More Thoughts on Grandparents’ Visitation Post Jones v. Jones - Melvin
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More Thoughts on Grandparents’ Visitation Post Jones v. Jones

by Melvin Cook

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Thurgood v. Uzelac

On September 24, 2015 I posted on the fairly recent Utah Supreme Court case of Jones v. Jones, 2015 UT 84, which further clarifies what rights grandparents may have to seek court ordered visitation rights with their grandchild.

As a background matter, fifteen years ago the United States Supreme Court case of Troxel v. Granville 530 U.S. 57 (2000), limited grandparents’ visitation rights by striking down a Washington state statute that was overly broad. The Supreme Court upheld parents’ fundamental rights to direct the upbringing and care of their children. Troxel, however, did not articulate the specific standard courts should use in determining the constitutionality of grandparents’ visitation statutes going forward. This left some amount of guesswork for state legislatures and courts in complying with the decision.

Following this case, Utah modified its grandparents’ visitation statute to provide that a parent’s decision with respect to grandparent’s visitation is presumed to be in the child’s best interest, unless this decision can be rebutted by certain statutory factors.

These statutory factors that a grandparent needed to prove were found at Utah Code Section 30-5-2 as follows:

(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.

Subsequently, the Utah Court of Appeals case of Jones v. Jones, UT App 174, overruled a trial court’s order for grandparents visitation rights, holding that as to that particular parent, Utah’s statute was not narrowly tailored to serve a compelling government interest.

This gave a little more clarity on the standard of scrutiny courts should apply in grandparents’ visitation cases. However, it still left some ambiguity because the Court’s ruling was that the statue was unconstitutional as applied to that particular parent.

The same case made its way to the Utah Supreme Court in of Jones v. Jones, 2015 UT 84. There, the Utah Supreme Court clarified the standard that will be used in determining whether a grandparent’s visitation order is constitutional. The standard is that of strict scrutiny.

In other words, a Court’s order granting grandparent’s visitation rights must be narrowly tailored to serve a compelling government interest.

The Court further clarified that the only statutory factor that could be construed to be a compelling governmental interest in Utah’s grandparent’s visitation statue was the (d) criteria mentioned above; namely, harm to the child from a loss of the relationship with his grandparents.

Moreover, this harm must be substantial. This means there must have been a substantial relationship between the child and grandparent, above and beyond the normal loving grandchild/grandparent relationship. The grandparent must have acted in the capacity of a caretaker or caregiver. The grandparent must prove that loss of the relationship would be harmful to the child.

This is a high burden of proof. The Court noted the case of Thurgood v. Uzelac, 2003 UT App 439 in which a grandparent had been awarded visitation rights. But the Court noted that in that case, the grandparent had “taken care of the child on a daily basis throughout most of the child’s first four years of life.” Thus, the child had formed an emotional bond with the grandparent much like a parent-child bond.

Even in that case, however, the trial court awarded temporary custody to the father, stating in a minute entry that “the natural father has absolute parental rights.”

The Thurgoods were divorced in 1994 and were the biological parents of S.T.T. Ms. Thurgood was the custodial parent up until the time of her death on April, 2000. At that time, her mother began taking care of the child.

The grandmother filed a petition seeking a court order to appoint her as the child’s guardian and conservator. When the father found out about his ex-wife’s death, he filed a petition for appointment as the child’s guardian and conservator.

Although the Court granted the grandmother’s temporary restraining order on June 16, 2000 granting her immediate custody of the child, a short time later the court awarded temporary custody to the father, citing his “absolute parental rights.” The court found that the rebuttable presumption awarding custody of a child to the biological parent had not been rebutted. However, the Court opined that “there ought to be some future visitation” between the child and grandmother with the father’s approval.

The parties failed to follow the Court’s recommendation and Ms. Uzelac subsequently filed an amended petition seeking temporary visitation. The Court granted incrementally increasing visitation for Ms. Uzelac.

The father then took the child to Australia for four weeks. When he returned, he discovered that his attorney had withdrawn from the case and that the Court had ordered grandparent visitation once a month until the trial date.

Later in the year, Ms. Uzelac filed an Order to Show Cause for contempt against the father, based on his ongoing failure to allow visitation with the child.

The trial court found the father in contempt and sentenced him to sixty days in jail. But the court held that the father could purge his contempt by delivering the child to the grandmother every other weekend until the time of trial.

On appeal the Utah Court of Appeals held that the trial court had abused its discretion by sentencing the father to sixty days in jail for contempt, when the statute only allowed a maximum of thirty days for contempt.

The Court further found the trial court had abused its discretion by conditioning the father’s purging of contempt on his delivering the child to the grandmother for visitation twice a month indefinitely until the trial date, when the statue contemplated make up parent-time in the same amount as denied parent-time.

I find the case interesting on several levels. But two points seem especially salient to me in light of Jones v Jones, namely:

1) It shows a clear preference for the custody rights of biological parents over all others, even where a grandparent has acted as the child’s caregiver for many years;

2) It shows that the very strict standard for court ordered visitation rights set forth in Jones v. Jones can be met. At least in retrospect, the Jones court opined that Thurgood is arguably consistent with the exacting standard of proof that it has set forth.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

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