Jones v. Jones

Decision Date16 September 2015
Docket NumberNo. 20130815.,20130815.
Citation359 P.3d 603,2015 UT 84
CourtUtah Supreme Court
PartiesTracy JONES and Ellie Jones, Petitioners, v. Sharon JONES, Respondent.

Bryant J. McConkie, Adam Wentz, Salt Lake City, for petitioners.

Paul R.Q. Wolfson, Shirley Woodward, Sonya L. Lebsack, Washington, D.C., Anthony C. Kaye, Emily Wegener, Salt Lake City, for respondent.

Associate Chief Justice LEE authored the opinion of the Court, in which Chief Justice DURRANT, Justice HIMONAS, and Judge FAUST joined. Having recused herself, Justice DURHAM does not participate herein; District Court Judge ROBERT P. FAUST sat. Justice PARRISH sat for oral argument. Due to her resignation from this court, however, she did not participate herein.

On Certiorari to the Utah Court of Appeals

Associate Chief Justice LEE, opinion of the Court:

¶ 1 In this case we consider the legal basis for an order of visitation for a child's grandparents, issued over the wishes of the parent. The order in question was issued after a trial under the terms of Utah Code section 30–5–2. Our court of appeals invalidated the order as a violation of the custodial parent's constitutional right to the custody, care, and control of her child. Jones v. Jones, 2013 UT App 174, ¶¶ 32–35, 307 P.3d 598.

¶ 2 We affirm the judgment of the court of appeals. In so doing, we hold that a visitation order under section 30–5–2 is subject to strict scrutiny review, requiring proof that a grandparent visitation order is narrowly tailored to advance a compelling governmental interest. Under the operative statute as applied by the district court in this case, we find only one interest that even arguably qualifies as compelling—a showing of “harm” resulting from the loss of a “substantial relationship” with a grandparent, where the grandparent “acted as the grandchild's custodian or caregiver.” Utah Code 30–5–2(2)(d). And finding no such proof on the record here, we hold that the grandparents failed to establish a legally sufficient basis for an order of visitation.


¶ 3 In November of 2007, I.J. was born to Sharon Jones1 and Tracy Jones Jr., her then-husband. Tracy's parents, Tracy Sr. and Ellie Jones, lived more than an hour away. They visited their granddaughter and her parents about once or twice a month. Occasionally they also babysat.

¶ 4 Sharon and Tracy Jr. had a troubled marriage. Evidence in the record indicates that Tracy Jr. struggled with addiction and was physically and emotionally abusive. The couple divorced when I.J. was around fourteen months old. Custody was split equally between them at that time.

¶ 5 For six weeks, beginning in late January of 2009, Tracy Jr. moved in with his parents. During this time, I.J., who was less than eighteen months old, spent several days a week in her grandparents' home with Tracy Jr. And when Tracy Sr. and Ellie were not at their full-time jobs, they took part in the day-to-day care of I.J.—changing diapers, feeding, etc. In early May of that same year, Tracy Jr. died of a heroin overdose while I.J. was in his custody. Once authorities discovered Tracy Jr.'s body—and I.J., who was alone in her deceased father's care—they returned I.J. to her mother's custody.

¶ 6 From this point on, I.J.'s grandparents and mother began to disagree over visitation. Tracy Sr. and Ellie requested overnight visits with their granddaughter, but Sharon felt that I.J. was not ready. She told the grandparents that I.J. was “struggling” to understand what had happened to her father, and that she thought it was best that she try to “get [I.J.] back into a routine” before allowing the grandparents to take I.J. for weekend or overnight trips. Instead Sharon proposed that the grandparents call twice a week and that they plan sporadic “day visits.” The grandparents were not happy with this arrangement. They asked to “have every other weekend with [I.J.] (Friday night to Sunday night).” But for a time they respected Sharon's wishes and accordingly stuck with phone calls and occasional day visits.

¶ 7 In time, however, the grandparents thought better of this arrangement. They renewed their request for an overnight weekend visit. When Sharon denied this request (explaining that she had scheduled time with other family members on the weekend in question), the grandparents accused her of “stripping” them of their relationship with I.J. They then demanded the right to take I.J. for two weekends a month from Friday through Sunday, to have a summer vacation with I.J. each year, and to have a right of visitation on all major holidays and on I.J.'s birthday. When Sharon did not reply, the grandparents followed up with an email threatening to sue for a right of visitation. Sharon then made a counter-offer—of visitation on one Saturday every other month, with the condition that she or another family member be present during the visit. The grandparents responded that they would “see [her] in court.” They then filed a petition for visitation under Utah Code section 30–5–2.

¶ 8 In their visitation petition, the grandparents sought unsupervised visitation with I.J. for two weekends a month (from Friday evening through Sunday evening), two full consecutive weeks during the summer for a vacation, and half of all major holidays and I.J.'s birthdays. In evaluating the basis for this request, the grandparents' expert, Dr. Heather Walker, observed I.J.'s interactions with her grandparents to assess whether (a) they were “fit and proper persons to have visitation”; (b) visitation “ha[d] been denied” to them; (c) they had “acted as a grandchild's custodian or caregiver”; (d) visitation was “in the best interest of the grandchild,” based on an assessment of the “nature and extent and degree of the child's natural attachment to her grandparents,” how well they interacted with each other, “the child's preferences,” and how contact with the grandparents might “affect the child's ability to deal with the death and loss of her father.” After reading some affidavits, spending twenty minutes or so with Sharon, and observing I.J.'s interactions with her grandparents for about an hour, Walker prepared an expert report. She concluded that I.J. “should have time with her grandparents” for “her emotional well[-]being and her best interest.”

¶ 9 A two-day trial was then held on the visitation petition. Walker testified that I.J. was perfectly comfortable in the presence of her grandparents and that their relationship appeared to be “positive.” She then began testifying, over Sharon's counsel's objection, to something nowhere explicitly contained in her report—that it would be “harmful” to I.J. to have her relationship with her grandparents severed or too limited. Specifically, Walker expressed concerns that I.J. not knowing her deceased father's parents could potentially be “harm[ful] to her in that she might “overidentify” with her deceased father and “put him on a pedestal” and thereby commit the same kinds of life mistakes he had made because she would not be “allowed to grieve and realize[ ] that there were good and bad [things] about [her] father.” Walker further expressed “concern” about I.J. living in Price, Utah, because of its small size and the associated chance that I.J. might run into her grandparents. In her view, if that happened and I.J. were suddenly “whisked away,” it “would be kind of strange” for her because she might remember her grandparents but not understand why she couldn't speak with them. She further concluded that [i]t could be kind of [a] potentially ... huge problem” in the future when I.J. started school in Price because people at the school might know her grandparents (on account of the small community) and therefore those people might “start making comments to her,” thus resulting in some species of harm.

¶ 10 On cross-examination, Sharon's counsel challenged the basis of Walker's opinions. When asked whether there was “any research that suggests that a[n] [eighteen-month old] child's memory of a deceased father ... has any developmental impact on the child's ability to grow up and be a well-adjusted human being,” Walker responded “no.” When asked whether she could “conclude that a child has a substantial relationship with a grandparent if it's not clear to you whether or not they are attached to that grandparent?,” Walker responded as follows: “You can if the child is older [than I.J. was]. It's probably easier to determine the substantiality of the relationship [in that circumstance].” But on account of I.J.'s age (being younger than two), Walker simply had “to go by what people have said” with respect to there being a substantial relationship between I.J. and Petitioners. She then admitted twice that she “could not conclude that there was any attachment between [I.J.] and the [Petitioners].”

¶ 11 Sharon's counsel also questioned Walker's conception of what counts as “harm” under the statute. When Walker insisted that visitation was appropriate because it “would be in [I.J.'s] best interest,” Sharon's counsel challenged the basis for any allegation of “harm” to I.J. Counsel suggested that Walker's testimony was really “dealing more with [her] evaluation of ... [I.J.'s] best interests.” In response, Walker indicated that was “correct,” but suggested that “lack of best interest would be harm.” Counsel then pressed Walker further, asking whether she thought there was any “difference between what's in the best interest of a child and whether or not something will cause them emotional harm.” Walker said there was a difference but that “what is in a child's best interest would be for them to not have the possibility of emotional harm,” and that in her opinion there was such a possibility here based on her earlier testimony. Based on her observations, Walker recommended one daytime visit per month for somewhere between three to seven hours per visit. And, in Walker's opinion, overnight visits might be appropriate in a few years.

¶ 12 Sharon put on her own expert, Dr. Monica Christy. Christy similarly...

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