Michael v. Hertzler, 94-123

CourtUnited States State Supreme Court of Wyoming
Citation900 P.2d 1144
Docket NumberNo. 94-123,94-123
PartiesSusan Kay MICHAEL and Chris Michael, Appellants (Plaintiffs), and Wyoming Attorney General, Appellant, v. Dean B. HERTZLER, Appellee (Defendant).
Decision Date04 August 1995

Donald J. Sullivan, Cheyenne, for appellants Michael.

Joseph B. Meyer, Atty. Gen.; Richard Dixon, Sr. Asst. Atty. Gen., Cheyenne, for appellant Wyoming Atty. Gen.

James A. Eddington of Jones, Eddington & Weaver, Torrington, for appellee.


THOMAS, Justice.

The only issue in this case is the constitutionality of WYO.STAT. § 20-7-101 (1994), which provides for an original action by a grandparent to establish reasonable visitation rights to a minor grandchild. Susan Kay Michael and Chris Michael (the Michaels) instituted such an action against Dean B. Hertzler (Hertzler) who was the custodian of the grandchildren. They sought to establish the right of visitation with grandchildren who had been adopted by Hertzler and the Michaels' daughter. Hertzler attacked The Michaels, in their Brief of Appellants, set forth the following issue:

                the constitutionality of the statute, and the trial court ruled the statute "is unconstitutional under the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Wyoming Constitution."   We hold parental rights are regarded as fundamental rights in Wyoming;  the constitutionality of the statute is to be tested under the strict scrutiny standard;  the State of Wyoming (State) does have a compelling interest which justifies the statute;  and the statute is constitutional.  We reverse and remand this case for further proceedings in accordance with this opinion

The sole issue on appeal is whether W.S. 20-7-101(a) violates the due process requirements of the United States Constitution and the Wyoming State Constitution.

In its Brief of the State of Wyoming as Appellant, the State articulates these issues:

I. Does W.S. 1-20-107 [sic] work to create substantive rights in grandparents which then impinge upon the rights of parents to raise their children?

II. Who will serve to protect the rights of children when unfettered exercise of parental rights impinge upon the best interest of children?

III. Does collapse of the nuclear family through death or judicial intervention constitute harm to the child sufficient to warrant invocation of the state's parens patriae powers of protection?

In the Brief of Appellee, filed by Hertzler, the stated issue is:

1. Does W.S. § 20-7-101 violate the Due Process Clause of the United States Constitution and the State of Wyoming Constitution?

The Michaels have a daughter, Pam, who is the natural daughter of Mrs. Michael and the stepdaughter of Mr. Michael. During their marriage, Pam and Hertzler adopted a boy, born February 22, 1986, and a girl, born June 24, 1990. At the time of the respective adoptions, each child was approximately six months old. In 1991, Pam was divorced from Hertzler and had primary custody of the children. During that situation, the Michaels enjoyed ample visitation with the grandchildren. Subsequently, Hertzler was made the primary custodian of the children by mutual agreement with Pam. After the change of custody and following Hertzler's remarriage, the relationship between the Michaels and Hertzler deteriorated to the point Hertzler refused to allow the two children to visit the grandparents.

The Michaels then filed an action seeking to have their rights declared under WYO.STAT. § 20-7-101, which provides:

(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.

(c) No action to establish visitation rights may be brought by a grandparent under subsection (a) of this section if the minor grandchild has been adopted and neither adopting parent is a natural parent of the child.

(d) In any action or proceeding in which visitation rights have been granted to a grandparent under this section, the court may for good cause upon petition of the Hertzler asserted the unconstitutionality of this statute in defending the action.

person having custody or who is the guardian of the child, revoke or amend the visitation rights granted to the grandparent.

After a hearing, the trial court ruled that WYO.STAT. § 20-7-101(c) provided grandparents of adopted grandchildren, like the Michaels, standing to petition the court for grandparental visitation rights. The trial court ruled, however, that "W.S. § 20-7-101(a) is unconstitutional under the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution because, without a preliminary finding of harm to the children, or unfitness of the parent, the State does not have a compelling interest in ordering visitation." This ruling in the Order on Declaratory Judgment was supported by a twelve-page opinion letter in which the trial court reasoned primarily by analogy. The Michaels and the State have appealed from that order and decision.

As a threshold question, we address the contention of the Michaels that WYO.STAT. § 20-7-101 enjoys a presumption of constitutionality which requires Hertzler to assume the burden of demonstrating it is unconstitutional. Recently, we addressed the burden of proof in cases involving constitutional challenges. We said that, normally:

[O]ne who alleges unconstitutionality bears a heavy burden and must clearly and exactly show the unconstitutionality beyond any reasonable doubt. However, that rule does not apply where a citizen's fundamental constitutional right, such as free speech, is involved. The strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the ordinance, and this Court has a duty to declare legislative enactments invalid if they transgress that constitutional provision. The rule we apply under the circumstances of this case is:

Where rights, privileges, and immunities of the citizen are involved, the usual strong presumption in favor of constitutionality does not apply, and this rule is applicable to First Amendment rights. This is true in situations involving the right of freedom of expression or thought, or of speech, or association, or of the press, or of religion. Under some authority, the usual presumption in favor of constitutionality is merely weaker where the statute arguably inhibits fundamental rights.

Miller v. City of Laramie, 880 P.2d 594, 597 (Wyo.1994) (citations omitted).

The concept articulated in Miller places the burden of proof on the State and the Michaels as the parties asserting the constitutionality of the statute.

We next turn to the standard under which the constitutionality of the statute is to be analyzed. If a statute reaches ordinary interests in economic and social welfare, the determination to be made is whether the statute is rationally related to a legitimate state object. If, on the other hand, the statute reaches a fundamental interest, the court is to employ the test of strict scrutiny in making its determination as to whether the enactment is essential to achieve a compelling state interest. White v. State, 784 P.2d 1313 (Wyo.1989).

The common law rule was that grandparents had no right to visitation of their grandchildren if it was forbidden by the parents. Matter of Adoption of RDS, 787 P.2d 968 (Wyo.1990). The rule of common law deferred to the right of the parents to make decisions regarding their children's associations, and it recognized government is not equipped nor intended to dictate social interaction among families. In 1977, our legislature adopted WYO.STAT. § 20-2-113(c), which permitted a petition by a grandparent for visitation in a divorce or separation proceeding upon a showing that the visitation would be in the best interest of the child. Our construction of that statute has resulted in a rule that the present and future welfare of the children is of paramount consideration. Nation v. Nation, 715 P.2d 198 (Wyo.1986). It is also clear that WYO.STAT. § 20-2-113(c) does not afford a right of visitation, but simply confers standing to seek a hearing. Matter of Adoption of RDS. This appears to be consistent with other grandparental visitation In 1991, the legislature created a proceeding separate from a divorce or separation proceeding in which grandparents could seek rights of visitation. The predecessor of WYO.STAT. § 20-7-101 was adopted, causing Wyoming to become one of fifty states adopting such a statute. See Appendix A attached to this opinion. We note the statute in Wyoming specifically provides that "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." WYO.STAT. § 20-7-101(b).

statutes that are said not to presume to create substantive rights. Doris...

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  • Roth v. Weston
    • United States
    • Connecticut Supreme Court
    • January 29, 2002
    ...1276 (Fla. 1996) (answering question, whether state's interest in visitation is compelling, in negative); but see Michael v. Hertzler, 900 P.2d 1144, 1151 (Wyo. 1995) (stating that "compelling state interest exists in maintaining the right of association of grandparents and grandchildren").......
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    • Wyoming Supreme Court
    • April 6, 2022
    ...is heavy in that appellant must clearly and exactly show the unconstitutionality beyond any reasonable doubt. Michael v. Hertzler , 900 P.2d 1144, 1146 (Wyo. 1995) (quoting Miller v. City of Laramie , 880 P.2d 594, 597 (Wyo. 1994) ). "However, ‘that rule does not apply where a citizen's fun......
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