Jones v. Jones

Decision Date11 July 2013
Docket NumberNo. 20110998–CA.,20110998–CA.
Citation738 Utah Adv. Rep. 46,307 P.3d 598
PartiesEllie JONES and Tracy Jones, Petitioners and Appellees, v. Sharon JONES, Respondent and Appellant.
CourtUtah Court of Appeals


Unconstitutional as Applied

West's U.C.A. § 30–5–2Anthony C. Kaye, Angela W. Adams, and Emily Wegener, for Appellant.

Bryant J. McConkie, for Appellees.

Judge J. Frederic Voros, Jr. authored this Opinion, in which Judge Stephen L. Roth concurred. Judge James Z. Davis dissented, with opinion.


VOROS, Judge:

¶ 1 Sharon Jones (Mother) appeals the trial court's order awarding visitation with Mother's daughter (Child) to Child's paternal grandparents, Ellie and Tracy Jones (Grandparents). Mother claims a fundamental constitutional right in the control of Child and contends that Utah's Grandparent Visitation Statute is not narrowly tailored to serve a compelling state interest as applied to her under the circumstances of this case. We agree and reverse.


¶ 2 Mother married Tracy Jones Jr. (Father) in 2006. Child was born in November 2007, and Mother and Father separated in January 2009. Mother and Father shared equal custody of Child following their separation. Between January and March 2009, Father lived with Grandparents, who helped care for Child while she was in Father's custody. After Father moved out of Grandparents' home, Ellie Jones continued to visit him two to three times a week. Father died in May 2009, when Child was approximately eighteen months old. Mother continued to facilitate contact between Child and Grandparents during the months immediately following Father's death. On July 24, 2009, Grandparents took Child to a baseball game and brought her home after 10:30 p.m. Although Grandparents believed that Mother had agreed for them to bring Child home late, Mother later expressed concern about the late hour.

¶ 3 Following the baseball game, Mother denied several of Grandparents' requests to spend time with Child and also requested that Grandparents not call Child on weeknights. Grandparents then wrote Mother an email requesting visits with Child two full weekends per month, visits on holidays and birthdays, an extended visit each summer, and two phone calls per week. When Mother did not respond, Grandparents threatened to sue for grandparent visitation. Mother then responded with an email outlining concerns she had about permitting Child to continue visiting Grandparents and informing them that she intended to limit their contact with Child to one phone call per month and one visit every other month for a few hours in the presence of Mother or one of Mother's family members. Grandparents responded that they would not submit to being supervised and that they intended to initiate court proceedings.

¶ 4 On September 24, 2009, Grandparents filed a Verified Petition to Establish Grandparent Visitation Rights pursuant to the Grandparent Visitation Statute, seeUtah Code Ann. § 30–5–2 (LexisNexis 2007), requesting visitation comparable to that afforded to noncustodial parents under a separate statutory provision, see id. § 30–3–35.5(e) (Supp.2012).1 Their petition alleged the existence of factors tending to rebut the statutory presumption “that a parent's decision with regard to grandparent visitation is in the grandchild's best interests” (the parental presumption). See id. § 30–5–2(2) (2007); see also Troxel v. Granville, 530 U.S. 57, 68, 70, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (holding that due process requires that a fit parent's decision regarding grandparent visitation be given “special weight”).

¶ 5 Grandparents did not see Child again until July 2011, when they saw her as part of a Grandparent Time Evaluation. By that time, Child was approximately three and a half years old. At the evaluation, Child “exhibited no distress being with [Grandparents]; recognized them; played board games and sang a song; and called Grandparents ‘Nana and Papa.’ The evaluator “concluded that [Grandparents] were appropriate, fit, and proper to have visitation with [Child].” She recommended that Grandparents be awarded phone calls with Child and visitation one day per month, starting with three hours per visit and gradually increasing to overnight visits as Child gets older.

¶ 6 A trial was held on October 12 and 13, 2011. The trial court issued its Findings of Fact and Conclusions of Law on December 21, 2011, in which it considered the statutory factors and concluded that Grandparents had rebutted the parental presumption by clear and convincing evidence. Specifically, it concluded that Grandparents were “fit and proper persons to have visitation with [Child],” that [v]isitation with [Child] was denied and unreasonably limited” by Mother, that Grandparents “had a substantial relationship with [Child] until the denial of visitation and the denial has likely caused harm to [Child],” that Father had died, and that [v]isitation is in the best interest of [Child].” As a result of its findings, the trial court ordered grandparent visitation amounting to approximately thirty-six hours per month. Mother appeals.


¶ 7 The central issue on appeal is Mother's challenge to the constitutionality of the Grandparent Visitation Statute, as applied under the circumstances of this case. “Constitutional challenges to statutes present questions of law, which we review for correctness.” State v. Green, 2004 UT 76, ¶ 42, 99 P.3d 820 (citation and internal quotation marks omitted). Nevertheless, legislative enactments are presumed to be constitutional, and those who challenge a statute or ordinance as unconstitutional bear the burden of demonstrating its unconstitutionality.” Id. (citation and internal quotation marks omitted).

As Applied to Mother, the Grandparent Visitation Statute Is Not Narrowly Tailored To Serve a Compelling State Interest.

¶ 8 The Grandparent Visitation Statute allows a grandparent to petition the court for grandparent-grandchild visitation over the objection of the grandchild's parents. The statute acknowledges “a rebuttable presumption that a parent's decision with regard to grandparent visitation is in the grandchild's best interests.” Utah Code Ann. § 30–5–2(2). However, the statute allows the court to override the parent's decision when the parental presumption has been rebutted. Id. The statute identifies several factors relevant to this analysis:

[T]he court may override the parent's decision and grant the petitioner reasonable rights of visitation if the court finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant, such as whether:

(a) the petitioner is a fit and proper person to have visitation with the grandchild;

(b) visitation with the grandchild has been denied or unreasonably limited;

(c) the parent is unfit or incompetent;

(d) the petitioner has acted as the grandchild's custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;

(e) the petitioner's child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;

(f) the petitioner's child, who is a parent of the grandchild, has been missing for an extended period of time; or

(g) visitation is in the best interest of the grandchild.

Id. Grandparents seeking court-ordered visitation must overcome the parental presumption by clear and convincing evidence. Uzelac v. Thurgood ( In re Estate of S.T.T.), 2006 UT 46, ¶ 28, 144 P.3d 1083.

A. Because a Parent's Right Is Fundamental, Strict Scrutiny Applies.

¶ 9 Mother contends on appeal that any intrusion into a parent's constitutional liberty interest must be narrowly tailored to achieve a compelling state interest. She argues that “constitutional law requires a compelling state interest before visitation may be ordered, and no fact findings or trial evidence identify a compelling interest here.” We agree.

¶ 10 [T]he interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534–35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). Parents have a fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 66, 120 S.Ct. 2054 (citing Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)).

¶ 11 The Utah Constitution similarly protects this fundamental right. “In a long line of precedent, [the Utah Supreme Court] has recognized parental rights as a fundamental component of liberty protected by article I, section 7 [of the Utah Constitution].” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (citing Mill v. Brown, 31 Utah 473, 88 P. 609, 613 (1907)). Indeed, as our Legislature recently recognized, [t]he right of a fit, competent parent to raise the parent's child without undue government interference is a fundamental liberty interest that has long been protected by the laws and Constitution of this state and of the United States, and is a fundamental public policy of this state.” Utah Code Ann. § 78A–6–503(9)...

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