The following article was co-written and presented at the Maine State Bar Association’s Family Law Institute by Stephen D. Nelson, Esq. and Anthony A. Trask, Esq. Please note that all citations have been omitted. However, a full copy of the article, complete with citations and footnotes, can be viewed upon request.
I. INTRODUCTION
Nearly a century has passed since the United State Supreme Court decided Meyer v. Nebraska, the landmark case in which the Court listed a number of fundamental rights that it considered to be included in the concept of liberty even though they were not specifically enumerated in the Constitution. Among those rights articulated in Justice McReynolds’ famous majority opinion was the right “to bring up children.”
Two years later the Supreme Court wrote about this fundamental right again in the equally seminal Pierce v. Society of Sisters in which a law that required children to attend public school was deemed unconstitutional because “it unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”
Fifty years later in the landmark case of Wisconsin v. Yoder, the Supreme Court wrote that, “[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.”
With such clear guidance regarding the fundamental nature of parents’ rights to raise their children without interference from the state, it is not surprising that state and federal judicial and legislative bodies have been very reluctant to interfere with these rights except in rare circumstances. One exception came in the 1970s and 1980s when state laws were enacted throughout the United States giving grandparents rights to petition courts for visitation with their grandchildren even when the children’s parents were opposed to such visits.
By the mid-1990s grandparents visitation statutes appeared to have reached their high water mark. Initially, parents who challenged these laws in state courts throughout the country had little success. One court stated “the vast majority of courts that have addressed the constitutionality of grandparent visitation statutes authorizing visitation if in the best interest of the child, have upheld these statutes.”
However, a major shift in the way these statutes were viewed began at the turn of the century when the U.S. Supreme Court reviewed the non-parental visitation statute of the State of Washington in the landmark case of Troxel v. Granville. Due to what the Supreme Court characterized as “the sweeping breadth” of the statute at issue in Troxel, it is difficult to compare the Washington statute with those of other states. Notwithstanding, and perhaps by design, the Supreme Court used its complex decision to outline a number of fundamental principles that the states began using to assess the constitutional validity of their own visitation statutes.
While a more detailed analysis of Troxel is set forth below, perhaps the most important legal concept that came from the decision was that in making decisions about awarding grandparents or other third parties visitation rights, courts must begin with the assumption that, unless a parent is determined to be unfit, the court cannot override that parent’s decision to prohibit contact with grandparents or other third parties based solely on an analysis of the best interest of the child.
When the Supreme Court held that visitation being in the child’s best interest, without more, was not enough, a number of courts around the country declared their state laws in violation of the U.S. Constitution’s protection of parents’ fundamental right to the care, custody, and control of their children. Other states amended their statutes or courts interpreted them in such a way as to be in compliance with the constitutional protections afforded biological parents, even if the statute on its face did not appear to do so. The result has been that Troxel made it far more difficult for grandparents and other third parties to prevail in their efforts for visitation, however, it also created substantial confusion regarding the visitation rights of parents, grandparents, and other third parties. This caused parties to seek answers regarding visitation from courts that rendered decisions on a case-by-case and sometimes inconsistent basis, causing even more confusion and less clarity.
At the same time these developments were taking place in the area of grandparents visitation statutes, a number of courts around the country were beginning to grant third parties not only visitation, but parental rights of various kinds based not on any statutory authority, but rather, on a legal concept that has come to be known as de facto parenthood. Courts were finding that with the erosion of the traditional family as a result of high divorce rates, remarriage, children raised out-of-wedlock, etc., people such as stepparents, domestic partners, grandparents, or even just friends were raising children of whom they were not the biological or adoptive parents. Whereas these people were acting in every way as parents and were forming strong attachments to children, courts found that terminating these relationships would be harmful to the children, and as such, issued orders granting parental rights to these de facto parents.
As the law regarding de facto parenthood has become better established in Maine, the visitation rights of grandparents, as is outlined in detail hereafter, have been gradually eroding at the hands of the Maine Supreme Court to the point that it is debatable whether the original statute that was enacted a decade and a half ago retains any meaningful legal significance today. In order to examine the state of both of these legal concepts we will first look at the statutory history. Whereas de facto parenthood has no basis in Maine’s statutory scheme, we will look at grandparents’ rights.
II. LEGISLATIVE HISTORY OF GRANDPARENTS’
VISITATION RIGHTS
In 1991, the Maine Legislature enacted the “The Grandparents Visitation Act”, which gave grandparents a right to petition for visitation in situations where “at least one of the child’s parents or legal guardians has died.”
During the following legislative session, the Grandparents Visitation Act was revised such that language was added to allow certain grandparents to petition the court for visitation in cases where none of the child’s parents or legal guardians had died. The amended language granted standing for a grandparent to petition the court for visitation only after the Court had determined, from reviewing affidavits submitted by the grandparent, that he or she had an existing relationship with the child or had made efforts to establish such a relationship.
During the 117th Legislature in 1996, the Judiciary Committee undertook the ambitious task of re-codifying and revising Title 19 of the Maine Revised Statutes. While this exercise made no substantive changes to The Grandparents Visitation Act, it changed the statutory reference to its current 19-A M.R.S.A. §§1801, et seq.
In 1999, the Act was again amended, however, the only change was to allocate exclusive jurisdiction of petitions to the District Court. This change was not specific to grandparents’ visitation matters, but part of a larger policy change that allocated jurisdiction of all family matters to the District Court.
Further amendments were made to the Act in the 120th Legislature in 2001. During that session a bill was passed that prohibited convicted sex offenders from being awarded primary residence of minor children and placed certain restrictions on the parent-child contact for convicted sex offenders. The amendment to The Grandparents Visitation Act included similar language regarding contact between children and their grandparents who were convicted sex offenders.
In 2005, additional amendments were made to the Act, but most had little substantive impact. First, the Legislature enacted a bill that allowed for the District Court to order a party in any family matter to pay the other party’s attorneys’ fees; this made the section in the Act that allowed for an award of counsel fees to be redundant so it was repealed. Second, another bill before the Legislature sought to improve the guardian ad litem system in the State; the law that was enacted included a section that allows for guardians ad litem to be appointed in grandparent visitation cases and for courts to consider guardian ad litem reports when rendering decisions. Finally, a bill designed to protect children from sex offenders included an amendment to The Grandparents Visitation Act wherein there is a rebuttable presumption that contact between a child and a grandparent who is a convicted sex offender creates a jeopardy situation for the child and is adverse to the best interest of the child.
In the subsequent legislative session, language was added to the section dealing with convicted sex offenders to ensure that it applied not only to those convicted of certain sex offenses in Maine, but also to grandparents who were convicted of the same types of sex offenses in other states.
Although the Maine Supreme court has decided cases that have impacted The Grandparents Visitation Act recently, the Maine Legislature has not altered or amended the language in any way since 2007. Thus, Section III, below, sets out the entire text of the statute in its present form.
III. THE GRANDPARENTS VISITATION ACT
All copyrights and other rights to statutory text are reserved by the State of Maine. The text included in this publication reflects changes made through the Second Regular Session of the 124th Maine Legislature, which adjourned April 12, 2010, but is subject to change without notice. It is a version that has not been officially certified by the Secretary of State. Refer to the Maine Revised Statutes Annotated and supplements for certified text.
CHAPTER 59: VISITATION RIGHTS OF GRANDPARENTS
§1801. Short title
This chapter is known and may be cited as the “Grandparents Visitation Act.”
§1802. Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
1. Grandparent. “Grandparent” is a biological or adoptive parent of a child’s biological or adoptive parent. “Grandparent” includes a biological or adoptive parent of a child’s biological or adoptive parent whose parental rights have been terminated pursuant to Title 18-A, section 9-204 or Title 22, chapter 1071, subchapter VI, but only until the child’s adoption.
§1803. Petition
1. Standing to petition for visitation rights. A grandparent of a minor child may petition the court for reasonable rights of visitation or access if:
A. At least one of the child’s parents or legal guardians has died;
B. There is a sufficient existing relationship between the grandparent and the child; or
C. When a sufficient existing relationship between the grandparent and the child does not exist, a sufficient effort to establish one has been made.
2. Procedure. The following procedures apply to petitions for rights of visitation or access under subsection 1, paragraph B or C.
A. The grandparent must file with the petition for rights of visitation or access an affidavit alleging a sufficient existing relationship with the child, or that sufficient efforts have been made to establish a relationship with the child. When the petition and accompanying affidavit are filed with the court, the grandparent shall serve a copy of both on at least one of the parents or legal guardians of the child.
B. The parent or legal guardian of the child may file an affidavit in response to the grandparent’s petition and accompanying affidavit. When the affidavit in response is filed with the court, the parent or legal guardian shall deliver a copy to the grandparent.
C. The court shall determine on the basis of the petition and the affidavit whether it is more likely than not that there is a sufficient existing relationship or, if a sufficient relationship does not exist, that a sufficient effort to establish one has been made.
D. If the court’s determination under paragraph C is in the affirmative, the court may appoint a guardian ad litem as provided in section 1507. The court shall hold a hearing on the grandparent’s petition for reasonable rights of visitation or access and shall consider any objections the parents or legal guardians may have concerning the award of rights of visitation or access to the grandparent. If the court has appointed a guardian ad litem, the court shall also consider the report of the guardian ad litem. The standard for the award of reasonable rights of visitation or access is provided in subsection 3.
3. Best interest of the child. The court may grant a grandparent reasonable rights of visitation or access to a minor child upon finding that rights of visitation or access are in the best interest of the child and would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child. In applying this standard, the court shall consider the following factors:
A. The age of the child;
B. The relationship of the child with the child’s grandparents, including the amount of previous contact;
C. The preference of the child, if old enough to express a meaningful preference;
D. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;
E. The stability of any proposed living arrangements for the child;
F. The motivation of the parties involved and their capacities to give the child love, affection and guidance;
G. The child’s adjustment to the child’s present home, school and community;
H. The capacity of the parent and grandparent to cooperate or to learn to cooperate in child care;
I. Methods of assisting cooperation and resolving disputes and each person’s willingness to use those methods;
J. Any other factor having a reasonable bearing on the physical and psychological well-being of the child; and
K. The existence of a grandparent’s conviction for a sex offense or a sexually violent offense as those terms are defined in Title 34-A, section 11203.
4. Modification or termination. The court may modify or terminate any rights granted under this section as circumstances require. Modification or termination of rights must be consistent with this section.
5. Enforcement. The court may issue any orders necessary to enforce orders issued under this section or to protect the rights of parties.
6. Costs and fees. (repealed)
7. Supervision required; convictions for sexual offenses. Notwithstanding any other provision of this chapter, the court may award a grandparent who is convicted of a child-related sexual offense visitation with a minor grandchild only if the court finds that contact between the grandparent and the child is in the best interest of the child and that adequate provision for the safety of the child can be made. For purposes of this section, “child-related sexual offense” has the same meaning as in section 1653, subsection 6-A.
The court may require that visitation may occur only if there is another person or agency present to supervise visitation. If the court allows a family or household member to supervise grandparent-child contact, the court shall establish conditions to be followed during that contact. Conditions include, but are not limited to, those that:
A. Minimize circumstances when the family of the grandparent who is a sex offender or sexually violent predator would be supervising visits;
B. Ensure the safety and well-being of the child; and
C. Require that supervision be provided by a person who is physically and mentally capable of supervising a visit and who does not have a criminal history or history of abuse or neglect.
8. Conviction or adjudication for certain sex offenses; presumption. There is a rebuttable presumption that the grandparent would create a situation of jeopardy for the child if any contact were to be permitted and that contact is not in the best interest of the child if the court finds that the grandparent:
A. Has been convicted of an offense listed in section 1653, subsection 6-A, paragraph A in which the victim was a minor at the time of the offense and the grandparent was at least 5 years older than the minor at the time of the offense except that, if the offense was gross sexual assault under Title 17-A, section 253, subsection 1, paragraph B or C, or an offense in another jurisdiction that involves conduct that is substantially similar to that contained in Title 17-A, section 253, subsection 1, paragraph B or C, and the minor victim submitted as a result of compulsion, the presumption applies regardless of the ages of the grandparent and the minor victim at the time of the offense; or
B. Has been adjudicated in an action under Title 22, chapter 1071 of sexually abusing a person who was a minor at the time of the abuse.
The grandparent seeking contact with the child may present evidence to rebut the presumption.
§1804. Mediation
The court may refer the parties to mediation at any time after the petition is filed and may require that the parties have made a good faith effort to mediate the issue before holding a hearing. If the court finds that either party failed to make a good faith effort to mediate, the court may order the parties to submit to mediation, dismiss the action or any part of the action, render a decision or judgment by default, assess attorney’s fees and costs or impose any other sanction that is appropriate in the circumstances. The court may also impose an appropriate sanction upon a party’s failure without good cause to appear for mediation after receiving notice of the scheduled time for mediation.
An agreement reached by the parties through mediation on an issue must be reduced to writing, signed by the parties and presented to the court for approval as a court order.
§1805. Jurisdiction
An action may be commenced in the District Court for the district in which the minor child resides. If a child protective proceeding pursuant to Title 22, chapter 1071 that involves the minor child is pending, the court may consolidate the action filed under this chapter with that child protection proceeding.
An action must be commenced in accordance with the Maine Rules of Civil Procedure. Proceedings under this chapter are governed by the Maine Rules of Civil Procedure.
IV. POTENTIAL LEGISLATIVE DEFINITIONS OF DE FACTO PARENTHOOD
As stated above, de facto parenthood has evolved in Maine purely in case law and has never appeared in any Maine statute. However, it has been introduced into legislation that was defeated several years ago. In addition, various legal scholars have attempted to define de facto parenthood. Below are just two examples of the plethora that have sprung up in the last two to three decades.
A. American Law Institute Definition of De Facto Parent
The American Law Institute conducted an expansive analysis of the legal implications of family dissolution. Following its analysis, it developed countless recommendations for both judicial and legislative purposes. Among those recommendations were standards for determining de facto parenthood. The recommendation is set forth below.
(c) A de facto parent is an individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years,
(i) lived with the child; and
(ii) (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions,
(A) regularly performed a majority of the caretaking functions for the child; or
(B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived.
B. Maine Family Law Advisory Commission Definition of De Facto Parent
In 1995, the Maine Legislature established the “Family Law Advisory Commission” for the purpose of conducting a continuing study of the family laws of Maine. Among other things, the Commission considered the 2002 Uniform Parentage Act that was drafted by the National Conference of Commissioners on Uniform State Laws.
The Family Law Advisory Commission developed an amended version of the Uniform Parentage Act which included a definition of de facto parent and incorporated the same into a bill that was over 100 pages long. The bill was originally introduced during the 122th Maine Legislature in 2005 and was carried over to the second legislative session, but in early 2006 the Judiciary Committee reported the bill out of committee with a unanimous “ought not to pass” report, which is essentially the death knell for any legislation.
No version of the Uniform Parentage Act has ever been adopted in Maine, nor has de facto parenthood ever been recognized in Maine by statute. Notwithstanding, the Commission’s definition of de facto parent as incorporated into its proposed legislation back in 2005 is below.
§1845. De facto parentage
1. De facto parent. The court may adjudicate a person to be a de facto parent.
2. Factors. After notice to all other parents and hearing, the court shall consider at least the following factors in adjudicating whether a person is a de facto parent:
A. Whether the person has lived with the child for a significant period of time;
B. Whether the person has performed parental caretaking functions of the child to a significant degree. For the purposes of this section, parental caretaking functions may include, but are not limited to, contributing toward the child’s residential, educational, recreational, child care and medical, dental and mental health care needs;
C. Whether the person has accepted full and permanent responsibilities as a parent without expectation of financial compensation;
D. Whether the person has contributed financially to the support of the child; and
E. Whether the person, with the consent and encouragement of a parent, has formed a parent-child bond with the child.
3. Parental rights and responsibilities. Upon adjudication of a person as a de facto parent, the court shall determine parental rights and responsibilities in accordance with section 1653.
4. Other parents. The adjudication of a person as a de facto parent does not affect the rights and responsibilities of any other parent, unless otherwise determined by a court.
5. Child support. A de facto parent may be required to pay child support in accordance with the child support guidelines under chapter 63. The requirement that a de facto parent pay child support does not relieve any other parent of the obligation to pay child support unless otherwise determined by a court.
Maine Comment
Section 1845 was added to address a separate category of parentage, “de facto” parents. De facto parentage was initially recognized as an equitable remedy in Maine law based on the particular facts and circumstances of a parent-child relationship. See CEW v. DEW, 2004, ME 43; Young v. Young, 2004 ME 44. In contrast to the types of parentage established by UPA 2002 at conception, birth or in the first two years of the child’s life, a de facto parent-child relationship develops over time and requires a demonstration of a certain quality of relationship. Consistent with the Maine Supreme Judicial Court’s recognition of a de facto parent as a category of parent, the Maine amendment sets forth the factors for a court to consider in adjudicating de facto parentage. Actions to establish de facto parentage are to be filed in the District Court, may be filed at any time and may result in an award of parental rights and responsibilities, including an order to pay child support. The establishment of a de facto parent does not necessarily affect the right of any other parent.
V. GRANDPARENTS’ RIGHTS AND DE FACTO PARENTHOOD CASE LAW
While it is obviously of vital importance that attorneys study the text of the laws on which they advise their clients, laws as drafted and enacted by legislative bodies do not exist in a vacuum. To the contrary, laws are abrogated, amended, or otherwise altered, at least in the way they are administered and enforced, when courts review and interpret them.
Furthermore, some “law” is never enacted by the legislative branch of the government at all, but rather, the law develops over time as the judicial branch is forced to make decisions about certain recurring fact patterns that have never been formally addressed in statutes. This is precisely the manner by which the law on de facto parenthood has developed in Maine.
In order to gain a solid understanding of the present state of the Grandparents Visitation Act and Maine law on de facto parenthood one must examine the case law that has addressed these seemingly divergent topics. A review and analysis of each case in which the Maine Supreme Court addressed these two issues is set forth below. However, no analysis of this area of law would be complete without first examining the seminal United States Supreme Court case of Troxel v. Granville.
A. Troxel v. Granville – 2000
Factual Background – After the suicide of their son, the grandparents commenced an action for visitation under the State of Washington statute. The statute then in effect allowed any person to petition the superior court for visitation rights at any time, and authorized the court to grant such visitation rights when visitation served the best interest of the child. In this case, the child’s mother did not oppose visitation altogether, but sought to limit the visitation to one day per month with no overnight stay. The Washington Supreme Court held that the statute unconstitutionally infringed on the fundamental right of parents to rear their children. The Court’s decision was based on the finding that the United States Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child and the statute required no threshold showing of harm.
Plurality Decision – Justice O’Connor delivered the decision of the Court that affirmed the Washington Supreme Court decision. The Court stated “the liberty interest at issue in the case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” The Court held that the statute, as applied to Granville, unconstitutionally infringed on her fundamental parental rights. The Court was struck by the sweeping breadth of the statute that permitted “any person” to petition for visitation “at any time”, subject only to the requirement that the visitation serve the best interest of the child. Under the statute, the parent’s decision that the visitation would not be in the child’s best interest is accorded no deference or special weight. The trial court had also applied a presumption in favor of grandparent visitation rather than deferring to the mother’s judgment on whether visitation was in the best interest of the children.
The Court also made specific note of the fact that there were no allegations in the case that the surviving parent was unfit. “Accordingly, so 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.” The Court cited with approval Maine’s Grandparents Visitation Act that permits the court to award grandparent visitation where it is in the best interest of the child “and would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child.”
Holding – The official holding in the case was that the statute, as applied to Granville, was an unconstitutional infringement on her fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Court was sensitive to the fact that “the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.’”
Issues Left for Another Day – The Court specifically passed on the question of whether the Due Process Clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. The Court also did not define the precise scope of the parental due process right in the visitation context.
B. Rideout v. Riendeau – 2000
Factual Background – The Rideouts first became grandparents when their daughter, Heaven, had a son when she was an unmarried sixteen year old high school student living at home. Heaven had two other children in the seven years that followed. For those seven years, the Rideouts acted as the children’s primary caregivers and custodians. After a turbulent first marriage ended in divorce, Heaven married Jeffrey Riendeau. The two endured an inauspicious start, allegedly caused by the Rideouts’ interference in their family unit. After the Rideouts contacted the Department of Human Services regarding the Riendeau’s treatment of the children, the Riendeaus jointly elected to eliminate all contact between the children and the Rideouts. While this appeared to help stabilize the Reindeaus’ marriage, the Rideouts wanted to visit with their three grandchildren in spite of the Riendeaus’ wishes and filed a petition seeking court-ordered visitation pursuant to The Grandparents Visitation Act. The Riendeaus filed a motion to dismiss on the ground that the Act is an unconstitutional infringement on their fundamental rights as parents.
The Trial Court made findings of fact that led to the conclusion that pursuant to The Grandparents Visitation Act, the Rideouts would be entitled to visitation, however, the Court found the Act to be unconstitutional and granted the Riendeaus’ motion to dismiss. The Rideouts appealed.
Issues Left for Another Day – The sole issue before the Court was whether subsection 1803(1)(B) of The Grandparents Visitation Act could be applied in a manner consistent with the Due Process Clause of the United States Constitution. The Court specifically refused to shed any light on the constitutionality of subsections 1803(1)(A) and 1803(1)(C). Furthermore, whereas neither party had raised the issue of the Act’s constitutional validity under the Maine Constitution, the Court elected not to address that question either.
Reliance on Troxel v. Granville – Before ever reaching an analysis of that portion of The Grandparents Visitation Act at issue, the Court engaged in a detailed analysis of the then-recently decided Supreme Court case of Troxel v. Granville. The Court ultimately concluded that the statute at issue in Troxel was so dramatically different than Maine’s Grandparents Visitation Act that the two could not be readily compared, however, the Court outlined three guiding principles derived from the Troxel decision that were equally applicable in its decision in Rideout.
First, parents have a fundamental right to direct the care, custody, and control of their children. Second, the “best interest of the child” standard, standing alone, is not a sufficiently compelling state interest to allow for interference with a parent’s fundamental rights. And third, there is a presumption that fit parents act in the best interest of their children, and therefore, if a parent is deemed to be fit, his or her decision not to allow visitation with grandparents, or any other third party, must be granted some “special weight” by the court.
Standard of Review – The Court was careful to point out that its decision was limited only to the facts before it, and therefore, it was only deciding the constitutionality of subsection 1803(1)(B) of the Act which required a “sufficient existing relationship” between the grandparent and grandchild to exist in order to have standing to petition the court for visitation.
The Court acknowledged that, because a parent’s fundamental liberty interest in directing the care, custody, and control of his or her child was implicated by the statute allowing for grandparent visitation, the statute would need to withstand strict scrutiny to be upheld; that is, the statute would need to be narrowly tailored to advance a compelling state interest.
Compelling State Interest – In its discussion of what constitutes a compelling state interest in cases of this sort, the Court indicated that certainly the State has a compelling interest in protecting children from harm. The Court went on to say that there are compelling interests that amount to something less than actual harm, for example, demanding school attendance and restricting child labor. Nevertheless, the Court was guided by Troxel in stating that advancing the “best interest of the child” was not a sufficiently compelling state interest.
The Court then restated the “compelling interest“ standard by suggesting a parent’s rights should only be interfered with for “the most urgent reasons.” The Court concluded that a child maintaining a relationship with a grandparent who has functioned as a parent to the child is an “urgent reason” that would permit the State to interfere with a parent’s rights to restrict a child’s contact with a grandparent.
Narrowly Tailored Action – The Court spoke at length about the structure of The Grandparent’s Visitation Act, with its multiple layers of protection against unwarranted invasions into private family matters and concluded that these three separate levels of protection be provided to parents: requiring a grandparent demonstrate standing; giving careful consideration to the parents objection to the visitation; and, granting visitation only where it would not significantly interfere with the parents’ rightful authority over the child, ensured that the statute was crafted as narrowly as possible to advance the State’s compelling interest or urgent reason.
Holding – The holding has become far more important in the development of case law regarding de facto parents’ rights to contact with children than grandparents rights. Nevertheless, the strict holding of the case is that where a grandparent has functioned as a parent to a child for a significant period of time, the grandparent has standing to petition the court for visitation with the child. Furthermore, in that context, The Grandparents Visitation Act serves a compelling state interest in protecting an existing relationship between a grandparent and a child and is sufficiently narrowly tailored to advance that compelling state interest that it is not an unconstitutional infringement of the parent’s fundamental right to direct the care, custody, and control of that child.
C. Stitham v. Henderson – 2001
Background – Mother and father were married in 1986. In 1993, mother gave birth to a daughter. Father was present at the time of the birth and is named on the birth certificate as the father. Father believed he was the child’s father, and he established and maintained a father-daughter relationship with her. The parties divorced in 1996 and agreed to a divorce judgment that awarded shared parental rights to the child, awarded primary physical residence of the child to mother, awarded father contact with the child at all reasonable and proper times, ordered father to maintain health insurance and pay child support to mother.
A few months after the divorce, mother and Stitham married and submitted to DNA testing to determine if Stitham was the child’s biological father. The test results showed Stitham’s probability of paternity to be 99.96% and mother filed a post-divorce motion in which she sought to obtain a declaration that father was not the child’s biological parent. Father objected, and the District Court denied mother’s motion on the ground of res judicata.
Stitham then filed a complaint in Superior Court pursuant to the Uniform Act on Paternity and requested a declaration that he was the child’s biological father. The court ordered father to submit to DNA testing, and the test results excluded him as the biological father of the child.
Father then brought a motion to allow a counterclaim to establish his equitable parental rights. Stitham moved for summary judgment on his complaint. The court granted Stitham’s motion for summary judgment (declaring that father was not the child’s biological father and that Stitham is the biological father) and granted father’s motion to file a counterclaim, but dismissed the counterclaim without prejudice as not being ripe for adjudication because (1) mother was not a party; (2) Stitham did not request any relief concerning his rights with the child other than the declaration of paternity; and (3) a post-divorce motion, brought by father to enforce visitation, was pending in the District Court.
Issues for the Court – Was the complaint for declaration of paternity barred by res judicata because of the 1996 divorce judgment; was summary judgment appropriately granted based upon the test results; and did the court err in dismissing the counterclaim to establish equitable parental rights?
Discussion – Res Judicata – The Court found that the complaint for declaration of paternity was not barred by res judicata because Stitham was not a party and was not in privity with mother (noting that interests of a biological mother and a biological father are not identical in action in which paternity may be determined). To be in privity, the rights of Stitham had to have been substantially represented and protected by mother in the divorce action such that there was a mutual relationship that established commonality of interest. Since the divorce judgment was by agreement and the issue of paternity was not raised before the court, the Court found that this fact alone demonstrated the divergence of interests between Stitham and mother.
Summary Judgment – Father claimed that summary judgment was not appropriate because (1) the Maine Uniform Act on Paternity did not allow a paternity action when the child was born to a married woman; (2) the DNA test results were not dispositive, and there was a genuine issue of fact as to the paternity of the child; and (3) father was entitled to the presumption of legitimacy.
The Court held that “the Uniform Act on Paternity allows a paternity action even when the child is born to a mother who is married.” The Court further held that since the father did not challenge the validity of the DNA test, the test result provision in the Uniform Act on Paternity declares that if the test results demonstrate that the “alleged father” is not the father, “the question of paternity must be resolved accordingly.” The Act further provided that because Stitham was not excluded by the DNA tests as the father and because the percentage of probability of his paternity is higher than 97%, he is presumed to be the father. Pursuant to 19-A M.R.S.A. §1561(1998), the presumption of paternity could only be overcome by clear and convincing evidence. Finally, the Court concluded that, although M.R.EVID. 302 states that a party asserting the illegitimacy of a child born to, or conceived by, a married woman has the burden of proving illegitimacy beyond a reasonable doubt, 19-A M.R.S.A. §1564 (1998) states that Rule 302 is not applicable when “reliable blood or tissue tests show that the presumed father is not the biological parent,” or “the tests show that the alleged father is not excluded and that probability of the alleged father’s paternity is 97% or higher.”
Counterclaim to Establish Equitable Parental Rights – The Court determined that the Superior Court was correct in dismissing the counterclaim without prejudice. The Court noted that until the Superior Court’s declaration that father was not the biological father, father was the legal father to the child. The parent-child relationship, shown by undisputed facts and by father’s affidavit, places him in the position of a de facto parent. The Court held that because of his prior legal relationship to the child and his current role as a de facto parent, the District Court had jurisdiction to decide whether it was in the best interest of the child for father to have a continuing role in her life and what that role should be. The Court noted in a footnote:
“The District Court also has the statutory authority to award contact with a child to a third party. 19-A M.R.S.A. § 1653(2)(B) (1998). Although this provision could not be interpreted to allow a court to give contact to a person with a limited relationship to the child, over the objections of the parents, Henderson is a person with significant bonds to the child, even if he needs to be placed into the status of a third party. See Rideout v. Riendeau, 2000 ME 198, ¶¶ 27, 33, 761 A.2d 291, 302-03 (upholding the constitutionality of the Grandparent Visitation Act, 19-A M.R.S.A. §§ 1801-1805 (1998 & Supp. 2000), by narrowly interpreting it to allow grandparents, who had functioned as parents to children for a significant period of time, to invoke the parens patriae authority of the court and seek contact with the children).”
D. Robichaud v. Pariseau – 2003
Factual Background – Ms. Pariseau had three children. The children’s father, Mr. Sprague, did not live with the rest of the family and was subject to a protection from abuse order that limited his contact. Mr. Sprague’s mother, Ms. Robichaud, had intermittent contact with her grandchildren during their lives which consisted of visits ranging from a day to a week interspersed with periods during which she had daily contact with the children. When Sprague was arrested for burglary, Pariseau prohibited him from having any further contact with the children. This prohibition apparently extended to Sprague’s mother, who petitioned the court for visitation under The Grandparent’s Visitation Act claiming standing under subsection 1803(1)(B). Pariseau filed a motion to dismiss. Initially, the district court held a case management conference and sent the parties to mediation before addressing the merits of Pariseau’s motion and dismissing the petition for lack of standing.
Issue – The issue before the Court was whether a grandparent who had what one might characterize typical contact with her grandchildren had standing to petition the court for visitation under subsection 1803(1)(B) of The Grandparents Visitation Act.
Holding – In order to achieve standing to petition the court for visitation under The Grandparents Visitation Act, one must demonstrate a compelling interest or an urgent reason that would allow the state to interfere with a parent’s fundamental right to direct the care, custody, and control of his or her child. A past history of intermittent contact between grandparent and grandchild does not constitute a compelling interest or urgent reason sufficient to interfere with parents’ fundamental liberty interests. To achieve standing under subsection 1803(1)(B), one must demonstrate extraordinary contact between grandparent and grandchild.
Procedural Instruction – The U.S. Supreme Court in Troxel and the Maine Supreme Court in Rideout spent significant portions of their decisions addressing the vital importance of eliminating grandparents visitation petitions very early in the legal process where the petitions lack merit. The rationale for doing this is that “the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.’”
The Court in Robichaud reiterated this point, criticizing the trial court for forcing the parties to attend a case management conference and mediation before addressing the parent’s motion to dismiss. The Court provided clear instruction for future courts that “until this preliminary standing question is resolved to allow the grandparents’ action to proceed, no case management conferences and related hearings or court ordered mediation sessions should be scheduled.” The Court went on to say that grandparent petitioners have no right to an evidentiary hearing on the issue of standing, but rather, must establish standing in their petition and accompanying affidavit or else be barred from proceeding further.
E. Young v. Young – 2004
Background – Mother and father met in 1995 when the child was several months old. Subsequently the parties were married, and in 1997, the parties had a natural child together. The parties separated in 2000 and father alleged that he was the only father to the oldest child during the five years the couple was together. After the separation, the parties were involved in a divorce action wherein an interim order awarded primary residential care of both children to mother with visitation rights to father. Mother filed a motion to dismiss the oldest child from the proceeding claiming that father did not have standing to petition for parental rights or responsibilities to the oldest child unless there was a finding of jeopardy. The trial court excluded the oldest child from the proceeding because she was not a child of the parties. Father appealed.
Issue for the Court – Did the Court have authority to consider the relationship of the father and the oldest child and award parental rights and responsibilities and contact, if appropriate?
Discussion – The trial court had two possible sources of authority to consider the relationship of the father and the oldest child and award parental rights and responsibilities and contact, if appropriate:
A. 19-A M.R.S.A. §1653(2)(B);
B. Rights of de facto parent under the Stitham v. Henderson case.
The Court noted that the trial court “possesses broad powers to ensure that a child ‘does not, without cause, lose the relationship with the person who has previously been acknowledged to be the father … through the development of the parental relationship over time’”, but cautioned that de facto parental status will be present only when the adult has “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”
F. C.E.W. v. D.E.W. – 2004
Background – C.E.W. and D.E.W. started living together in early 1992 and agreed that D.E.W. would conceive a child through artificial insemination. In anticipation of the child’s birth, both woman changed their last names, taking E. from C.E.W.’s family name and W. from D.E.W.’s maiden name, so that they and the child would all have the same last name. Soon after the child’s birth, C.E.W. and D.E.W. signed a parenting agreement detailing their intention to maintain equal parental rights and responsibilities for the child. In February 1999, the parties separated and D.E.W. moved out, leaving the child with C.E.W. in the family home and the parties signed a second parenting agreement that: (1) provided that each parent would share equally all childcare and educational decisions and expenses; (2) allocated responsibility for the child’s health insurance, dental insurance, and uninsured health care expenses; and (3) set forth a parent-child contact schedule for vacations, holidays, and special events. The parties also agreed to “take all steps necessary to maintain a close, loving and healthy relationship with both parents,” but that the child’s “primary residence and visitations will be determined by the legal system.”
In November 2000, C.E.W. filed a complaint in the Superior Court containing two counts: the first count, citing the court’s equity jurisdiction, sought a declaration of her parental rights and responsibilities for the child; the second count sought to equitably estop D.E.W. from denying C.E.W.’s status and obligations as a parent. D.E.W. moved to dismiss the complaint, asserting that she was willing to permit C.E.W. visitation with the child, but that she opposed any award of parental rights and responsibilities to C.E.W. and that the court could not award such rights absent a showing that she, as the biological parent, has or will place the child in jeopardy. The Superior Court denied the motion and C.E.W. subsequently filed a motion for a summary judgment. Based on the detailed, undisputed facts presented by the parties, the court accepted the parties’ stipulation that C.E.W. had functioned as the child’s de facto parent throughout his life and entered summary judgment, declaring C.E.W. eligible to be considered for an award of parental rights and responsibilities. The court also entered summary judgment in favor of C.E.W. on the second count, granting “C.E.W.’s claim that D.E.W. is equitably estopped from denying C.E.W.’s status as parent of the child with all rights and responsibilities of any parent under the State of Maine.” D.E.W. appealed from the summary judgment as to Count I of the complaint, but not as to Count II.
Issues for the Court – May the court award parental rights and responsibilities to a person that is not related to a child biologically or by adoption when there is a legal parent who wishes to exercise her parental rights and it is not claimed that the legal parent has or will place the child in jeopardy, and if so, is the award limited to reasonable rights of contact between the de facto parent and the child?
Discussion – The parties did not challenge the finding that C.E.W. was a de facto parent of the child, therefore the Court’s analysis starts from that touchstone. Relying on Stitham, the Court noted that “matters involving the custody or best interests of a child are equitable in nature,” and that “the District Court is the forum where sensitive family matters should ordinarily be resolved.” The Court reasoned that pursuant to the parens patriae doctrine, the trial court has equitable jurisdiction to determine a child’s best interest and award parental rights and responsibilities, and in limited circumstance, entertain an award of parental rights and responsibilities to a de facto parent. “Accordingly, when an individual’s status as a de facto parent is not disputed and has been so determined by a court properly exercising jurisdiction in a declaratory judgment action pursuant to Title 19-A, the court may consider an award of parental rights and responsibilities to that individual as a parent pursuant to section 1653(2)(D), based upon a determination of the child’s best interest pursuant to section 1653(3).”
Left for Another Day – The Court specifically did not address “the separate and more fundamental question of by what standard the determination of de facto parenthood should be made,” but noted “it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” The concurrence in Stitham v. Henderson cited the American Law Institute definition of de facto parenthood that is set forth in Section IV.B. above but in neither case did a majority of the Court endorse such a definition.
G. Leonard v. Boardman – 2004
Factual Background – Mother and Boardman began living together when mother was pregnant with the child that was at the center of this dispute. When the child was a baby, Boardman took care of him as much as, if not more than, mother. With the exception of few weeks, the child lived all his life with Boardman. Mother suffered from substance abuse issues and, when the child was seven, mother moved with the child and his siblings to the Portland area. Father located the children after six weeks and mother asked Boardman to take the children with him, which he did. Mother subsequently filed a petition for a writ of habeas corpus seeking to require Boardman to return the child to her.
The Superior court admitted into evidence a document dated July 15, 2002, signed by mother in which she stated that she was giving temporary custody of all three children to Boardman “because of my physical and mental [in]capacity cause[d] by alcoholism.” The document further stated: “At a later date when I am rehabilitated we will work out the custody arrangement with the court. I also want visitation rights when I am able.”
The court found that Boardman was a de facto parent to the child and that it was in the child’s best interest for him to reside with Boardman. The court denied the petition for writ of habeas corpus finding that mother had given temporary custody of the child to Boardman and declared that it was leaving the physical possession of the child with Boardman, exercising its equity jurisdiction to grant custody of the child to Boardman.
Issue – Mother claimed that the court was required to turn over possession of the child to her because she was the child’s mother and Boardman was not the child’s biological father.
Decision of the Court. – The Court affirmed the judgment, citing C.E.W. v. D.E.W. Mother argued that her right to possession of the child was primary to that of Boardman, however the Court held that the court’s primary concern in the dispute between his mother and the person he has lived with for eight years, must be the child’s best interest.
The Court noted that in the context of a habeas petition, the court has the discretion to have the child delivered to the petitioner, leave the child where he is, or order the child to be delivered to still another person. The Court also noted that the court, with full equity jurisdiction can determine the best interest of the child and adjudicate a change in the right to the custody of the child, but the remedy is incomplete in comparison to the remedy available to parties who invoke the power of the court to issue a parental rights order pursuant to 19-A M.R.S.A. § 1653(2). The matter was remanded with the suggestion that the court invite the parties to request a Title 19-A parental rights order that would fully account for the child’s best interest, rather than simply dealing with custody and possession.