Skip Maine state header navigation

Agencies | Online Services | Help
Rideout v. Riendeau, majority opinion, part 2.

D.  Constitutionality of the "Sufficient Existing Relationship" Provision
	[¶18]  We begin our analysis by recognizing that parents have a
fundamental liberty interest "to make decisions concerning the care,
custody, and control of their children."  Troxel, 120 S. Ct. at 2060
(citations omitted).  In other words, the right to direct and control a
child's upbringing is a "fundamental" liberty interest protected by the Due
Process Clause.  Id.  We understand this fundamental right to be firmly
established.{12}  "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."  Id. at 2061 (citing Reno v. Flores, 507
U.S. 292, 304 (1993)) (emphasis added).
	[¶19]  The constitutional liberty interest in family integrity is not,
however, absolute, nor forever free from state interference.  Wisconsin v.
Yoder, 406 U.S. 205, 233-34 (1972); McNicholas v. Bickford, 612 A.2d 866,
870 (Me. 1992).  The Due Process Clause is not an impenetrable wall
behind which parents may shield their children; rather, it provides
heightened protection against state intervention in parents' fundamental
right to make decisions concerning the care, custody, and control of their
children. See Parham v. J.R., 442 U.S. 584, 603-05 (1979).  That heightened
protection mandates strict scrutiny of the statute at issue.  See
Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997); Sch. Admin. Dist.
No. 1 v. Comm'r, Dep't of Educ., 659 A.2d 854, 857 (Me. 1995).  Strict
scrutiny requires that the State's action be narrowly tailored to serve a
compelling state interest.  Flores, 507 U.S. at 301-02; Butler v. Supreme
Judicial Court, 611 A.2d 987, 992 (Me. 1992).  
	[¶20]  Therefore, because a fundamental liberty interest is
unquestionably at stake here, we must determine first, whether that
fundamental liberty interest is interfered with, by the State, in the
context of the Grandparents Visitation Act.  If so, we apply strict scrutiny
to the portions of the Act before us to determine whether the State has
narrowly tailored its involvement in the family to serve a compelling
state interest.

	(i)  State Intervention in a Fundamental Right

	[¶21]  We conclude, and no party has challenged, that the
Grandparents Visitation Act provides a mechanism by which the State may
intervene in the basic exercise of parents' rights to determine the care
and custody of their children.  The Act allows the courts to determine
whether parents will be required to turn their children over to the
grandparents against the parents' wishes.  The power of the court to
adjudicate such disputes and to enforce its own orders constitutes state
involvement in a way that clearly implicates parents' fundamental liberty
interests in the care and custody of their children.{13}

	(ii)  Compelling State Interest
	[¶22]  Because a fundamental liberty interest is interfered with by
the State, the State is required to demonstrate that its actions serve a
compelling state interest.  The District Court, in its thoughtful analysis
regarding the necessity of a compelling state interest, noted that "[i]f . . .
the Act provided a requirement of harm, then it would advance a
compelling state interest and pass constitutional muster."  Concluding
that the absence of a "harm" element eliminated any compelling state
interest, the court held the Act to be unconstitutional.
	[¶23]  An element of "harm" in the traditional sense is not, however,
the only compelling state interest extant when matters relating to the
welfare of children are under scrutiny.  For example, the State's
compelling interest in requiring school attendance or restricting child
labor does not derive exclusively from the State's interest in preventing
"harm," but instead stems from the State's broader parens patriae
interest in the well-being of children.  See Prince v. Massachusetts, 321
U.S. 158, 166-67 (1944); Pierce v. Soc'y of Sisters, 268 U.S. 510, 534
(1925); see also In re Sarah T., 629 A.2d 53, 55 (Me. 1993) (finding a
compelling state interest in achieving timely permanence for abused
children).  Thus, although the threat of harm to a child is certainly
sufficient to provide the State with a compelling interest,{14} harm
consisting of a threat to physical safety or imminent danger is not a sine
qua non for the existence of a compelling state interest.  We agree with
the trial court, however, that something more than the best interest of
the child must be at stake in order to establish a compelling state
	[¶24]  We are not called upon here to define all instances where a
compelling interest could be demonstrated by the State.  We need only look
to the facts before us to determine whether that level of interest exists,
and for that determination we are guided by our own language:  "The
natural right of a parent to the care and control of a child should be
limited only for the most urgent reasons."  Merchant v. Bussell, 27 A.2d
816, 818 (Me. 1942) (emphasis added).
	[¶25]  We conclude that "urgent reasons" exist, where, as here, a
grandparent who has functioned as a parent to the child seeks continued
contact with that child.  The Rideouts acted as Keiko and Roman's parents
for many years.  Keiko spent so much of her first seven years being
parented by her grandparents that she called the Rideouts "Mom and Dad"
and referred to her own mother as "her aunt."
	[¶26]  The cessation of contact with a grandparent whom the child
views as a parent may have a dramatic, and even traumatic, effect upon
the child's well-being.  The State, therefore, has an urgent, or compelling,
interest in providing a forum for those grandparents having such a
"sufficient existing relationship" with their grandchildren.  Here the
Rideouts have acted as parents for their grandchildren, and therefore may
seek continued access to those children.  This interest springs not from
any common law right of the grandparent to visitation with the child, but
from the child's significant need to be assured that he or she will not
unnecessarily lose contact with a grandparent who has been a parent to
that child.{16}  See Troxel, 120 S. Ct. at 2071 (Stevens, J., dissenting)
("There is at a minimum a third individual, whose interests are implicated
in every case to which the statute applies-the child.").
	[¶27]  When a grandparent has been the "primary caregiver and
custodian" for a child over a significant period of time, the relationship
between the child and the grandparent warrants application of the court's
parens patriae authority on behalf of the child and provides a compelling
basis for the State's intervention into an intact family with fit parents. 
Recently, this compelling interest has been recognized in several other
contexts, based upon the reasoning that a parent's fundamental liberty
interest must be balanced against a "[child's] interest in continuing to
have access to the only adult who has acted as a parent to [the child]." 
Youmans v. Ramos, 711 N.E.2d 165, 172 (Mass. 1999); see also V.C. v. M.J.B.,
748 A.2d 539, 548-49 (N.J. 2000) (holding that the State may intervene to
grant visitation over the objections of a parent where the child's
psychological parent "has stepped in to assume the role of the legal
parent who has been unable or unwilling to undertake the obligations of
parenthood"); American Law Institute, Principles of the Law of Family
Dissolution § 2.03 (Tentative Draft No. 4, 2000).{17}
	[¶28]  Thus, the State has demonstrated that it has a compelling
interest in providing a forum in which a grandparent, who has acted as a
parent to the child at issue, may seek continuing contact with the child.

	(iii)  Narrowly Tailored State Action

	[¶29]  Next, we must determine whether the State's action is
narrowly tailored to serve the identified compelling state interest.  See
Glucksberg, 521 U.S. at 721 (citing Flores, 507 U.S. at 302).  Several
aspects of the Act are central to our analysis.  First, a grandparent must
establish standing before litigation may commence on a petition.  19-A
M.R.S.A. §§ 1803(1), 1803(2)(A)-1803(2)(C).  Second, the court must
consider any objection of the parents concerning an award of rights of
visitation or access by the grandparents.  19-A M.R.S.A. § 1803(2)(D). 
Third, the court may not grant visitation if doing so would significantly
interfere with any parent-child relationship or with the parent's rightful
authority over the child.  19-A M.R.S.A. § 1803(3).
	[¶30]  Each of these requirements provides safeguards against
unwarranted intrusions into an intact family's life.  The first
requirement, that the grandparents demonstrate standing before they may
litigate their claim, provides protection against the expense, stress, and
pain of litigation, unless and until the grandparents have convinced the
court that they are among those grandparents who may pursue visits under
the Act.  19-A M.R.S.A. §§ 1803(1), 1803(2)(A)-1803(2)(C).  Trial courts
must be vigilant in their application of this requirement in order to
effectuate the Legislature's efforts to narrowly tailor the Act to serve
the compelling interest of the State.  Both the plurality in Troxel and
Justice Kennedy's dissent stressed this factor, stating 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.'"  Troxel, 120 S. Ct. at 2065 (quoting Justice
Kennedy's dissenting opinion at 2079).{18}
	[¶31]  The second protective aspect of the Act, the requirement that
the trial court give consideration to the parent's objection to visitation,
is equally important.  19-A M.R.S.A. § 1803(2)(D).  This provision gives life
to the presumption that the parents are acting in the best interests of
their child.  See Troxel, 120 S. Ct. at 2061 (citing Parham, 442 U.S. at
602).  The court may not simply consider the best interests of the child,
but must also consider and give significant weight to the parents'
position, thus preventing the court from intervening in a fit parent's
decision making simply on a best interests basis.  See id. at 2062.
	[¶32]  The third protection provides similar limits on the court's
authority, precluding the court from awarding visits or access to
grandparents unless the court finds that those visits would not
"significantly interfere" with the parent-child relationship or with the
parent's rightful authority over the child.  19-A M.R.S.A. § 1803(3).  Again,
the court must focus its attention, not solely on the determination of the
best interests of the child, but also on how the visitation would affect the
parents' relationship with that child.  Id.  If the court determines that
visits with a grandparent will significantly interfere with the parent-
child relationship, that determination precludes any further intrusion into
the parent's decision.  See id.

E.  Conclusion

	[¶33]  We conclude therefore that where the grandparents have acted
as the children's parents for significant periods of time, the Grandparents
Visitation Act serves a compelling state interest in addressing the
children's relationship with the people who have cared for them as
parents.  Because the Act is narrowly tailored to serve that compelling
interest, it may be applied in this case without violating the
constitutional rights of the parents.
	[¶34]  Accordingly, we must vacate the judgment of the District
Court.  We note with approval the District Court's effort to avoid further
delays in this matter by finding the facts and entering a visitation order
that could be effectuated in the event that our constitutional analysis
differed from that of the court.  Our conclusion that the statute can be
applied constitutionally on the facts before us is not determinative,
however, on the appropriateness of visitation itself.  Given the need for a
careful application of the restrictions of the Act and the passage of time
since the entry of the court's judgment, we remand the matter to the trial
court for further hearing.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court with instructions to remand to the
District Court for further proceedings
consistent with the opinion herein.

Majority opinion.

Concurring opinion.

Dissenting opinion.

Attorneys and footnotes.

Back to Opinions page.