right to visitation which he claims. Then, if the statute does what Herbst claims, we must determine if the statute is constitutional. In looking at the constitutionality of our state's grandparent visitation statute, this Court must examine the parental interest which is constitutionally

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protected, determine under what circumstances and to what extent that interest may be infringed upon by the state and conclude with consideration of whether Oklahoma's statute fits within the bounds of permissible infringement.

I. What Right Does 10 O.S. Supp.1996 § 5(A)(1)Purport to Give Grandparents

¶7 The statute evolved into its present form from an original 1971 enactment which applied only in situations involving a deceased parent. ³ Each subsequent amendment to the statute appears primarily to have been a reaction to decisions of this Court, in which the Legislature has repeatedly expanded the visitation rights of grandparents. ⁴ See In re Bomgardner, 1985 OK 59, 711 P.2d 92, 94-95 (discussion regarding history of 10 O.S. § 5). However, this case presents the first time we have examined an application such as the one urged here, with the child of fit, married, parents, both of whom object to the visitation.

¶8 In looking at the statute in its current form, it states that "each and every grandparent of an unmarried minor child shall have reasonable visitation to the child if the district court deems it to be in the best interest of the child." 10 O.S. Supp.1997 § 5(A)(1). The remaining sections of the statute address various family circumstances, but none of the sections address the intact nuclear family, such as this one, with two objecting parents. As a result, the only portion of the statute which has application to the facts of this case is § 5(A)(1).

¶9 With regard to grandparent visitation, the statute clearly divests parents of the right to decide what is in their child's best interest and gives that determination to the district court. In this respect, the statute vests Herbst with the standing to pursue visitation rights over the objections of the parents. Therefore, we must next evaluate the constitutionality of the statute.

II. Parents' Constitutionally Protected Interest

¶10 This Court and the United States Supreme Court have repeatedly recognized that the relationship between a parent and child is a fundamental and constitutionally protected right. Nelson v. Nelson, 1998 OK 10, 954 P.2d 1219, 1226 ("Unquestionably, the relationship of a parent to a child is a constitutionally protected right."); Davis v. Davis, 1985 OK 85, 708 P.2d 1102, 1109 ("The integrity of the family unit and preservation of the parent-child relationship command the highest protection in our society. Intrusion upon the privacy and sanctity of that bond can be justified only upon demonstration of a compelling state concern.") (emphasis in original) (Davis was overruled by statutory amendment to 10 § 1130, in that Davis had held independent counsel for a minor child was required only in state initiated cases regarding termination of parental rights, now privately initiated cases may require the minor to have independent representation as well); Leake v. Grissom, 1980 OK 114, 614 P.2d 1107, 1109-10 ("The right of a parent to the companionship, care, custody and management of his/her child is a basic fundamental right protected by the United

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States and Oklahoma Constitutions.... The parents are free to permit visits by the grandparents, but there is no legal authority for compelling them to do so."); In the Matter of Sherol A.S., 1978 OK 103, 581 P.2d 884, 888 ("The fundamental integrity of the family unit, which has found protection in the Due Process and Equal Protection Clauses of the Fourteenth Amendment and the Ninth Amendment, is subject to intrusion and dismemberment by the state only where a "compelling" State interest arises and protecting the child from harm is the requisite State interest.") (emphasis in original); In the Matter of Fox, 1977 OK 126, 567 P.2d 985 ("[T]he adoptive parents are entitled to exercise all the rights of natural parents. Thus, whether the natural grandmother ... can continue visitation with the children is within the discretion of the children's adoptive parents."); Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15 (1972) ("power of the parent ... may be subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens[,]" otherwise no such limitations may attach.); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978) ("We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected."); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632,639, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974) ("This 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."). Such a fundamental and constitutionally protected right cannot be infringed upon absent a compelling state interest. See, e.g., In the Matter of Sherol A.S., 581 P.2d at 888.

¶11 This Court acknowledged the right of parents to decide for their children issues regarding visitation with grandparents in In the Matter of Fox, 567 P.2d 985, 987 (Okla.1977). This Court stated:

[T]he adoptive parents are entitled to exercise all the rights of natural parents. Thus, whether the natural grandmother ... can continue visitation with the children is within the discretion of the children's adoptive parents.

The statute was changed in response to the Fox decision, but it was the paternal grandparent, within the family, adoption circumstance of the Fox case which was accounted for in the revision of the statute and not the above language. We again acknowledged the parents' authority to oversee grandparent visitation in Leake v. Grissom, 614 P.2d 1107, 1109-10 (Okla.1980) (citing In the Matter of Fox, 567 P.2d 985 (Okla.1977...