Jones v. Jones 2013 UT App 174 Reduction in Grandparent Visitation Rights

The Utah Appellate court reversed and remanded back to the trial court finding that the grandparents had not presented sufficient evidence to overcome the compelling interest of the state that is narrowly construed (“tailored”) in favor of the fundamental right of the actual parent.  The Appellate court reiterated that the rights of a parent to raise his or her child(ren) without government intervention (i.e. a court order requiring the parent to submit his or her child to the grandparents for visitation) is one of the oldest “fundamental rights” of citizens of our republic; and that the rights of grandparents or even other family members are only “inchoate” or “dormant” that surface only when the parents die.

The inherent conflict here, when boiled down to the core, concerns whether the “best interests of the child” supersedes the fundamental right of a parent as outlined above.   The Appellate court grappled with this issue because the “best interests of the child” standard cannot be a reason to usurp the fundamental right of a parent unless the court could find a compelling interests.  The previous evidentiary standard in these cases was the “clear and convincing standard” of review where the factors outlined in U.C.A. 30-5-1 et. seq. had to be found by clear and convincing evidence as compared to a preponderance of evidence or even a beyond reasonable doubt standard.

The Appellate court then reiterated that evidentiary standards are not to be confused with constitutional standards of review, although, they are obviously related.  Regardless, any statute that infringes on a parents fundamental right must be read with strict scrutiny as that statute applies to the particular case.  This, essentially, was the holding of Jones, and the Appellate court found that the trial court did not review the case under the lens of strict scrutiny when applying the statute to the facts.

In short, the Appellate court held that the only compelling interests that a state has in this regard is where the child is suffering from abuse, neglect etc. or where the grandparents have already developed a long and substantial relationship with the grandchild.  In other words, as long as the parent denies visitation to grandparents immediately after the grandchild is born, absent some showing of abuse or neglect, the grandparents will never be given visitation rights despite the obvious beneficial influence and love that grandparents may show with the grandchild. Instead, the grandparent(s) must show that the loss of the relationship would work some “physical or emotional harm” to the child.

Posted by Matt Wadsworth, partner at Arnold & Wadsworth, serving the areas of Salt Lake City, Ogden, Farmington, Kaysville, Layton, Draper.

Click on Case to Download or View - Jones v. Jones

 

 

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