Ward v. Ward

Citation537 A.2d 1063
PartiesDaniel and Barbara WARD, Petitioners, v. Russell and Edna WARD, Respondents. . Submitted:
Decision Date08 April 1986
CourtFamily Court of Delaware

Peter B. Jones of Hudson, Jones, Jaywork & Williams, Georgetown, for petitioners.

Thomas J. Stumpf of Thomas J. Stumpf, P.A., Georgetown, for respondents.

ROBINSON, Judge.

Before the Court is a challenge to the constitutionality of the last sentence of 10 Del.C., § 950(7) as amended in 1986 which deals with visitation between grandparents and their grandchildren.

10 Del.C., § 950(7) as originally enacted in 1976 authorized the Family Court of the State of Delaware, upon petition, to grant grandparents reasonable visitation rights with their grandchildren. The Court could order such visitation "regardless of marital status of the parents of the child or the relationship of the grandparents to the person having custody of the child."

65 Del.Laws c. 243 (hereinafter referred to as § 950(7), as amended) which took effect on February 12, 1986, amended this section by adding the following proviso:

Provided, however, that when the natural or adoptive parents of the child are cohabiting as husband and wife, grandparent visitation shall not be granted over both parents' objection.

In other words, the Court is prohibited from granting visitation to grandparents whenever both parents, who are living together, signify their objections to such visitation.

In May 1984 Russell and Edna Ward (petitioners) petitioned this Court under 10 Del.C., § 950(7) for visitation with their grandchildren, Kathy L. Ward, born August 12, 1978 and Daniel Ward, Jr., born November 14, 1979. The children's parents are Daniel and Barbara Ward (respondents) and the case is somewhat unusual in that Daniel Ward is the son of Russell Ward and Barbara Ward is the daughter of Edna Ward. Thus, the elder Wards are both paternal and maternal grandparents of the children.

Mediation, normally required by the Rules of this Court in visitation matters, was by-passed and a hearing was held before Judge William Swain Lee on January 9, 1985. On February 12, 1985 Judge Lee issued an opinion and order in which he found that visitation with their grandparents was in the best interest of the Ward children. The Court recognized that "there is a high degree of animosity between parents and grandparents" and that Daniel and Barbara Ward blamed the elder Wards for the failure of Daniel Ward's business and for the loss of their home, with the resulting impact on the children. Nevertheless, the Court found that the grandparents and grandchildren had enjoyed and continued to enjoy an extremely close relationship and that the grandchildren wished to visit with their grandparents. The Court ordered visitation one weekend per month. Ward v. Ward, Del.Fam., Sussex Co. No. 41,094, Lee, J. (Feb. 2, 1985).

Daniel and Barbara Ward appealed to the Superior Court of the State of Delaware in and for Sussex County. 1 Their application for a stay of the Family Court order pending appeal was denied. While the matter was on appeal, § 950(7) was amended as set forth above. On March 5, 1986 the Superior Court ruled that "the issue presented to this Court becomes, for obvious reasons, moot" and remanded the matter to Family Court. Daniel and Barbara Ward then filed an Emergency Motion for Summary Judgment and for Stay of Visitation. The emergency application was denied and the Court advised the respondents to proceed by petition to modify or terminate visitation. 2

Daniel and Barbara Ward then petitioned the Court to modify visitation, and the petition was scheduled for hearing on April 8, 1986. Russell and Edna Ward moved to dismiss both the modification petition and the earlier motion for summary judgment, asserting that § 950(7), as amended, is unconstitutional.

The parties stipulated to certain facts pertinent to the modification petition and established a briefing schedule with respect to the motion to dismiss. The Court stayed visitation pending decision on the petition and motion. This, then, is the decision of the Court on the Motion to Dismiss.

Initially I must consider whether a Judge of the Family Court of the State of Delaware has authority to rule on a constitutional question.

The Delaware Constitution, Article IV, Section 1, provides that "[t]he judicial power of this State shall be vested in a Supreme Court, a Superior Court, a Court of Chancery, an Orphans' Court, a Register's Court ... and such other courts as the General Assembly ... shall have by law established prior to the time this amended Article IV of this Constitution becomes effective or shall from time to time by law establish after such time." (Emphasis supplied.)

The Family Court of the State of Delaware was established by the General Assembly in 1971. 58 Del. Laws c. 114, 10 Del.C., Ch. 9.

In Bailey v. Railroad Co., Del.Ct. of Err. & App., 4 Harrington Del. Rept. 389 (1846), the Supreme Court construed the grant of "judicial power" contained in Article IV, Section 1 as including "the right and authority of judges, to determine and decide every question of law, necessarily arising in the progress of a trial, of which the court has jurisdiction from the nature of the cause of action ..." Id. at 414. This includes the power to address constitutional issues that arise, for "[they are] question[s] of law, to be decided by the court having jurisdiction of the case." Id.

No one will contend, I presume, that if the Legislature should pass an unconstitutional act, the people of the State would be bound to obey it; and yet, if the power does not reside in the courts to pronounce it void, as it would be, it is difficult to conceive how the people could resist the wrong and re-assert the majesty of the Constitution, without resort to physical force, in case the Legislature should refuse to repeal it. Id.

It follows, then, that the Family Court, having been duly established by the General Assembly, has the power, if not the duty, to address the constitutional issues presented in this case. See also : In re J.K., Del.Fam., No. A-1011, Warder, J. (Oct. 26, 1976) rev'd on other grounds State v. J.K., Del.Supr., 383 A.2d 283 (1977); In re E.W.D., Del.Fam., No. KC-76-68-0068-D, Kelsey, J. (May 12, 1977).

The power of judicial review should be exercised cautiously. According to the Delaware Supreme Court, legislative enactments are cloaked with a presumption of constitutionality, Kreisher v. State, Del.Supr., 319 A.2d 31 (1973), and a statute will not be declared void unless its invalidity is established beyond a reasonable doubt by the one challenging it. Atlantic Richfield Co. v. Tribbitt, Del.Ch., 399 A.2d 535 (1977). Moreover, all reasonable doubt must be resolved in favor of the statute's constitutionality, and if a constitutional construction is possible, it should be followed. Atlantis I Condominiums v. Bryson, Del.Supr., 403 A.2d 711 (1979). I approach my task mindful of those admonitions and with deference to the authority of the General Assembly as arbiter of the state's policies with regard to families and family relationships.

Petitioners assert that § 950(7), as amended, is unconstitutional in three respects: First, that it deprives them of "due process of law"; second, that it denies them the "equal protection of the law"; and third, that the legislation violates the "separation of powers" principle of the Delaware Constitution. The constitutional guarantees of due process and equal protection are contained in the Fourteenth Amendment to the United States Constitution. Due process is also protected under Article I, Sections 7 and 9 of the Delaware Constitution of 1897.

1. The "due process" argument:

Russell and Edna Ward first contend that 10 Del.C., § 950(7), as amended, deprives them of due process of law protected by the Fourteenth Amendment to the United States Constitution which reads, in pertinent part, as follows:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

They argue that they have an important private right in a relationship with their grandchildren, and that visitation is crucial to maintaining this relationship. Under § 950(7), as amended, however, such visitation is barred if the children's parents object, without the grandparents being given an opportunity to have the matter heard and determined by a Court. Thus, they claim they are being denied an important private right without fair procedures being followed--without "due process of law".

In order to invoke the protection of the due process clause a party must claim an interest which is one of constitutional dimensions. In other words, the right which they assert in this case, the right to associate with their grandchildren through visitation, must be one which is generally recognized as a right protected by the Constitution. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). As the United States Supreme Court stated in Roth:

But to determine whether due process requirements apply in the first place we must look not to the "weight" but to the nature of the interest at stake ... We must see if the interest is within the Fourteenth Amendment's protection of life and property. 408 U.S. at 570-71, 92 S.Ct. at 2705, 2706.

Is, then, the right of a grandparent to enjoy a relationship with a grandchild a right which has been generally recognized as protected by the Fourteenth Amendment?

The "liberty interest" guaranteed by the Amendment has not been defined with exactitude, but it includes:

[T]he right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to...

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