Glidden v. Conley

Annotate this Case
Glidden v. Conley (2000-491); 175 Vt. 111; 820 A.2d 197

2003 VT 12

[Filed 14-Feb-2003]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 2003 VT 12

                                No. 2000-491

  Morris R. Glidden	                         Supreme Court

                                                 On Appeal from
       v.	                                 Windham Family Court


  Nyoakla Lynn Conley	                         October Term, 2001


  Mary Miles Teachout, J.

  Margot L. Stone and Amy Phillippo, Newfane, for Plaintiff-Appellant.

  Lois Mech, Pro se, Putney, Defendant-Appellee.

  William H. Sorrell, Attorney General, Montpelier, and Les Birnbaum,
    Assistant Attorney General, Waterbury, for Intervenor.
                     

  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       ¶  1.  SKOGLUND, J.      Appellant Morris Glidden appeals from a
  Windham Family Court order denying his motion to reconsider the court's
  award of visitation rights to Lois Mech, the maternal grandmother of
  Glidden's biological daughter, Amanda.  Glidden, whose parental fitness is
  unquestioned, argues that the court's order deprives him of his
  constitutionally-protected right to decide whether, and on what terms, his
  daughter should have contact with her grandmother.  We agree, and hold that
  the court unconstitutionally applied the statute governing grandparent
  visitation.  We therefore reverse the visitation order.
   
       ¶  2.  Morris Glidden and Nyoakla Conley are the biological parents
  of Amanda May Conley, born on July 2, 1992.  Lois Mech is Nyoakla Conley's
  mother and Amanda's maternal grandmother. Glidden and Conley were never
  married and never cohabitated. Glidden did not learn of his paternity until
  a 1995 probate proceeding through which Conley, who has a history of
  substance abuse and criminal conduct, was agreeing to relinquish her
  parental rights and place Amanda with adoptive parents. Upon discovering
  his paternity, Glidden sought to end the probate proceeding and establish a
  visitation schedule with Amanda by commencing a parentage proceeding in
  family court.  He also began contributing financial support for his
  daughter.  At the time, Glidden did not have an appropriate home for Amanda
  so Glidden, Conley, and Mech agreed that Mech would become Amanda's legal
  and physical guardian.  The family court, which granted a motion to
  transfer the probate proceeding to the family court and consolidate it with
  the parentage action, approved the agreement.  Thus, in January 1996, the
  court established a visitation schedule with Amanda for Glidden and Conley. 
  Glidden eventually married, and he continued regular visits with Amanda
  until her behavioral problems became disruptive for him and all concerned. 
  Glidden voluntarily suspended his visits with Amanda and urged Mech to
  obtain counseling for her, while he continued to contribute financial
  support for Amanda.

       ¶  3.  Less than two years later, Glidden attempted to renew
  visitation with his daughter.  His efforts were rebuffed and resulted in
  frequent disagreements between him, Mech, and Conley.  In April 1998, Mech
  moved to modify the January 1996 order to allow only supervised visits
  between Glidden and Amanda.  The next month, Glidden moved to enforce the
  January 1996 order.  Following the hearing on the motions, the court
  established a new temporary visitation schedule for Glidden and ordered a
  study of the Glidden and Mech households.

       ¶  4.  The home study was filed on September 15, 1998. (FN1)  Along
  with the home study, Glidden filed a petition to dismiss Mech as Amanda's
  guardian and to obtain custody of his daughter.  The court thereafter
  entered another temporary order on visitation between Glidden and Amanda
  based on another agreement between the parties.  

       ¶  5.  In August 1999, Glidden, Conley, and Mech entered into yet
  another agreement on custody and visitation.  Under the agreement, which
  the court approved on August 31, 1999, Mech resigned guardianship of
  Amanda, and Glidden and Conley shared physical and legal custody of her,
  although Glidden became Amanda's primary physical custodian.  The parties
  also agreed that if either parent was cited by law enforcement for any
  criminal offense involving drugs or alcohol, the non-offending parent would
  immediately be entitled to sole custody of Amanda.  Conley was unable to
  maintain her sobriety and was charged in district court for disorderly
  conduct.  Accordingly, pursuant to the parties' agreement, and by order of
  the family court, Glidden became sole legal and physical custodian of
  Amanda on May 15, 2000.  Conley was still allowed visitation with Amanda
  one day per weekend, followed by full weekends upon satisfactory completion
  of a drug and alcohol rehabilitation program.
   
       ¶  6.  Mech was seeing Amanda once a week for three hours at a time
  during Amanda's visits with Conley when in July 2000, she filed a request
  for visitation pursuant to Vermont's grandparent visitation statute, 15
  V.S.A. § 1011(a).  Her petition did not contain any allegations that
  Glidden had unreasonably denied her contact with Amanda.  Instead, she
  expressed "fear" that he would prohibit her from seeing the child without a
  court-ordered visitation schedule.  After a hearing, the court, on August
  4, 2000, granted temporary visitation every other Saturday from 10:00 a.m.
  until 4:00 p.m. at Mech's home.  Additionally, the court ordered Glidden to
  allow Mech to transport Amanda for a four-hour visit with Conley each
  Sunday at the Massachusetts long-term residential rehabilitation center
  where Conley resided and was receiving treatment. 

       ¶  7.  On August 18, 2000, Glidden moved to reconsider the visitation
  award arguing that the court's failure to consider the decision of a fit
  parent violated his Fourteenth Amendment right to raise his child without
  undue interference by the state, relying on the United States Supreme Court
  decision in Troxel v. Granville, 530 U.S. 57 (2000).  

       ¶  8.  Further, Glidden had discovered that a family friend living
  in Mech's household, to whom Amanda refers as "Uncle David," is a convicted
  sex offender.  "Uncle David's" conviction stemmed from a sex offense
  against Conley when she was a minor, but he nevertheless has lived as a
  family member in the Mech household since 1980.  Although Glidden was
  supportive of visitation between his daughter and Mech because of the
  child's relationship with her, he was concerned about a sex offender's
  presence with Amanda during their visits.  He also claimed Mech had misled
  him about the identity of Conley's abuser.    
   
       ¶  9.  The court affirmed the order following a hearing where it
  took evidence on whether it "should substitute its judgment on grandparent
  visitation for that of Mr. Glidden."  The court found that Mech gave
  Glidden false information about the sex offender, that there had been
  questionable incidents between the offender and Amanda, and that Glidden's
  concern about the presence of the offender in Mech's home was valid.  The
  court also found it likely that conflict between Glidden and Mech over
  visitation would continue without a court order structuring the visits
  between Amanda and her grandmother.  It stated that Glidden's concern about
  the sex offender was "likely to have the effect of causing him to be overly
  concerned and restrict[ive of] the amount of contact between Amanda and Ms.
  Mech that even he believes is otherwise good for Amanda."  The court
  therefore denied Glidden's motion, but modified the order to prohibit Mech
  from allowing the sex offender to be in Amanda's presence during their
  visits.  Glidden thereafter took this appeal.

       ¶  10.  On appeal, Glidden argues that the family court's order and
  the grandparent visitation statute unconstitutionally infringe on his right
  to parent Amanda by not affording his parental decision regarding
  visitation sufficient deference in light of his fitness to adequately
  parent his daughter.  Because Glidden is challenging the constitutionality
  of the statute, the Vermont Attorney General's Office intervened for the
  State in this appeal, and argues for a constitutional construction of the
  statute.   For the reasons that follow, we agree with the State that the
  statute is not unconstitutional on its face, but we reverse the family
  court's order because we find meritorious Glidden's claim that the statute
  exceeds constitutional boundaries as applied in this case.
   
       ¶  11.  We review an order granting visitation to determine whether
  the court exercised its discretion on grounds that are clearly unreasonable
  or untenable.  Cleverly v. Cleverly, 151 Vt. 351, 355-56, 561 A.2d 99, 102
  (1989).  When considering the constitutionality of a statute we begin by
  presuming that the legislative enactment is constitutional.  In re
  Proceedings Concerning a Neglected Child, 129 Vt. 234, 240-41, 276 A.2d 14, 18 (1971).  In the absence of "clear and irrefragable evidence that [the
  statute] infringes the paramount law," we will not strike down a statute as
  unconstitutional.  Id.  Moreover, if we can construe the statute in a
  manner that meets constitutional requirements, we will do so unless the
  statute's plain language precludes it.  In re Montpelier & Barre R.R., 135
  Vt. 102, 103-04, 369 A.2d 1379, 1380 (1977).  Therefore, we examine
  Vermont's grandparent visitation statute in the context of the visitation
  order at issue in this appeal to determine whether the court abused its
  discretion by applying the statute in a manner that infringes on Glidden's
  right to raise Amanda without interference by the State. 

       ¶  12.  The United States Supreme Court has "long recognized that
  freedom of personal choice in matters of marriage and family life is one of
  the liberties protected by the Due Process Clause of the Fourteenth
  Amendment."  Cleveland Bd. of Educ. v. La Fleur, 414 U.S. 632, 639-40
  (1974).  The interest of a parent in the custody, care, and control of his
  child may be the oldest of the fundamental liberty interests our federal
  constitution protects.  Troxel, 530 U.S.  at 65; In re S.B.L., 150 Vt. 294,
  303, 553 A.2d 1078, 1084 (1988).  The state must generally show a
  compelling interest "before it encroaches upon the private realm of family
  life." In re Proceedings Concerning a Neglected Child, 130 Vt. 525, 530,
  296 A.2d 250, 253  (1972).  Indeed, there is a "presumption that fit
  parents act in the best interests of their children."  Troxel, 530 U.S.  at
  68.  "[S]o long as a parent adequately cares for his or her children (i.e.,
  is fit), there will normally be no reason for the State to inject itself
  into the private realm of the family to further question the ability of
  that parent to make the best decisions concerning the rearing of that
  parent's children."  Id. at 68-69.
   
       ¶  13.  That principle was central to the United States Supreme
  Court's plurality holding in Troxel v. Granville, where the Court held that
  a Washington statute providing for grandparent and other third-party
  visitation was unconstitutionally applied.  Id. at 67. (FN2)  The
  Washington statute at issue was "breathtakingly broad" because it allowed "
  'any person' " to petition the court for visitation rights " 'at any time,'
  " and authorized the court to grant a petition whenever " 'visitation may
  serve the best interest of the child.' "  Id. (quoting Wash. Rev. Code §
  26.10.160(3) (1994)).  Of particular concern to the plurality was that in
  applying the statute to a grandparent's request for visitation, the
  Washington court afforded no deference to a parent's determination of the
  child's best interests.  Id. at 67-69.  The statute lacked any  

    requirement that a court accord the parent's decision any
    presumption of validity or any weight whatsoever.  Instead, the
    Washington statute places the best-interest determination solely
    in the hands of the judge.  Should the judge disagree with the
    parent's estimation of the child's best interests, the judge's
    view necessarily prevails.  Thus, in practical effect, in the
    State of Washington a court can disregard and overturn any
    decision by a fit custodial parent concerning visitation whenever
    a third party affected by the decision files a visitation
    petition, based solely on the judge's determination of the child's
    best interests.   

  Id. at 67 (emphasis in original).  

       ¶  14.  The Supreme Court concluded that the Washington statute was
  unconstitutional as applied in Troxel due to the absence of any
  consideration of, or deference to, the parent's decision regarding
  grandparent-child contact.  Id.  It also recognized that the burden of
  litigation in a domestic relations proceeding can itself so disrupt the
  parent-child relationship that the custodial parent's constitutional right
  to make basic determinations for a child's well being can be jeopardized. 
  Id. at 75; see also id. at 101 (Kennedy, J., dissenting).
   
       ¶  15.  Our cases involving conflict between a custodial parent's
  right to make decisions for the child and a noncustodial parent's right to
  visitation recognize the need for judicial deference to the custodial
  parent's decision about the child's best interests.   In Lane v. Schenck,
  we observed that "[w]hile the policy promoting visitation must be
  considered, concerns relating to it must not overshadow the proper role of
  the custodial parent."  158 Vt. 489, 499, 614 A.2d 786, 791 (1992).  We
  further explained that "[v]isitation should function to foster beneficial
  relations between the children and the noncustodial parent, but visitation
  does not warrant nullification of the custodial parent's reasonable
  decisions."  Id.; see also McCart v. McCart, 166 Vt. 629, 630, 697 A.2d 353, 353  (1997) (mem.) (court improperly substituted its judgment for
  custodial parent's by prohibiting custodial parent from moving solely
  because move would disrupt father's visitation with children).  Thus, our
  cases have already recognized the Troxel principle of deferring to a
  custodial parent's decision regarding the welfare of the child, even when
  the decision conflicts with the associational interest of the child's
  noncustodial parent as protected by state statute.  See 15 V.S.A. § 650
  (public policy expressed by Legislature favors opportunity for maximum
  parent-child contact following divorce or separation unless significant
  physical or emotional harm to child or parent would likely result from
  contact).
   
       ¶  16.  Those decisions are relevant to put Mech's claim here in
  proper perspective.  At common law, grandparents had no rights of
  visitation by virtue of their status as grandparents.  Troxel, 530 U.S.  at
  97 (Kennedy, J., dissenting); Note, Grandparent Visitation Statutes: Do
  Legislatures Know the Way to Carry the Sleigh Through the Wide and Drifting
  Law?, 53 Fla. L. Rev. 321, 325 (2001).  At common law, a parent's
  obligation, if any, to facilitate a relationship between the child and the
  child's grandparents was a moral one only.  Troxel, 530 U.S.  at 97
  (Kennedy, J., dissenting); Grandparent Visitation Statutes, supra, at 324
  n.12.   Now, all fifty states have statutes that provide for grandparent
  visitation in some form.  See L. Nolan, Beyond Troxel: The Pragmatic
  Challenges of Grandparent Visitation Continue, 50 Drake L. Rev. 267, 267
  n.2 (2002).

       ¶  17.  It is no surprise to learn then that after the United States
  Supreme Court issued Troxel, a number of other states were confronted with
  challenges to their grandparent visitation statutes.  Although state
  statutes vary, courts in states with statutes more limited than the one at
  issue in Troxel have reversed visitation orders on due process grounds
  where the lower court failed to employ a presumption in favor of the fit
  parent's visitation decision.  See, e.g., McGovern v. McGovern, 33 P.3d 506, 511-12 (Ariz. Ct. App. 2001) (construing state statute consistent with
  due process by requiring court to apply rebuttable presumption that fit
  parent acts in child's best interests); Seagrave v. Price, 79 S.W.3d 339,
  345 (Ark. 2002) (trial court's failure to apply a presumption in favor of
  custodial parent's decision regarding visitation renders order
  unconstitutional);  Kan. Dep't of Soc. & Rehab. Servs. v. Paillet, 16 P.3d 962, 970 (Kan. 2001) (grandparent visitation order reversed because trial
  court made no presumption that fit parent acts in child's best interests);
  Roby v. Adams, 68 S.W.3d 822, 828 (Tex. Ct. App. 2002) (grandparent has
  burden to overcome presumption in favor of fit parent's decision to
  establish best-interests-of-child prong of grandparent visitation statute);
  see also Wickham v. Byrne, 769 N.E.2d 1, 7-8 (Ill. 2002) (holding section
  of grandparent visitation statute facially unconstitutional because it
  requires finding of best interests of child only and does not give parental
  decision presumptive weight); Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass.
  2002) (saving grandparent visitation statute from facial constitutional
  challenge by reading into statute a presumption in favor of parent's
  visitation decision).  The presumption in favor of the fit parent's
  decision reflects Justice O'Connor's observation in the Troxel plurality
  opinion:
   
    [T]he decision whether . . . an intergenerational relationship
    would be beneficial in any specific case is for the parent to make
    in the first instance.  And, if a fit parent's decision of the
    kind at issue here becomes subject to judicial review, the court
    must accord at least some special weight to the parent's own
    determination.

  Troxel, 530 U.S.  at 70.

       ¶  18.  Other state cases have relied on the lack of compelling
  circumstances to justify overturning state-sanctioned and
  judicially-enforceable visitation orders in light of the parent's
  constitutional interests.  See, e.g., Linder v. Linder, 72 S.W.3d 841, 857
  (Ark. 2002) (strict scrutiny analysis applies and requires compelling state
  interest to overcome presumption in favor of fit parent's choice); Stacy v.
  Ross, 99-CA-00579-SCT,  23, 798 So. 2d 1275 (Miss. 2001) (grandparent
  seeking visitation must show compelling circumstances to override parent's
  visitation decision); see also Blixt, 774 N.E.2d  at 1059-60 (grandparent
  may rebut presumption in favor of fit parent by showing significant harm to
  child will result from lack of visitation order because state has
  compelling interest to protect children from harm).  At least one state
  court overturned a visitation order concluding that the litigation's
  intrusiveness resulted in an unconstitutional application of the
  grandparent visitation statute.  Wilde v. Wilde, 775 A.2d 535, 545-46 (N.J.
  Super. Ct. App. Div. 2001); see also Blixt, 774 N.E.2d  at 1066 (recognizing
  burden of litigation on parents, court requires grandparent to submit
  detailed and verified petition to show grandparent can meet evidentiary
  burden because notice pleading is not adequate to safeguard parents from
  unwarranted grandparent visitation petitions).  
   
       ¶  19.  On its face, Vermont's grandparent visitation statute makes
  no provision for deference to parental decision making as required under
  Troxel and our own precedent.  Granted, the statute does not suffer from
  the "breathtakingly broad" "any person" language in Washington's statute,
  as characterized by Justice O'Connor's plurality opinion in Troxel, because
  the statute is limited to visitation for grandparents only.  The statute
  broadly permits the family court, however, to "award visitation rights to a
  grandparent of the child, upon written request of the grandparent filed
  with the court, if the court finds that to do so would be in the best
  interest of the child."  15 V.S.A. § 1011(a).  Section 1013(b) provides
  criteria for the court to employ when considering whether grandparent
  visitation is in the child's best interests, but the custodial parent's
  decision on the question is not among them.  See 15 V.S.A. § 1013(b)
  (listing mandatory criteria).  Although the statute does not afford
  grandparents party status or appeal rights, see id. § 1011(b), (c), it
  allows them to move for enforcement of the order as would any party.  Id. §
  1011(d).

       ¶  20.   Like the Washington statute, the Vermont statute commands
  consideration of the "best interest of the child," id. §1011(a), and as a
  result, carries the same risk of unconstitutional application - that it
  may effect the same deprivation of fundamental parental rights suffered
  under the Washington court order in Troxel.  Although the "best interests
  of the child" standard is familiar, see, e.g., 15 V.S.A. § 665 (setting
  forth best interests standard to determine parental rights and
  responsibilities in a divorce proceeding), the grandparent visitation
  statute uses the standard in a new context.  Based on the plurality's
  reasoning in Troxel, the standard, left unspecified and undefined, cannot
  survive a due process challenge.  It is for this Court, therefore, to
  construe this statute to render it constitutional.  Montpelier & Barre
  R.R., 135 Vt. at 103-04, 369 A.2d  at 1380.  We conclude that § 1011's "best
  interests" consideration can be construed within the context of the
  grandparent visitation statute to satisfy due process.
    
       ¶  21.  To accord with due process, an evaluation of the best
  interests of the child under § 1011 requires that a parental decision
  concerning grandparent visitation be given a presumption of validity.  See
  Troxel, 530 U.S.  at 69; McGovern, 33 P.3d at 511-12; Seagrave, 79 S.W.3d  at
  345;  Paillet, 16 P.3d  at 970; Roby, 68 S.W.3d  at 828.  A grandparent may
  rebut that presumption by providing evidence of compelling circumstances to
  justify judicial interference with the parent's visitation decision. 
  Stacy, 99-CA-00579-SCT,  23, 798 So. 2d  at 1280.  That a child might
  benefit from contact with a grandparent or that a parent might deny
  grandparent visitation for no good reason in the court's view are not the
  kind of compelling circumstances contemplated by the Constitution or this
  decision.  Rather, to overcome a parent's decision on grandparent
  visitation, a grandparent must show circumstances like parental unfitness,
  see Linder, 72 S.W.3d  at 858 (some special factor like unfitness of
  custodial parent must exist to justify state interference in parent's right
  to decide grandparent visitation issue); Stacy, 99-CA-00579-SCT,  23, 798 So. 2d  at 1280 (compelling circumstances suggesting something close to
  unfitness of custodial parent may be sufficient to justify visitation award
  to grandparents over parent's objection), or significant harm to the child
  will result in the absence of a visitation order (thus suggesting parental
  unfitness), see Linder, 72 S.W.3d  at 858 (harm to the child  in absence of
  visitation order may warrant overriding parent's visitation decision);
  Blixt, 774 N.E.2d  at 1060 (to rebut presumption in custodial parent's
  favor, grandparent must prove that failure to grant visitation will "cause
  the child significant harm by adversely affecting the child's health,
  safety, or welfare").   This construction of the statute minimizes the risk
  that a court will substitute its judgment for that of the parent simply
  because the court disagrees with the parent's decision.  Our construction
  of the statute also recognizes that a dispute between a fit custodial
  parent and the child's grandparent over grandparent visitation "is not a
  contest between equals."  Stacy, 99-CA-00579-SCT,  23, 798 So. 2d  at 1280;
  see also Wickham, 769 N.E.2d  at 7-8 (finding unconstitutional a statute
  that places parent on equal footing with third parties seeking visitation
  with the child).   Because we can construe Vermont's grandparent visitation
  statute consistent with constitutional requirements, Glidden's facial
  challenge to the statute must fail.  
   
       ¶  22.  Having concluded that Vermont's grandparent visitation
  statute is not facially invalid, we now turn to Glidden's claim that the
  family court applied the statute in a manner that violated his
  constitutional rights.  Two reasons persuade us that the family court's
  order impermissibly infringes on Glidden's right to decide what visitation
  is in his daughter's best interests.  First, there was no allegation or
  finding that Glidden was not fit to parent Amanda; in fact, he was her sole
  legal and physical custodian.  Second, there was no allegation or finding
  that Amanda would suffer significant harm without court-ordered visits with
  Mech.  Glidden testified, and the court found, that he wants his daughter
  to maintain a relationship with her grandmother, but wanted a limited
  visitation schedule of his choosing.  Critically, the court acknowledged
  that Glidden had a reasonable and justifiable reason for his reluctance to
  grant the visitation Mech sought due to a convicted sex offender's presence
  in her household.  Nevertheless, the court shared Mech's fear that Glidden
  might restrict visits due to his concerns about his daughter's well being
  while in her care.  As a result of that fear, and the history of conflict
  between Mech and Glidden, the court decided to "substitute it's [sic]
  judgment over the discretion of the father in terms of the scheduling and
  requirement for grandparent visitation."  The order reads as if the court
  presumed visits with Mech were in Amanda's best interests and that
  Glidden's desire to limit or condition such visits was insufficient to
  overcome that presumption.  In effect, the court employed a presumption
  directly contrary to that required by constitutional precedents, namely,
  that a fit parent's decision governs in a dispute about visitation between
  the child and a third party, including the child's grandparent.  The
  court's rationale for entering an enforceable visitation order - to
  eliminate the potential for Glidden to restrict visitation due to his
  otherwise valid parental concerns - is far from compelling, and, standing
  alone, is not enough to sustain the decision.  The court's order is thus
  precisely the type of decision making which, by disregarding and giving no
  deference to a fit custodial parent's determination of the child's best
  interests, exceeds the bounds of the Due Process Clause, violates Glidden's
  fundamental rights, and was held unconstitutional in Troxel.  See Troxel,
  530 U.S.  at 69-70.

       ¶  23.  Obviously the court will often "differ with the custodian as
  to the wisdom of a certain parental decision."  Lane, 158 Vt. at 496, 614 A.2d  at 790.  It may not, however, "lightly replace the judgement of the
  custodian with its own."  Id.  Because of the long-standing recognition of
  the right to raise children free from state interference, "[i]t would be
  anomalous, then, to subject a parent to any individual judge's choice of a
  child's associates from out of the general population merely because the
  judge might think himself more enlightened than the child's parent."
  Troxel, 530 U.S.  at 79 (Souter, J., concurring). 
   
       ¶  24.  Although we conclude that the trial court's failure to defer
  to Glidden's decision on visitation without a showing of compelling
  circumstances requires us to reverse the order, we elaborate on one other
  significant aspect of this case that further supports our decision.  As
  Justice Kennedy's dissent in Troxel explained, the litigation of visitation
  disputes can be so disruptive to the parent-child relationship that the
  proceeding itself can have constitutional implications.  Troxel, 530 U.S.  at 101 (Kennedy, J., dissenting); see also Beyond Troxel, supra, at 287-88
  (discussing financial and other intangible costs of grandparent visitation
  litigation).  Although the Legislature has restricted a grandparent's party
  status and appeal rights under the grandparent visitation statute, see 15
  V.S.A. § 1011(b), (c), a court-sanctioned visitation schedule is
  enforceable, and a parent who disobeys the order may be held in contempt. 
  See id. § 1011(d); 12 V.S.A. § 122; see Beyond Troxel, supra, at 285.  The
  ability to enforce an order, and the availability of contempt to redress a
  parent's otherwise reasonable decision on visitation, can allow the
  grandparent to assert considerable control over the family.  Grandparents
  may turn to the court for relief each time they perceive the parent is not
  following the court order and thereby ask the court to micromanage the
  parent's otherwise constitutionally protected right to raise the child free
  from state interference. See Beyond Troxel, supra, at 286; see also Wilde,
  775 A.2d  at 545 ("Because the litigation itself 'implicates' the parent's
  constitutional rights, a grandparent's statutory right to hale a parent
  into court must be carefully circumscribed, particularly where[] . . . the
  parent's fitness is not disputed.").  

       ¶  25.  In this case, since Amanda established a relationship with her
  father and became a member of his household, a significant amount of
  conflict about contact between her and Mech has occurred, requiring
  numerous court proceedings.  Those proceedings, and the potential for
  further proceedings related to the visitation order here, can be considered
  so burdensome to Glidden that  his right to raise Amanda without
  interference by the State is implicated. See Troxel, 530 U.S.  at 75
  (recognizing that parent's constitutional right to raise child can be
  implicated by burden of litigating domestic relations proceeding). 
  Therefore, our decision today circumscribes Mech's statutory right under §
  1011 so as to protect Glidden's constitutional rights to raise Amanda
  without having to justify his decisions to the State.
   
       ¶  26.  In an ideal world, going over the river and through the woods
  to grandmother's house might bring nothing but joy to all concerned. 
  However, in this case, as the trial court acknowledged, the child's father
  had good reason to question the wisdom of allowing the amount of
  unrestricted visitation grandmother requested.  The court's decision in
  effect found father a fit parent for all purposes save one: making the
  decision about how often and in what manner his child would visit with the
  grandmother.  In so deciding, the court erred and its decision cannot
  stand.

       Reversed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


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                                  Footnotes


FN1.  The home study recommended that Amanda reside with Glidden and his
  family.  The record is unclear, however, about what use, if any, the court
  made of the study.

FN2.  Justice O'Connor's opinion was joined by Chief Justice Rehnquist and
  Justices Ginsburg and  Breyer.  See Troxel, 530 U.S.  at 59.  Justices
  Souter and Thomas concurred in the judgment, but rendered separate
  concurring opinions.  See id. at 75 (Souter, J. concurring) and 80 (Thomas,
  J., concurring).  Like the plurality, Justice Souter was concerned that the
  Washington statute did not give any presumptive weight to the custodial
  parent's visitation decision, but he concluded that the Washington statute
  was facially unconstitutional because of its broad sweep.  Id. at 76-77, 79
  (Souter, J., concurring).  Justice Thomas opined that he would affirm the
  judgment below on the grounds that the state had failed to demonstrate
  "even a legitimate governmental interest - to say nothing of a compelling
  one - in second-guessing a fit parent's decision regarding visitation with
  third parties."  Id. at 80 (Thomas, J., concurring).  Justices Stevens,
  Scalia, and Kennedy each wrote separate dissenting opinions.  See id. at 80
  (Stevens, J., dissenting), 91 (Scalia, J., dissenting), and 93 (Kennedy,
  J., dissenting).