Ridenour v. Ridenour

• Decision Date: 02 June 1995
• Docket Number: No. 15622,15622
• Citation: 120 N.M. 352,901 P.2d 770,1995 NMCA 72
• Parties: , 64 USLW 2163 Larry RIDENOUR and Hiltrud Ridenour, Petitioners-Appellees, v. Catherine C. RIDENOUR, Respondent-Appellant.
• Court: Court of Appeals of New Mexico

Page 770

901 P.2d 770

120 N.M. 352, 64 USLW 2163

Larry RIDENOUR and Hiltrud Ridenour, Petitioners-Appellees, v. Catherine C. RIDENOUR, Respondent-Appellant.

No. 15622.

Court of Appeals of New Mexico.

June 2, 1995.

Certiorari Denied July 12, 1995.

[120 N.M. 353] Ernesto J. Romero, The Romero Law Firm, Albuquerque, for petitioners-appellees.

Mary L. Vermillion, Albuquerque, for respondent-appellant.

Jon A. Feder, Chairperson, Family Law Section, State Bar of New Mexico, Albuquerque, for amicus curiae.

OPINION

FLORES, Judge.

Mother appeals the trial court's Order on Petition for Grandparental Visitation. The issues raised on appeal are: (1) whether the Grandparent's Visitation Privileges Act (GVA), NMSA 1978, §§ 40-9-1 to -4 (Repl.Pamp.1994), is constitutional as applied herein; and (2) whether the amount of visitation granted is reasonable and supported by substantial evidence. We affirm.

FACTS

Grandparents are the paternal grandparents of Child. Parents (Mother and Father) of Child were divorced in July of 1989. Pursuant to a November 29, 1989, stipulated order, Mother and Father entered into a joint custody arrangement, with Mother providing the primary residence for Child. The stipulated order provided that Child, prior to starting school, had eight days visitation per month with Father--with the proviso that such visitation be in the company of one of the Grandparents. Following the divorce, Mother and Child lived with Grandparents for approximately six months.

Further, after Parents' divorce, Father had very little contact with either Child or Grandparents. After Child started school in September 1992, no new time-sharing plan was discussed or developed by the Parents. Father continued to have very little contact with either Child or Grandparents. After starting school in September 1992, Child spent two to four days a month with Grandparents.

On December 27, 1993, the relationship between Mother and Grandparents deteriorated. Mother accused Grandmother of sexual abuse, and Grandparents accused Mother of abandonment, lack of supervision, substance abuse, and other misbehavior. Mother terminated all contact between Child and Grandparents. Grandparents subsequently filed a Petition for Grandparental Visitation. The trial court entered findings of fact and conclusions of law, and the Order on Petition for Grandparental Visitation from which Mother appeals.

DISCUSSION

The applicable statute, Section 40-9-2(A)-(F) provides in pertinent part that grandparents may file a visitation petition when one of the following threshold requirements has been met: the filing of a judgment of dissolution of marriage, legal separation, or the existence of a parent-child relationship pursuant to the Uniform Parentage Act; one or both parents are deceased; a child under six years resided with a grandparent at least three months; a child over six years resided with a grandparent at least six months; or adoption proceedings are involved.

Once one of the foregoing threshold requirements is met, the trial court shall assess the best interests of the child; the prior interaction between the child and grandparent, the prior interaction and present relationship between the grandparent and each parent of the child, and the time-sharing or visitation arrangements that were in place prior to the filing of the petition. See § 40-9-2(G)(1)-(5).

Issue 1: Whether Enforcement of the GVA Unconstitutionally Infringes on Mother's Fundamental Rights

Mother argues that enforcement of the GVA is an unconstitutional intrusion of Mother's right to raise Child as she sees fit because there has not been any threshold showing of harm to Child requiring the exercise of the State's parens patriae protective mode. Clearly, case law recognizes parents' fundamental constitutional right to raise their children. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982) ("[F]reedom of personal choice in matters of family life is a fundamental liberty interest."); Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir.1993) (right to family integrity embodied in the Fourteenth Amendment); Jaramillo v. Jaramillo, 113 N.M. 57, 64, 823 P.2d 299, 306 (1991) (refers to Santosky and case law which indicates that the "freedom of personal choice includes 'the freedom of a parent and child to maintain, cultivate, and mold their ongoing relationship' ") (quoting Franz v. United States, 707 F.2d 582, 595 (D.C.Cir.1983)); Oldfield v. Benavidez, 116 N.M. 785, 790, 867 P.2d 1167, 1172 (1994) (recognizes the right to family integrity).

However, case law also establishes that parents' right to raise their children is not beyond regulation in the public interest. See Zablocki v. Redhail, 434 U.S. 374, 386, 98 S.Ct. 673, 681, 54 L.Ed.2d 618 (1978) (the state may impose reasonable regulations that do not substantially interfere with parents' fundamental rights); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). New Mexico's appellate courts have consistently recognized the State's parens patriae power to act in the best interests of the children. See, e.g., Oldfield, 116 N.M. at 791, 867 P.2d at 1173 (discusses parens patriae power in context of child neglect and abuse); In re Adoption of Francisco A., 116 N.M. 708, 713, 866 P.2d 1175, 1180 (Ct.App.1993) (refers to cases that rely on the State's parens patriae power and the district court's equitable powers when dealing with children; concludes that foster parents, or someone who has acted in a custodial or parental capacity, may be entitled to visitation following adoption); Rhinehart v. Nowlin, 111 N.M. 319, 325, 805 P.2d 88, 94 (Ct.App.1990) (in some situations it may be in the child's best interests to allow visitation by a stepparent who had not adopted the child following divorce from the child's natural parent). Similarly, out-of-state courts have also recognized a state's parens patriae power to act when merited by a child's best interests. See, e.g., Spradling v. Harris, 13 Kan.App.2d 595, 778 P.2d 365, 367 (1989) (the State's parens patriae power gave it the power to recognize grandparent visitation rights when in the child's best interests); Roberts v. Ward, 126 N.H. 388, 493 A.2d 478, 481 (1985) (the court, as an instrument of the state, may use its parens patriae power to decide whether the welfare of the child warrants court ordered visitation). See generally Annotation, Grandparents' Visitation Rights, 90 A.L.R.3d 222, 232 (1979).

An acknowledgment that parents' right to raise their children is not beyond regulation accommodates and balances the interests of the grandparents, the state, and the children. For example, apart from parents' fundamental rights, case law also recognizes the rights of extended family members. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (in a zoning dispute, the Court recognized a grandmother's place as part of the extended family); see also Herndon v. Tuhey, 857 S.W.2d 203, 209 (Mo.1993) (en banc) ("[G]randparents are members of the extended family whom society has traditionally recognized as playing an important role in the raising of their grandchildren."); Lockhart v. Lockhart, 603 N.E.2d 864, 866 (Ind.Ct.App.1992) (recognizes the competing interests of "the rights of [the] parents to raise their children as they see fit and [the] rights of the grandparents to participate in the lives of their grandchildren"); People ex rel. Sibley v. Sheppard, 54 N.Y.2d 320, 326-27, 445 N.Y.S.2d 420, 423, 429 N.E.2d 1049, 1052 (1981) (under certain circumstances, grandparents should have continuing contacts with children's development if it is in the children's best interests).

In addition, balanced against the parents' right to raise their children are the best interests and rights of the children. New Mexico case law establishes that parents' rights are secondary to the best interests and welfare of the children. See In re Adoption of J.J.B., 119 N.M. 638, ----, 894 P.2d 994, 1008 (1995) [No. 21,864, slip. op. at 28 (N.M. Mar. 30, 1995) ] ("Custody based upon the biological parent-child relationship may be at odds with the best interests of the child. When that happens, the best interests of the child must prevail."); Oldfield, 116 N.M. at 790, 867 P.2d at 1172 ("Although parents have certain rights regarding their children, the children also have certain fundamental rights which often compete with the parents' interests."); In re Adoption of Francisco A., 116 N.M. at 714, 866 P.2d at 1181 ("Although granting visitation to a nonparent does affect a parent's custody rights, ... [i]t is well established in New Mexico that parents do not have absolute rights in their children; rather, parental rights are secondary to the best interests and welfare of the children."); In re Samantha D., 106 N.M. 184, 186, 740 P.2d 1168, 1170 (Ct.App.) (any right of the parents is secondary to the best interests and welfare of the children), cert. denied, 106 N.M. 174, 740 P.2d 1158 (1987); see also Roberts, 493 A.2d at 481 ("The realities of modern living ... demonstrate that the validity of according almost absolute judicial deference to parental rights has become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded"; adopts the standard of the welfare and best interests of the child above everything).

Case law also recognizes the state's compelling interests in the welfare of its children. See Santosky, 455 U.S. at 766, 102 S.Ct. at 1401-02 (the state has parens patriae interest in the welfare of children); Oldfield, 116 N.M. at 791, 867 P.2d at 1173 (the state has a compelling interest in the health, education, and welfare of children); Sketo v. Brown, 559 So.2d 381, 382 (Fla.Dist.Ct.App.1990) ("The state has a sufficiently compelling interest in the welfare of children that it can provide for the continuation of relations between...