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Rideout v. Riendeau, attorneys and footnotes

Attorney for plaintiffs:

Joseph M. Baldacci, Esq., (orally)
P O Box 1423
Bangor, ME 04401

Attorneys for defendants:

Jed J. French, Esq., (orally)
Frances Crary Lindemann, Esq.
Powers & French, P.A.
209 Main Street
Freeport, ME 04032 
FOOTNOTES******************************** {1} . The District Court originally found that 19 M.R.S.A. §§ 1001-1004 (Supp. 1995-96) was unconstitutional. This statute was repealed and replaced by 19-A M.R.S.A. §§ 1801-1805 (1998). The Superior Court remanded the case to the District Court for a determination of whether the recodification affected its legal analysis. The District Court found no change in the revised Grandparents Visitation Act that would alter its decision, and thus, we review the Act as it exists today. {2} . The trial court's judgment contains substantial findings of fact which the parties do not dispute. Our recitation of the facts is drawn from those findings. {3} . Neither party made an argument concerning the applicability of the Maine Constitution to the constitutional validity of the Act, and therefore, we do not address this issue on appeal. Berg v. Bragdon, 1997 ME 129, ¶ 9, 695 A.2d 1212, 1214 (holding that an issue is waived if it is not raised or preserved by the parties). See Me. Const. art. I, § 6-A. {4} . Part of the inordinate delay in the Superior Court was occasioned by a failure to comply with the briefing schedule and by a remand to permit the District Court to determine whether a recodification of the Act impacted its legal analysis. See P.L. 1995, ch. 694, § B-2 (effective date October 1, 1997). {5} . The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. As one judge has observed: What is best for children depends upon values and norms upon which reasonable people differ. Broad room for debate means a broad and unpredictable array of possible outcomes in any custody contest. That fact encourages prolonged and expensive litigation and "strategic behaviors" of the parents, neither of which usually benefits children. Honorable John C. Sheldon, Anticipating the American Law Institute's Principles of the Law of Family Dissolution, 14 Me. B.J. 18, 25 (1999) (citations omitted). {6} . In addition to a significantly different statutory framework, the facts at issue in Troxel were very different from those before us. The Troxel Court was faced with a parent who had agreed to allow the grandparents, the parents of her deceased husband, to visit with her children. Troxel v. Granville, 120 S. Ct. 2054, 2061-63 (2000). The paternal grandparents filed a visitation petition "soon after the death [by suicide] of their son." Id. at 2061. {7} . The plurality opinion and Justices Thomas and Stevens expressly recognized that parents have a "fundamental right" to the care and custody of their children. Troxel, 120 S. Ct. at 2060, 2068 (Thomas, J., concurring), 2071 (Stevens, J., dissenting). In recognition of this "fundamental right," Justice Thomas opined that the statute could not survive analysis in accordance with the strict scrutiny standard of review. Id. at 2068 (Thomas, J., concurring). Justices Souter and Kennedy recognized that parents have a constitutional right protected by the Due Process Clause. Id. at 2066 (Souter, J., concurring), 2076 (Kennedy, J., dissenting). Justice Souter voted to affirm on the basis that the statute "sweeps too broadly and is unconstitutional on its face." Id. at 2066 (Souter, J., concurring). {8} . We think it also significant that the Troxel Court gave particular notice to the expansive reading of the statute by the Washington Supreme Court, noting that the "Washington Supreme Court had the opportunity to give [the statute] a narrower reading, but it declined to do so." Troxel, 120 S. Ct. at 2061 (citation omitted). In recognition of the rapidly changing face of Maine families, we proceed with caution in this developing area of family law and refrain from announcing sweeping statements of constitutionality. {9} . Although the Act's constitutionality has been previously argued to us, we declined to consider that claim because it was not properly preserved for review. Berg, 1997 ME 129, ¶ 10, 695 A.2d at 1215. {10} . Section 1803 reads as follows in its entirety: § 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 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. 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; and J. Any other factor having a reasonable bearing on the physical and psychological well-being of the child. 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. The court may award costs, including reasonable attorney's fees, for defending or prosecuting actions under this chapter. 19-A M.R.S.A. § 1803 (1998). {11} . Although Keiko and Roman both spent years in the care of the Rideouts, their sister Mariah has spent very little time with her grandparents. The parties have stipulated, however, that the children are very close and should be treated identically for purposes of the Act. Therefore, all three of the children are treated as if they have the same "sufficient existing relationship" with their grandparents. {12} . Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) (stating that the liberty of parents includes the right to direct the upbringing of their children), Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923) (holding that the liberty protected under the Due Process Clause includes the right of parents to direct the upbringing and control the education of their children). See, e.g., Osier v. Osier, 410 A.2d 1027, 1029 (Me. 1980) (recognizing parents' "fundamental right" to the "care and custody" of their children); Danforth v. State Dep't of Health & Welfare, 303 A.2d 794, 797 (Me. 1973) (discussing the natural and fundamental rights of parents to the custody of their children). {13} . See, e.g., Connecticut v. Doehr, 501 U.S. 1, 10-11 (1991) (noting that prejudgment remedy statutes enable a party to utilize state procedures with the "overt, significant assistance of state officials," thereby involving state action substantial enough to implicate the Due Process Clause); see also Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85 (1988); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941 (1982). {14} . The State's authority over parental decisions is well established in certain areas, such as health requirements, including immunization needs, 20-A M.R.S.A. § 6354 (1993), education requirements, including a qualified schooling plan, 20-A M.R.S.A. § 5001-A (1993), and safety requirements, addressed in the Child and Family Services and Child Protection Act, 22 M.R.S.A. § 4001-4093 (1992 & Supp. 1999). See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 29-30 (1905) (upholding state's compelling interest in compulsory vaccination laws). {15} . In fact, the concept that the State may not intervene in family life merely on the basis of a best interest determination is so well established that we have explicitly directed trial courts not to reach the best interest prong in termination of parental rights cases until the State has made a showing of parental unfitness based on one of four statutory bases for termination. See In re Ashley A., 679 A.2d 86, 89 (Me. 1996). Unless the court has found the presence of one of those "harm" factors, it may not even consider the best interests of the child. See In re Leona T., 609 A.2d 1157, 1158 (Me. 1992); see also Smith v. Org. of Foster Families, 431 U.S. 816, 862-63 (1977) (Stewart, J., concurring) ("If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest, I should have little doubt that the State would have intruded impermissibly on 'the private realm of family life which the state cannot enter.'" (citation omitted)). {16} . Contrary to the assertions of our colleagues in the Concurrence, any "confluence of constitutional rights" cannot include the grandparents as separate holders of such rights. Grandparents simply do not have a general common law or constitutional right of access to their grandchildren. Indeed, it was the lack of any legal authority for securing the court's assistance in obtaining visits between grandparents and their grandchildren that led the Legislature to enact the very statute before us today. "As a general matter . . . contemporary state-court decisions acknowledge that '[h]istorically, grandparents had no legal right of visitation.'" Troxel, 120 S. Ct. at 2077 (Kennedy, J. dissenting) (citation omitted). Id. at 2061; Conservatorship of Justin R., 662 A.2d 232, 234-35 (Me. 1995) (affirming a denial of the grandparent's guardianship petition in the absence of parental unfitness); Stanley v. Penley, 46 A.2d 710, 712 (Me. 1946) (declining to award custody of children to maternal grandparents when father was fit and present). Rather, grandparents' rights, if any, stem derivatively from the "recognition . . . that children should have the opportunity to benefit from relationships with statutorily specified persons-for example, their grandparents." Troxel, 120 S. Ct. at 2059 (emphasis added). "Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties." Id. (emphasis added). Thus, although a grandparent can and should be a positive influence in a child's life, the biological relationship alone does not provide a basis for a legally enforceable interest in a child whose parents are present and fit, see In re Sterling N., 673 A.2d 1312, 1314-15 (Me. 1996), and whose relationship with the grandparent is not of a "parental nature," see Troxel, 120 S. Ct. at 2059. {17} . Because we address only the facts before us, we do not determine whether the State would have a compelling interest in circumstances where the grandparents assert a different type of "sufficient relationship." 19-A M.R.S.A. § 1803(1)(B). Ordinarily, the State's interest in parents' childcare decisions is merely "de minimis" and does not provide a compelling basis for state intervention. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Stanley v. Illinois, 405 U.S. 645, 657-58 (1972). {18} . The Maine judiciary has been sufficiently concerned about the detrimental effects litigation has on families in turmoil that a Commission was formed to seek alternatives to litigated resolutions. See Sumner Bernstein, Nonadversarial Administrative Forum Report, 11 Me. B.J. 366 (1996); see also Dana E. Prescott, Parental Conflict and the Appointment of Referees in Child Custody Cases, 15 Me. B.J. 44 (2000) ("One of the daunting challenges facing the legal system at the end of the millennium is to find effective ways to protect children from the chaos and conflict created by feuding parents in custody cases."). Indeed, as the Maine Commission on Gender, Justice, and the Courts concluded in a recent report, "[r]esolution of custody disputes through the adversarial process is, among other things, damaging to the psychological well-being of children and parents." Judicial Branch Performance Council, Report on the Implementation of the Recommendations of the Maine Commission on Gender, Justice, and the Courts 9 (2000). {19} . The District Court in the present case took evidence, addressed the merits hypothetically, and purported to find the Act unconstitutional as applied. In fact, the court concluded that a showing of harm to the children is essential to justify any interference with parental rights, and that the best interests standard alone is never sufficient. In effect, the court found that the Act could never be applied constitutionally and fails a facial challenge, see City of Chicago v. Morales, 527 U.S. 41, 63-64 (1999); United States v. Salerno, 481 U.S. 739, 745 (1987). {20} . Justice Souter voted to affirm on the basis that the statute "sweeps too broadly and is unconstitutional on its face." Id. at 2066 (Souter, J., concurring in the judgment). Justice Thomas voted to affirm on the basis that the statute could not survive analysis in accordance with the strict scrutiny standard of review. See id. at 2068 (Thomas, J., concurring in the judgment). {21} . The Act seeks to minimize the potential burden on parents by requiring the court to first consider a petition summarily on affidavits before ordering an evidentiary hearing. Only if the court determines on the basis of the petition and the affidavits that "it is more likely than not that there is a sufficient existing relationship or . . . that a sufficient effort to establish one has been made," should the court proceed to a hearing. 19-A M.R.S.A. § 1803(2)(C). Here, the parents responded to the grandparents' affidavit with a motion to dismiss. The court leapfrogged over the procedural requirements of the Act and went directly to the merits and the constitutional challenge. In addition, the Act authorizes the court to award "costs, including reasonable attorney's fees, for defending or prosecuting actions . . . ." § 1803(6). Because of constitutional sensitivities and practical considerations, courts should be scrupulous in following the procedures specified in the Act. {22} . We have repeatedly held that both the Maine and Federal Constitutions recognize "a fundamental and important" right of parents to raise their children. In re Heather C., 2000 ME 99, ¶ 23, 751 A.2d 448, 454; State v. Wilder, 2000 ME 32, ¶ 20, 748 A.2d 444, 449; In re Christmas C., 1998 ME 258, ¶¶ 10-11, 721 A.2d 629, 631-32; In re Alexander D., 1998 ME 207, ¶ 14, 716 A.2d 222, 226-27. This fundamental liberty interest of parents to raise their children includes the right "to direct the upbringing and education of children." Wilder, 2000 ME 32, ¶ 20, 748 A.2d at 449 (quoting Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925)). See also Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923). {23} . George Orwell, 1984 (Harcourt Brace 1983 ) (1949). {24} . The number four would occur if each grandparent divorced and remarried. The number could be greater where, as here, the family that is the target of litigation includes several children by different fathers. {25} . 19-A M.R.S.A. § 1803(6) states: 6. Cost and fees. The court may award costs, including reasonable attorney's fees, for defending or prosecuting actions under this chapter. 19-A M.R.S.A. § 1803(6) (1998). {26} . See Stanley v. Illinois, 405 U.S. 645, 657-58 (1972) (stating that the government has only a "de minimis" interest in child-care decision making by a fit parent). {27} . The deceased parent provision of the law, 19-A M.R.S.A. § 1803(1)(A) (1998), is not at issue here, and this opinion does not address the constitutionality of that provision. {28} . The provisions of the Grandparents Visitation Act implicated in this case are section 1803(1)(B), authorizing lawsuits by grandparents who allege they have "a sufficient existing relationship" with a grandchild, and section 1803(1)(C) authorizing lawsuits where there is no existing relationship, but the grandparents allege they have made an effort to establish a relationship. 19 M.R.S.A. §§ 1803(1)(B), (1)(C). Subparagraph B is asserted to apply to Keiko and Roman. Subparagraph C must apply to Mariah, who the trial court found to have a relationship only "derivatively" because of the relationships with the other children and because she had some relationship with the grandparents in the first three months of her life-now seven years ago. This relationship is certainly not a "sufficient existing relationship" under subparagraph B unless we strain the definition of that term beyond the breaking point. In fact, considering the complete lack of an existing relationship which the trial court found, a relationship that has been non-existent for all the children since 1994, subparagraph C is the only proper basis to press the claim to force access to all three children. A past failed relationship is not a "sufficient existing relationship," unless this term in subparagraph B is given a meaning outside the common understanding of the term. {29} . Ante, ¶ 32 (Court's opinion).

Majority opinion.

Concurring opinion.

Dissenting opinion.

Attorneys and footnotes.

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