Hoff v. Berg

• Decision Date: 18 June 1999
• Docket Number: No. 980208,980208
• Citation: 1999 ND 115,595 N.W.2d 285
• Parties: Jerome G. HOFF and Nicolette A. Hoff, Plaintiffs and Appellants, v. Holly N. BERG, Defendant and Appellee.
• Court: North Dakota Supreme Court

Page 285

595 N.W.2d 285

1999 ND 115

Jerome G. HOFF and Nicolette A. Hoff, Plaintiffs and Appellants, v. Holly N. BERG, Defendant and Appellee.

No. 980208.

Supreme Court of North Dakota.

June 18, 1999.

Timothy J. Wahlin (argued), of Kelsch, Kelsch, Ruff & Kranda, Mandan, for plaintiffs and appellants.

Chad C. Nodland, P.C. (argued), Bismarck, for defendant and appellee.

Jean R. Mullen, Assistant Attorney General, Bismarck, for amicus curiae submitted on brief.

MARING, Justice.

¶1 Jerome and Nicolette Hoff appeal a memorandum decision and an order dismissing their complaint for visitation with their grandchild. We conclude a 1993 amendment to the grandparent visitation statute, N.D.C.C. § 14-09-05.1, is unconstitutional. We affirm in part, reverse in part and remand for further proceedings.

¶2 In 1992, a child was born to Holly Berg and Nathan Hoff, who were not married. Hoffs recognize in their brief that Nathan Hoff was adjudicated the father of the child involved in this case, but has not been formally granted visitation rights. Holly Berg married Dan Berg in 1995. Dissatisfied with the visitation Holly Berg was affording them with their grandchild Jerome and Nicolette Hoff, the parents of Nathan Hoff, sued Holly Berg under N.D.C.C. § 14-09-05.1 for "implementation of a visitation schedule allowing the enforcement of their visitation rights." The trial court ruled N.D.C.C. § 14-09-05.1 is unconstitutional, and dismissed Hoffs' complaint for grandparental visitation. Jerome and Nicolette Hoff appealed.

¶3 Jerome and Nicolette Hoff contend the trial court erred in ruling the grandparent visitation statute is unconstitutional. Holly Berg contends the grandparent visitation statute unconstitutionally infringes upon the fundamental rights of parents to parent their children.

¶4 Ordinarily, parents with lawful custody of their minor children have the right to determine with whom their children shall associate. Hill v. Newman, 509 S.E.2d 226, 230 (N.C.App.1998). A child's parents generally have the right to determine if a relationship with the grandparents, or any other person, is contrary to the child's best interests. Matter of Hegemann, 190 Wis.2d 447, 526 N.W.2d 834, 835 (Wis.App.1994). "Under the common law, parents had the right to select the persons with whom their child would associate, so long as they properly performed their duties to the child," 3 Sandra Morgan Little, Child Custody & Visitation Law and Practice § 16.12 (1999), and grandparents had no legal right to visitation with their grandchildren, King v. King, 828 S.W.2d 630, 632 (Ky.1992). However, all fifty states have passed grandparent visitation legislation. Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181, 1184 n. 3 (1996).

¶5 In 1983, the Legislature enacted a statute providing grandparents and great grandparents may be awarded visitation rights to an unmarried minor. 1983 N.D. Sess. Laws ch. 179, § 1 (later codified as N.D.C.C. § 14-09-05.1) provided in part:

The grandparents and great grandparents of an unmarried minor may be granted reasonable visitation rights to the minor during the period of minority by the district court upon a finding that visitation would be in the best interests of the minor and would not interfere with the parent-child relationship.

Section 14-09-05.1 was amended in 1993 (1993 N.D. Sess. Laws ch. 150, § 1) to provide in part:

The grandparents of an unmarried minor must be granted reasonable visitation rights ... to the minor ... by the district court upon application by the grandparents ... unless a finding is made that visitation is not in the best interests of the minor. Visitation rights of grandparents to an unmarried minor are presumed to be in the best interests of the minor.

Our current grandparent visitation statute "broadly authorizes the courts to compel visitation with unmarried minor grandchildren for grandparents." Peterson v. Peterson, 1997 ND 14, p 13, 559 N.W.2d 826. "As a result of this 1993 amendment, a very serious question exists whether this statute exceeds the constitutionally permissible bounds of state interference in parents' rights to raise their children." Id. at p 14, 559 N.W.2d 826.

¶6 "Some courts have struck down like statutes, concluding court ordered grandparent visitation impermissibly interferes with parents' constitutional rights to rear their children." Peterson, 1997 ND 14, p 15, 559 N.W.2d 826. "Other courts, while recognizing parents' constitutional rights to raise their children without undue state interference, have upheld grandparent visitation statutes that have restraints on the extent of interference." Id. at p 16, 559 N.W.2d 826. "Other courts have deflected constitutional challenges to visitation statutes by narrowly construing them within permissible constitutional parameters." Id. at p 19, 559 N.W.2d 826.

¶7 "The exercise of the power to hold Acts of a legislature invalid is one of the highest functions of the courts." Montana-Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414, 420 (N.D.1967). The power is exercised with restraint, caution, and reluctance. Id. Under N.D. Const. art. VI, § 4, our Court "shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide."

In reviewing the constitutionality of a statute, we will uphold the statute "unless its challenger has demonstrated the constitutional infirmity." Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D.1990). State v. Ertelt, 548 N.W.2d 775, 776 (N.D.1996), explains: "A statute is presumptively correct and valid, enjoying a conclusive presumption of constitutionality unless clearly shown to contravene the state or federal constitution."

Traynor v. Leclerc, 1997 ND 47, p 8, 561 N.W.2d 644.

¶8 The United States Supreme Court has often addressed the constitutional nature of parents' rights in making decisions in the course of raising their children. Natural parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and "[r]ights far more precious ... than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944).

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). See also Washington v. Glucksberg, 521 U.S. 702, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997) (The Due Process Clause "provides heightened protection against government interference with certain fundamental rights and liberty interests" including the right "to direct the education and upbringing of one's children."); M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996) ("Choices about marriage, family life, and the upbringing of children are among associational rights ... sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."); Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Absent a powerful countervailing interest, a parent's desire for and right to the companionship, care, custody and management of his or her children is an important interest that warrants deference and protection); Wisconsin v. Yoder, 406 U.S. 205, 232-3, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("The history and culture of Western civilization reflect a strong tradition of parental concern for the nature and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition."); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (The liberty guaranteed by the Fourteenth Amendment to the United States Constitution includes "the right of the individual to ... marry, establish a home and bring up children, ... and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.").

¶9 As the Minnesota Court of Appeals recently noted, "The United States Supreme Court has repeatedly recognized a general right to freedom from governmental interference in childrearing decisions." Petition of Santoro, 578 N.W.2d 369, 374 (Minn.App.1998). Fundamental rights in the companionship, care custody, and control of children "are considered implicit in the Due Process Clause of the Fourteenth Amendment as a form of 'liberty' that may not be infringed on without due process of law." Id. "In general, deprivations of these fundamental rights are subject to strict judicial scrutiny, meaning that the state bears the burden of proving that such deprivation is narrowly tailored to a compelling state interest." Id.

¶10 The pursuit of happiness guaranteed by N.D. Const. art. I, § 1, includes "the right to enjoy the domestic relations and the privileges of the family and the home ... without restriction or obstruction ... except in so far as may be necessary to secure the equal rights of others," which is protected and insured by the due process clause of N.D. Const. art. I, § 12. State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 919 (1943). This Court has often addressed the constitutional nature of parents' rights in making decisions in the course of raising their children. Parents have a fundamental, natural right...