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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ross v. Bauman (7/24/2015) sp-7024

Ross v. Bauman (7/24/2015) sp-7024

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                   

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



STEFANIE ROSS and JOHN BAUMAN, )  

                                                         )    Supreme Court No. S-15473  

                           Appellants,                   )  

                                                         )    Superior Court No. 3KN-13-00241 CI  

         v.                                              )  

                                                         )    O P I N I O N  

CARL BAUMAN,                                             )  

                                                         )    No. 7024 - July 24, 2015  

                           Appellee.                     )  

                                                         )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Kenai, William F. Morse, Judge.  



                  Appearances:    Jennifer  Wagner  and  Timothy  W.  Seaver,  

                  Seaver & Wagner, LLC, Anchorage, for Appellants.  Roberta  

                  C.  Erwin  and  Robert  C.  Erwin,  Palmier  ~  Erwin,  LLC,  

                       

                  Anchorage, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                 

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  A    grandparent        petitioned      for    restriction-free      visitation     with     his  



grandchildren after they moved out of state.  The parents conceded that visitation with  

                                                                                           



the grandparent was in the children's best interests, but opposed court-ordered visitation,  

                                                                         



stating that they had never denied reasonable visitation and would continue to allow  



visitation  with  some  restrictions.    Without  finding  any  of  the  parents'  visitation  


----------------------- Page 2-----------------------

restrictions unreasonable or any history of denying reasonable visitation, the superior  



                                                                                           

court entered an order requiring "reasonable" visitation.  The parents appealed, arguing  



                                                                                

that the order violated their constitutional rights to the care, custody, and control of their  



children.  Immediately after oral argument we vacated the superior court's visitation  



                                                            

order.  We now explain the basis for that order, and because the superior court's findings  



                                                                                                       

preclude the possibility that a constitutional visitation order could be entered based on  



                                                                                  

the record in this case, we also dismiss the grandfather's visitation petition in its entirety.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Stefanie Ross and John Bauman are the unmarried parents of two young  



                                                                             

children.    In  September  2012  Stefanie  and  the  children  moved  from  Homer  to  



                        

Washington to live with her family while her grandparents reached the ends of their  



lives.  In December 2013 John joined Stefanie and the children in Washington.  They  



plan to stay there indefinitely.  



                                                                         

                    Carl Bauman is John's father, and Carl resides in Soldotna.  When the  



                                                                                                       

children lived in Homer, Carl occasionally visited with them.  Carl's domestic partner,  



                                                                   

Simone, was a point of contention:  Stefanie and John did not want Simone around the  



                                                                                                          

children; Carl disagreed with this choice; and Simone continued to be present during  



many of Carl's visits with the children.  Stefanie and John also disapproved of other  



occupants of and visitors to Carl and Simone's home, including Simone's daughter.  



                                                

                    After Stefanie and the children moved to Washington, Carl had no contact  



with them.  The reason for this lack of contact is contested.  In April 2013 Carl attempted  



to visit the children in Washington during a two-night stop there when he and Simone  



                                                                  

were returning to Alaska from Florida.  It is unclear if Carl waited until he was in town  



            

to call Stefanie and her family to coordinate visitation or if he began calling sooner.  



                                         

Stefanie's grandfather was dying, and Stefanie did not coordinate visitation with Carl.  



                                                             -2-                                                        7024
  


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Carl dropped off gifts for the children at the house where Stefanie was staying, but did  



not see them or her.  



                                                                                           

                   At some point after the initiation of these court proceedings Carl began  



                                                                                                          

having telephone calls with the children, but he had no plans to visit the children again  



until summer 2014.  



          B.       Proceedings  



                   1.        Pre-evidentiary hearing proceedings  



                                                                                  

                   In  March  2013,  shortly  before  the  failed  April  visit  noted  above,  Carl  



petitioned  for  grandparent  visitation,  seeking  "two  weeks  of  unfettered  grandparent  



visitation annually, in Alaska or another state of [Carl's] choice."  In their answer to  



Carl's petition, Stefanie and John asserted that Carl had never been denied reasonable  

visitation  and  that  AS  25.20.0651  (Alaska's  grandparent  visitation  statute),  the  U.S.  



                                                                                                          

Constitution, and the Alaska Constitution all require such a denial before a grandparent  



can successfully petition for visitation.  



                                                                   

                   The court held a status hearing in September.  Carl stated that the later- 



                                                                                                                 

planned evidentiary hearing could take longer than he anticipated if Stefanie and John  



                                                                                                               

were  to  "challenge  the  constitutionality  of  [AS  25.20.065]."                              Stefanie  and  John  



          1        Providing in pertinent part:  



                   Except as [otherwise] provided . . . , a child's grandparent  

                   may  petition  the  superior  court  for  an  order  establishing  

                                                                     

                   reasonable rights of visitation between the grandparent and  

                   child if  

                                



                             (1)  the  grandparent  has  established  or  attempted  to  

                                   

                   establish ongoing personal contact with the child; and  



                             (2) visitation by the grandparent is in the child's best  

                   interest.  



AS 25.20.065(a).  



                                                             -3-                                                      7024
  


----------------------- Page 4-----------------------

responded that they would likely "make constitutional arguments . . . because [Carl] has  



                                                                       

not been denied access.  He's been denied the access that he wants."  Carl argued that if  



a  motion  regarding  constitutionality  were  made,  he  would  need  time  between  the  



                                                                          

motion's filing and the final hearing to conduct unexplained "medical" discovery.  The  



                                                                     

court set a December deadline for "motions regarding the statute," including "motions  



regarding the parameters or validity of the grandparent visitation statute."  The record  



contains no motions filed between the September hearing and the December deadline.  



                                                                                                  

                    In  April  2014  the  parties  filed  hearing  briefs.                        Carl  detailed  his  and  



                                                                     

Simone's interactions with the children.  He also highlighted parenting disputes he and  



                                                                                                                       

Simone had with Stefanie and John:  Simone celebrates Easter, but Stefanie does not;  



                                                                                              

Stefanie "enforced a rigid diet on the children," and Simone would offer dessert to the  



children  in  contravention  of  the  diet;  Carl  requested  overnight  visits,  but  John  and  



                                                     

Stefanie refused; Carl and Simone once bought many new outfits for one of the children,  



                                                                                                      

but Stefanie only gave some to the child because all would be "too much"; and Stefanie  



and John do not like their children calling Simone "Grandma Simone."  Carl argued that  



                                                                             

"absent a court order, meaningful visitation is not likely to occur," noting his advancing  



age and the physical distance between him and his grandchildren.  



                     Stefanie  and  John  argued  that  "[b]efore  the  Court  [could]  order  any  



                                          

grandparent visitation over the parents' objection, [Carl would have to] establish by clear  



                                                                                                     

and convincing evidence that [Stefanie and John] are unfit to make visitation decisions."  



According to Stefanie and John, absent this showing, ordering visitation would violate  



                                                           

their constitutional rights as parents.   Stefanie and John asserted that they reasonably  



                                                                                         

forbade contact between Simone and the children because of Simone's criminal history,  



                                                                             

mental health issues, alcoholism, drug problems, and undesirable associates.  Stefanie  



                                                          

and John also stated that they had not denied Carl visitation (without Simone), that after  



                                                                                    

the children moved to Washington Carl had not sought visitation with them before filing  



                                                                -4-                                                         7024
  


----------------------- Page 5-----------------------

                                    

the petition, and that after filing the petition Carl had not attempted to make telephone  



contact with the children for six months.  



                      2.         Evidentiary hearing  



                                                                                           

                      The superior court began the evidentiary hearing by attempting to restate  



the parties' positions, identifying the crux of the dispute as whether Carl's visitation  



                                                             

could include Simone.  Stefanie and John clarified that - because they were fit parents  



                                                                                                    

making reasonable visitation decisions - they opposed any court-ordered visitation as  



                                                                                            

an infringement on their constitutional rights as parents. The court repeatedly questioned  



Stefanie and John's "philosophical objection" to court-ordered visitation, focusing on  



                                                                                    

"practical" matters including the physical distance between Carl and the children and a  



hypothetical future where Stefanie and John might unreasonably deny Carl visitation.  



                                                                                                                               

                      The parties then argued what standard could constitutionally be applied in  



determining  whether  to  order  grandparent  visitation.    Carl  asserted  that  the  proper  



                                                                                                      

standard was whether the grandparent had proved by clear and convincing evidence that  



                                                                                   

"visitation was in the best interest of the children." Stefanie and John asserted that Carl's  



simple "best interest" standard was constitutionally insufficient to protect fit parents'  



                                                                                                                            

reasonable visitation decisions.  They argued that the correct standard was whether the  



                                         

grandparent had proved by clear and convincing evidence that the "parents are unfit to  



                           

make visitation decisions" or that the fit parents' visitation decisions were unreasonable  



                                                                                                                    

and detrimental to the children.  Although the court announced that it would detail the  



                                                                                                                                       

final standard in a later written opinion, it appeared to agree with Carl's standard.  The  



                                                                              

court also assumed that it would be in a child's best interest to visit with a grandparent,  

barring a showing of the grandparent's unfitness.2  



           2          For instance the court stated:  "[W]hy would it ever be in a child's best   



interest not to have a grandparent relationship? . . .                               [I]f the grandparent . . . [is] taking     

                                                                                                                        (continued...)  



                                                                     -5-                                                              7024
  


----------------------- Page 6-----------------------

                   Stefanie  and  John  stipulated  that  Carl  had  established  an  ongoing  



                                                                                                              

relationship with the children, as required under AS 25.20.065(a)(1), but added that  



                                                             

"they strongly believe[d] . . . [Carl] chose to reduce his contact with the kids in exchange  



for filing [the visitation] petition."  Then modifying his initial request for "unfettered"  



                                                                                                      

visitation, Carl agreed that any visitation order could exclude Simone and her children.  



                   The superior court detailed possible visitation orders while questioning  



Stefanie;  although  agreeing  with  the  court's  stated  goals,  Stefanie  maintained  her  



position that any court order would be overly intrusive.  The court responded that the  



parents and Carl were "suspicious" of each other and that there was the "potential for  



                                                               

more problems" without a court order, but that after trust was restored under an order,  



the order could be lifted because it would then be "unnecessary."  When asked by the  



court what her rules for the children would be during a visit with Carl, Stefanie stated  



                                                                              

that the children's sugar intake must be minimal. The court responded, "I mean, you got  



                                                                                                  

to let the guy give the kid a bowl of ice cream."  The court earlier had also stated that  



"kids deserve to get sort of spoiled by grandparents" by, for example, going to bed late  



and eating extra sugar.  



                                                                                                        

                   At the end of the hearing's first day the court stated that it had a "tentative  



                      

decision" and "[s]ort of the behavioral order" in mind.  After receiving the court's draft  



                                               

visitation order on the second  day, Stefanie and John objected to it.  During John's  



testimony the court asked why it should trust him to allow visitation and questioned why  



he  did  not  reach  out  to  ensure  Carl  visited  with  the  children  after  the  move  to  



                              

Washington.  John responded that he wanted his children to have a relationship with  



                                                                                      

Carl,  but  "[t]he  last  time  we  spoke  [Carl]  made  it  very  clear  he's  rejected  all  our  



          2        (...continued)  



care of [a grandchild] responsibly[,] [w]hen would it ever be detrimental to a child to  

have a grandparent?"  



                                                             -6-                                                      7024
  


----------------------- Page 7-----------------------

                                                                               

proposals. . . . He wants things his way.  There's no wiggle room.  That's why we're here  



                                                                                           

in court today.  He doesn't like our answer."  The  court asked John what he would  



consider "reasonable" visitation, and John refused to give a definite answer, stating that  



he did not want to limit the time his children had with Carl.  John also stated, "I don't  



                                                                                                  

believe anybody is qualified to be [our children's] parents more than we are."  The court  



                                                                                                                

interjected, "[C]omments like 'replacing us as parents' [are] indicative of a complete  



misperception of what's going on here."  



                                                                            

                     During closing arguments Stefanie and John argued that the best way for  



                                         

Carl to get visitation with the children would be to communicate directly with Stefanie  



                                                                                          

and John, which he failed to do before filing this case. The court interjected that Stefanie  



                      

and John had a responsibility to reach out to Carl too, that it was "troubled by both sides'  



                                                                                                 

stubbornness,"  and  that  "the  inertia  of  .  .  .  distance"  would  make  rekindling  Carl's  



                                              

relationship with the children "very difficult" without "active, affirmative efforts on both  



                                                                                                                    

sides."  Stefanie and John argued that only because they "were willing to put up with  



[Carl]  and  turn  aside  over  and  over  again  because  they  felt  it  was  an  important  



                                                                                                             

relationship" did Carl have such a loving relationship with the children.  They contended  



the court was unfairly burdening them by presuming they should have sought visitation  



                                                                                                 

between their children and someone who "sued them instead of picking up a phone" and  



calling to coordinate a visit. 



                                                                                         

                     When Stefanie and John again argued that a mere best interests standard  



                                 

would insufficiently protect their constitutional rights, the superior court again asked  



                                                                  

about a hypothetical future where Stefanie and John refused Carl visitation for no reason.  



                                                                                      

They responded that they had never refused visitation without a reason and even had  



                                                                                                     

allowed visitation despite their stated visitation boundaries being disregarded.  Stefanie  



                                                                

and John argued that it would make no sense for the court to take their fundamental  



constitutional right to control visitation "just in case in the future they do something  



                                                                -7-                                                          7024
  


----------------------- Page 8-----------------------

                                                                                                              3 

                                                        

else."  They stated that, based upon our decision in Evans v. McTaggart ,  the proper  



                                                                                

standard to judge parental decision making in such a hypothetical circumstance would  



                                                                                              

be whether the parents' choice is "plainly contrary to the child's best interests."  Stefanie  



and John argued that the court should not issue an order  in line with their visitation  



choices but, instead, should issue no order.  



                    The  superior  court  stated,  "I'm  not  understanding  the  objection  to  the  



                                                                                                

phenomenon of an order."  Stefanie and John argued that issuing an order would convey  



to Carl and other uncooperative relatives that they do not have to communicate or work  



                                                                                                                  

with parents - or respect parents' reasonable restrictions. They also replied:  "What the  



          

court is suggesting is that for the next 12 years this court is going to be overseeing  



whether or not there's visitation for these kids and . . . what the restrictions ought to be."  



                                                                   

The superior court responded:  "I can assure you I hope with all of my heart that that is  



not the case."  



                    3.        Visitation order  



                    The  superior  court  issued  a  visitation  order  the  day  after  the  hearing  



concluded, entitled "First Visitation Order," granting in part and denying in part Carl's  



petition:  



                              1.        Carl  .  .  .  shall  have  reasonable  in  person  

                                                             

                    visitation with his paternal grandchildren . . . in Washington.  



                              2.        Carl . . . shall have reasonable telephonic and  

                    Skype (or its equivalent) visitation with [the children].  



          3         88 P.3d 1078, 1089 (Alaska 2004) ("[S]pecial weight must be given to a  



fit parent's determination as to the desirability of visitation with third parties.  We believe  

                  

that this can be accomplished by imposing on the third person the burden of proving that  

                                                                    

visitation by the third person is in the best interests of the child and by requiring that this  

                                                                                     

be  established  by  clear  and  convincing  evidence.                            This  would  provide  effective  

                                                                                           

protection for a parent's choice, except where the choice is plainly contrary to a child's  

                 

best interests." (footnote omitted)).  



                                                              -8-                                                        7024
  


----------------------- Page 9-----------------------

                                     3.           Carl    shall    not    allow  Simone    .    .    .    or  [her  

                         daughter] to have direct or indirect contact with the children.         



                         The  court  stated  that  "Stefanie  and  John  do  not  oppose   Carl  having  



visitation  with  the  children,"  but  recognized  that  they  challenged  the  legality  of  a  



                                                                                                                                          

visitation order in their case.  The court stated, "There is no dispute that Stefanie and  



John are each a fit parent," adding:  



                         Had Carl claimed that either parent was unfit or had made  

                         unfit decisions . . . , the court would have found that each  

                         was, in general, a fit parent.  None of the specified decisions,  

                         even if unwise (and the court is not finding that any particular     

                         decision was), call[s] into question the fitness of either parent.   



                         Regarding the legal standard, the court stated, "[A grandparent visitation]  

                                                                                        



order is constitutional if the moving party shows 'that visitation [is] in the best interests  

                                                                               



of the children by clear and convincing evidence,' " citing our decision in Hawkins v.  



                  4  

                                                                  

 Williams.   Stating that "[t]he mere fact of a visitation order does not necessarily violate  



the due process rights of a parent," the court added in a footnote:  



                                                                                                  

                         The court notes that while the parents' desire to be free from  

                         a  court  order  may  be  understandable,  they  will  always  be  

                         subject  to  the  law  and  the  possibility  of  a  grandparent's  

                         attempt to exercise his or her statutory rights.  Even if the  

                         court declined to issue a visitation order on a finding that the  

                                                                                                    

                         parents  will  voluntarily  allow  Carl  to  visit  the  children,  if  

                         [Carl] believes that [the parents] are not acting in the best  

                                                       

                         interests  of  the  children  because  they  are  denying  [the  

                         children] (and him) reasonable visits, then he can file a new  

                         motion pursuant to AS 25.20.065. To the extent that Carl can  

                                                                                               

                         always file such a motion, [the parents] will always be subject  

                                                                                                         

                         to  judicial  scrutiny.    The  absence  of  an  order  provides  

                         illusory freedom from future judicial involvement.  



            4            314 P.3d 1202, 1205 (Alaska 2013).  



                                                                              -9-                                                                      7024  


----------------------- Page 10-----------------------

                       The superior court also explained its understanding of how - after finding                     



that a visitation order should issue because visitation has been proven to be in the best       



interests  of  the  child  -  a  parent's  constitutional  rights  must  be  considered  when  



fashioning the terms of the order:  



                                                                   

                       The court construes an  . . . implicit lesson from Hawkins ,  

                                                                               [ ] 

                                                                                5  

                       Evans , and Troxel[ v. Granville]    that guides its construction  

                       of  AS  25.20.065(a)  and  the  contents  of  a  visitation  order.  

                       Once it has determined that visitation is in the best interests  

                       of a child, the court is not entirely free to impose "reasonable  

                                

                       rights of visitation between the grandparent and child[.]"11  



                       The rights of visitation must be more than reasonable; they  

                       must be narrowly fashioned to protect the parent's rights as  

                       much as is possible (consistent with the best interests of the  

                       child).  Thus, a condition or right of visitation that may be  

                                                                                                                    

                       reasonable in a dispute between parents is not necessarily  

                       permissible between parents and a grandparent.  Even if the  

                                              

                       condition is reasonable between parents and grandparents, the  

                       court should be careful not to impose a right or condition that  

                                  

                       is too restrictive of the parents' rights.   By fashioning only  

                                                                                               

                       narrowly tailored rights or conditions of visitation, the court  

                       takes  care  to  give  the  requisite  "special  weight"  to  the  

                       parents' determination as to the desirability of visitation.  



                                   11          AS 25.20.065(a).  The authority of the court to  



                       order  "reasonable  rights  of  visitation"  is  limited  by  the  

                       requirement that the terms of the order be reasonable.  The  

                       court's  statement  that  it  "is  not  entirely  free  to  impose  

                        'reasonable rights of visitation,' " refers not to the limits of  

                       reasonableness,  but  to  additional  constraints  necessary  to  

                       protect the parents' constitutional rights.  



            5           530 U.S. 57 (2000).  



                                                                        -10-                                                                   7024  


----------------------- Page 11-----------------------

                            Under the heading "The Best Interests of the Children," the superior court              



stated, "[a]ll parties agree that it is in the best interests of [the children] to have visitation                                                  



with Carl," but that "[i]f they had not agreed, the court would have [made] such a finding                                                                 



by clear and convincing evidence."  The court found "by clear and convincing evidence       



that a visitation order is necessary to ensure that Carl actually visits his grandchildren,"   



adding an extensive explanation of its plans and reasoning:  



                                                                                              

                             [The court] does not find that a detailed visitation schedule or  

                                                         

                            specification of visitation rights is necessary now, or in the  

                                                                     

                            near  term,  say  in  the  next  year.    The  court  will  require  

                                                                                                      

                            reasonable visitation.  The court is willing to give the parents  

                                                                

                            an       opportunity                  to      demonstrate                   that        they         will        permit  

                            reasonable visitation.  



                                           . . . .  



                                                                                   

                                           .  .  .  The  children  have  had  limited  telephonic  and  

                                                                        

                            almost no in person contact with Carl in 16 months.  Now is  

                            not the time to begin overnights.  If they are allowed, either  

                            by       the        parents            or       the       court,          there          first       must           be       a  

                            demonstration  of  Carl's  capacity  to  care  for  the  children  

                            overnight in the physical environment . . . where that would  

                                                                

                            be proposed to occur.  There must also be a demonstration of  

                                                                           

                            the children's comfort with visits that have occurred and the  

                                                                                                                         

                            proposed arrangement. 14 



                              



                                           14  

                                                                                                                             

                                                         The court is not setting these as conditions, but  

                                                                                                                    

                            only as illustrations of the evaluation that the decision maker  

                            whether the parents or the court might undertake.  If the court  

                                                                                                                                               

                            is presented with a future motion for overnights, then it will  

                            make  the evaluation necessary given the circumstances as  

                            they then exist.  



                            Although  "not  overrid[ing]"  Stefanie  and  John's  preference  that  they  



supervise Carl's visits with the children, the superior court added a caveat:  "The court  



observes that at some point it is likely that Carl should be trusted to care for the children  



                                                                                       -11-                                                                                  7024
  


----------------------- Page 12-----------------------

for a number of hours without parental supervision.  At some point a continued refusal  

                                               



to allow unsupervised visitation will be found to be unreasonable."  The court clarified  



that, at present, it was requiring only "reasonable" visitation and not unsupervised or  

                                                                               



overnight visitation, but that it would expect visitation conditions to change over time:  

                                                                                    



                    As there are successful visitations and the children mature,  

                    the  frequency,  duration,  and  conditions  of  the  visitations  

                    would  typically  change  to  reflect  past  success.    As  the  

                                

                    children grow their needs change and the details of what type  

                                                                                                 

                    of visitation will be needed to change [sic] in order to allow  

                    them to have a rich relationship with Carl.  



                    The  superior  court  explained  the  reasoning  behind  its  finding  that  a  

                                                                                                        



visitation order was necessary to ensure visitation between Carl and the children, finding  

                                                             



fault with all parties' behavior and focusing upon the children's best interests:  



                              The relationships between Carl and his son and Carl  

                    and   Stefanie   have   soured   over                  time.      The   move   to  

                                                                           

                    Washington has enabled some of the wounds to heal or at  

                                                                               

                    least not to be re-opened.  But all three adults have to bear  

                                                                                             

                    some responsibility to achieve the mutual goal of fostering a  

                                                                         

                    good  relationship  between  Carl  and  the  children.                          All  the  

                                                                                                     

                    adults      must       bear     some       responsibility          for    the    nearly  

                    nonexistent interaction between Carl and the children since  

                    Stefanie moved to Washington.  It would be unacceptable to  

                                                                      

                    allow the poor communication between Carl and the children  

                                                                    

                    that occurred in 2012-13 to  continue for the remainder of  

                                                                 

                    2014.  



                              The court finds that it is unlikely that visitation will  

                    improve or even occur unless there is a visitation order in  

                    place.  The failure of Stefanie or John to reach out to Carl to  

                                                                                            

                    facilitate   contact,   much   less   visitation,   in   2012-13   is  

                    troubling.    The  court  appreciates  that  when  Stefanie  first  

                                                                                           

                    moved she was preoccupied with the likely imminent deaths  

                                                                              

                    of her grandparents.  The court appreciates that the parents  

                                                                      

                    did not unreasonably perceive the filing of the petition to be  

                                 

                    a challenge to their authority and an act that was in no small  

                                                                            



                                                              -12-                                                         7024
  


----------------------- Page 13-----------------------

                   part motivated by a power struggle between Carl and them.  

                                                            

                   But at some point the best interests of the children have to  

                               

                   return to the forefront.  That can only be accomplished by the  

                                                                              

                   parents setting aside their anger at Carl and facilitating the  

                    grandparent relation.  



                             This is not to suggest that they are more responsible  

                    for the state of affairs than is Carl.  But the obligations of  

                                                                                 

                   parenthood          require      compromise           when      compromise           is  

                   necessary  to  achieve  what  is  in  the  best  interests  of  the  

                    children--here         the     restoration       and      continuation         of    a  

                                                                                                  

                   relationship with Carl.  



                             If he is to have any hope of regaining his relationship  

                                             

                   with his grandchildren, he must repair his relationship with  

                                                                              

                   John  and  Stefanie.    That  can  only  be  done  if  he  develops  

                    some empathy about their perceptions of his actions.  The  

                   petition,  even  though  primarily  (though  not  exclusively)  

                   motivated by a desire to see the children, was an insult to the  

                                                    

                   parents.        It  was  foreseeable  that  it  would  damage  his  

                                   

                   relationship  with  Stefanie  and  especially  John.    Carl's  

                   blindness   to   why   they   would   reasonably   question   his  

                                                                     

                    insistence that [Simone] be accepted by them is troubling.  

                    Carl is entitled to love and live with whomever he pleases.  

                   But he cannot expect the parents of young children not to  

                               

                   protect them from her faults or the troubling behaviors that  

                   her extended family and some of her friends have exhibited  

                                        

                    in his home, around Stefanie, John and Carl's other children,  

                                                               

                    and in the community.  John and Stefanie would be remiss  

                                    

                   not to restrict the access of these people to [their children].  

                    The  court  will  allow  the  parents  to  continue  to  play  the  

                   primary role in protecting their children and deciding how  

                   that needs to be done.  Only if they act unreasonably will the  

                                                     

                    court intervene to ensure that the grandchildren have suitable  

                    access to Carl.  



                   4.        Appeal  



                    Stefanie and John argue on appeal that the visitation order violates their due  

                                                                                                       



process rights to make decisions regarding the care, custody, and control of their children  

                                                                                                            



                                                            -13-                                                       7024
  


----------------------- Page 14-----------------------

                                                                                   

                                                                                                             

under the U.S. Constitution's Fourteenth Amendment. In particular they argue that their  



                                                             

constitutional rights as parents will not be adequately protected unless Carl shows that  



                                                   

court-ordered visitation contrary to their visitation preferences is in their children's best  



interests, not merely that visitation with Carl is in their children's best interests.  



                    Carl responds that Stefanie and John's constitutional argument was waived.  



                                                

He argues that AS 25.20.065 is presumed to be constitutional and that Stefanie and John  



failed to carry their burden to prove otherwise.  Carl also argues that our decisions in  



                                6                                        7  

Evans v. McTaggart  and  Hawkins v. Williams  already have narrowed the statute's  



scope to an entirely constitutional range, such that Stefanie and John's constitutional  



                                                                                           

challenge must fail.  Carl additionally argues that the narrow fashioning of the visitation  



order itself precludes finding it unconstitutional.  



III.      STANDARD OF REVIEW  



                                                                   

                    "We . . . review constitutional questions de novo, adopting the rule of law  



                                                                                                 8  

that is most persuasive in light of precedent, reason, and policy."   "Likewise, 'whether  



                                    

the [trial] court applied the correct standard in a custody [or visitation] determination is  



                                                           9  

                                                              And "[w]hether factual findings are sufficient  

a question of law we review de novo.' " 



to support an award of custody [or visitation] to a third party is a legal issue to which we  

                                                                                                 

apply our independent judgment."10  



          6         88 P.3d at 1078.  



          7         314 P.3d at 1202.  



          8         Skinner v. Hagberg,   183 P.3d  486, 48                  9 (Alaska 2008) (footnote omitted).  



          9         Osterkamp v. Stiles,  235 P.3d 17                8,   184 (Alaska 2010) (alteration omitted  



and alterations added) (quoting Elton  H.  v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)).  



          10  

                                                               

                    Id. at 183-84 (quoting J.W.  v. R.J., 951 P.2d 1206, 1209 (Alaska 1998),  

                                                                                                              (continued...)  



                                                              -14-                                                         7024
  


----------------------- Page 15-----------------------

IV.       DISCUSSION  



          A.       Waiver  



                   Carl  argues  that  because  Stefanie  and  John  did  not  raise  a  "defense  of  



[un]constitutionality"   in   their   answer   and                   did     not   file    a   motion       challenging  



AS 25.20.065's constitutionality by the date the superior court specified, he "did not  



                                                                                                            

undertake the additional discovery he referred to [at the pretrial hearing], nor . . . cross  



                                              

examine Stephanie [sic] . . . on her previous health and the potential effects of [sic] her  



                                                                  

reasoning process."  Carl argues that Stefanie and John's hearing brief "did not challenge  



                                                                                           

the  constitutionality  of  the  statute"  and  that  the  evidentiary  hearing's  pre-testimony  



discussion "went to the nature of grandparent visitation."  He argues that the superior  



                                                                                                 

court "established with the parties that the evidentiary standard was clear and convincing  



evidence  that  visitation  was  in  the  children's  best  interests,"  and  "[t]herefore[]  the  



evidentiary standard was agreed to by the parties and any argument to the contrary has  



been waived."  



                                                                                       

                   But Stefanie and John do not argue now - nor did they before the superior  



court  -  that  AS  25.20.065  is  facially  unconstitutional.    Instead  they  argue  that  



                                                                                      11  

                                                                                            And  contrary  to  Carl's  

AS  25.20.065  is  unconstitutional  as  applied  in  this  case. 



          10       (...continued)  



overruled on other grounds by Evans v. McTaggart, 88 P.3d 1078, 1085 n.34 (Alaska  

                                               

2004)) (internal quotation marks omitted).  



          11       See State v. ACLU of Alaska, 204 P.3d 364, 372 (Alaska 2009) ("When  

                                                                                            

statutes  are  found  by  a  court  to  be  unconstitutional,  they  may  be  found  to  be  

unconstitutional as applied or unconstitutional on their face. . . . A holding that a statute  

                                                                                

is unconstitutional as applied simply means that under the facts of the case application  

                                 

of the statute is unconstitutional.  Under other facts, however, the same statute may be  

                                                                                            

applied without violating the constitution.").  



                   Because  Stefanie  and  John  do  not  argue  that  AS  25.20.065  is  facially  

                                                                                                          (continued...)  



                                                            -15-                                                      7024
  


----------------------- Page 16-----------------------

                                                                                           

arguments,  Stefanie  and  John  consistently  argued  during  the  proceedings  that  their  



constitutional rights would be violated if the superior court did not place a heightened  



                                                                                                               

burden on Carl.  They asserted in response to Carl's visitation petition that Carl had  



never been denied reasonable visitation and that AS 25.20.065, the U.S. Constitution,  



                                                                                              

and the Alaska Constitution all required such a denial before a grandparent could petition  



for  visitation.    Stefanie  and  John's  hearing  brief  focused  upon  the  effect  of  their  



                                                     

constitutional  rights  on  the  legal  standard  applicable  to  the  case.    The  evidentiary  



hearing's pre-testimony discussions were dominated by Stefanie and John's argument  



                                                                                                            

that their constitutional rights demanded a higher evidentiary burden on Carl than merely  



               

showing that visitation was in the children's best interests.  Stefanie and John never  



conceded that a mere "visitation is in the best interests of the child" standard sufficiently  



                                                                                               

protected their constitutional rights.  And although the court tended to disagree with  



Stefanie and John's proffered standard, it did not affirmatively "establish[] with the  



parties" that the lower standard was applicable.  



                                                                             

                    Carl is correct that the superior court set a deadline for "motions regarding  



the [grandparent visitation] statute," including "motions regarding [its] parameters or  



          11        (...continued)  



unconstitutional, Carl's argument that the statute is presumed to be constitutional and  

                           

that Stefanie and John failed to carry their burden to prove otherwise is inapplicable to  

                                                          

this case.  



                    Carl also states in his brief that the Attorney General was neither notified  

                                                                                                      

- or was untimely notified - of Stefanie and John's constitutional challenge nor given  

                                                                                                       

an opportunity to respond to it.  But the Clerk of Court notified the Attorney General's  

                                                        

Office of the constitutional argument in this case on July 16, 2014, and the Attorney  

                                                                                                                

General failed to intervene.  And Carl attaches no legal theory to his assertion.  To the  

                                                                                                                         

extent this assertion is intended to be an argument, it is therefore waived.   Gilbert v.  

Sperbeck, 126 P.3d 1057, 1062 (Alaska 2005) ("[A]n argument is considered waived  

                                                                                                    

when the party 'cites no authority and fails to provide a legal theory' for his or her  

                                        

argument." (quoting Peterson v. Ek , 93 P.3d 458, 464 n.9 (Alaska 2004))).  



                                                              -16-                                                         7024
  


----------------------- Page 17-----------------------

                                                                                                         

validity," and that Stefanie and John filed no such motion.  But it is not at all clear to us  



                                                                                         

that the order encompassed Stefanie and John's argument:  They were not arguing that  



the statute was invalid or could not be applied to them - instead, they were arguing  



                                                                                                                   

about the proper legal standard when applying the statute to this case. Stefanie and John  



included their proffered standard in their hearing brief and further pressed their argument  



at the beginning of the hearing.  At no time during the hearing did Carl express that  



Stefanie  and  John's  argument  should  have  been  made  earlier  in  a  separate  motion  



according to the court's prior order.  



                    Carl's  argument  that  he  would  have  undertaken  different  discovery  or  



questioning had he known that Stefanie and John were going to raise a constitutional  



                                                                                                        

argument  is  unconvincing.    At  the  pre-trial  hearing  Carl  conceded  that  he  was  not  



                                                                                            

seeking  custody  in  the  alternative.    Given  this  concession  it  is  unclear  why  extra  



                                                                                           12  

                                                                                                Additionally Stefanie  

discovery would have been helpful, and Carl does not clarify. 



                                                                                                  

and John raised their constitutional argument in their hearing brief and again before any  



                                              

testimony began; Carl had the opportunity to cross-examine Stefanie on her health and  



                                                                           

reasoning process, but apparently chose not to do so.  Instead Carl testified to his view  



of Stefanie's medical issues and surmised that her health affected her judgment.  



                                                                 

                    We  therefore  conclude  that  Stefanie  and  John  did  not  waive  their  



constitutional argument.  



          12        See   Osterkamp,  235  P.3d  at  185   ("[I]n  order  to  overcome  the  parental  



preference in an initial custody contest between a parent and a non-parent[,] a non-parent   

must show by clear and convincing evidence that the parent is unfit or that the welfare  

of the child requires the child to be in the custody of the non-parent." (alteration omitted)  

                                                                            

(quoting Evans v. McTaggart , 88 P.3d 1078, 1085 (Alaska 2004)) (internal quotation  

marks omitted)).  



                                                             -17-                                                       7024
  


----------------------- Page 18-----------------------

          B.        Third-Party Visitation  



                                                                                                                        13  

                                                                                                                            The  

                    Our seminal third-party visitation decision is Evans v. McTaggart . 



                

statute at issue in Evans , AS 25.20.060, allows a trial court to order visitation with "a  



                                                                                                          

grandparent or other person if that is in the best interests of the child" during a custody  

                                          14   If a grandparent has not already sought visitation during  

                                                                              

dispute between the parents.  



a custody dispute under AS 25.20.060 (or changed circumstances justify reconsidering  

                                      



a grandparental visitation determination made under AS 25.20.060), the statute at issue  

                                                                                



in this case, AS 25.20.065, allows a grandparent to petition at any time for "an order  



establishing reasonable rights of visitation" if (1) "the grandparent has established or  



                                                                                               

attempted to establish ongoing personal contact with the child" and (2) "visitation by the  



                                                                     15  

grandparent  is  in  the  child's  best  interest."                        For  Stefanie  and  John's  as-applied  



challenge, there is no meaningful difference between the two statutes.  



                                                                                                     

                    In   Evans        we     concluded          that    AS      25.20.060(a)          was      not     facially  



                         16  

                             But we also gave "a narrowing construction to AS 25.20.060 so . . .  

unconstitutional.                                                                                                              

it need not be unconstitutional as applied."17  To give "special weight . . . to a fit parent's  

                                                                                                              



          13        88 P.3d 1078.  



          14        AS 25.20.060(a).    Neither Stefanie nor John has ever sought a custody  



order regarding their children.  



          15        See AS 25.20.065(a)-(b).  



          16  

                                                                           

                    88 P.3d at 1089 ("The statute, as we construe it, does not permit any person  

at any time to seek visitation rights.  Visitation rights can only be sought in a pending  

case concerning child custody.  Further, although the statute permits a court to provide  

                                                                                                                    

for visitation based on the best interests of the child 'by a grandparent or other person'  

      

we  construe  the  latter  phrase  to  be  limited  to  third  parties  who  have  a  significant  

      

connection to the child.").  



          17        Id.  



                                                              -18-                                                         7024
  


----------------------- Page 19-----------------------

determination as to the desirability of visitation with third parties," we "impos[ed] on the     



third  person  [seeking  visitation]   the   burden  of   proving  [by  clear  and  convincing  



evidence] that visitation by the third person is in the best interests of the child . . . ,"       



adding that "[t]his would provide effective protection for a parent's                                    choice, except where  



                                                                                             18  

the choice is plainly contrary   to a child's best interests."                                    We also stated a second  



version of the standard:  "[T]he trial court should determine by clear and convincing  

                  



evidence whether it is in the best interests of [the child] that visitation with the [third  



                                   19  

parties] be provided."                 We concluded by stating a third version of the standard:  "[O]n  



remand the court should determine whether [the mother's] parental preference as to [her  

                                                                                                                             



son's] visitation has been overcome by clear and convincing evidence that it is in [her  

                                                                                                                  

son's] best interests that he visit with the [third parties]."20  



                     Later cases applying Evans did not clarify the standard.  In 2010 we stated  

                                                                  



in the introduction to Osterkamp v. Stiles that "[the third party] did not prove by clear  



and convincing evidence that it would be in [the child's] best interests for the court to  

                                                                                                                              



                                                                               21  

order  visitation  over  [the  mother's]  objection ."                                The  title  to  the  opinion  section  



analyzing third-party visitation restated the same conclusion:  "[Third Party] Did Not  



                 

Prove By Clear And Convincing Evidence That It Would Be In [Child's] Best Interest  



                                                                                 22  

To  Order Visitation  Over  [Mother's ] Objection ."                                 However in the opinion section  



resolving the visitation issue, we stated a different, apparently simpler, standard:  



           18        Id. (emphasis added).  



           19        Id. at 1090 (emphasis added).  



           20        Id. at 1091 (emphasis added).  



           21        235 P.3d 178, 181 (Alaska 2010) (emphasis added).  



           22        Id. at 190 (emphasis added).  



                                                                  -19-                                                            7024
  


----------------------- Page 20-----------------------

                    We held in Evans that to obtain visitation over the objection  

                                                       

                    of  a  legal  parent,  a  third  party  must  show  by  clear  and  

                             

                    convincing  evidence  that  visitation  is  in  the  child's  best  

                    interests. . . .  



                              In Evans , we noted the statement from the plurality in  

                                                                  

                    the   United   States   Supreme   Court's   decision   Troxel   v.  

                    Granville[23]  that  special  weight  must  be  given  to  a  fit  

                                                                                                  

                    parent's determination as to the desirability of visitation with  

                    third parties.  We concluded that a presumption of parental  

                                                                 

                    fitness to determine what is in a child's best interests could be  

                    ensured by requiring that a third party prove "by clear and  

                    convincing  evidence"  that  such  visitation  "is  in  the  best  

                                       

                    interests  of  the  child."    The  result  of  establishing  this  

                                                                                    

                    heightened standard, we concluded, was to "provide effective  

                    protection for a parent's choice , except where the choice is  

                                                                                  

                                                                                     [24] 

                                              

                    plainly contrary  to a child's best interests."  



                            

We then restated the first, more specific standard:  "[I]t is a close question whether it  



would be in [the child's] best interests to order visitation with [the third party] over [the  



                                              25  

                                                  Restating our conclusion that "special consideration  

mother's] fervent objections." 



                                              

must be given to a fit parent's determination regarding the desirability of visitation with  



third parties," we articulated a third, entirely new standard:  "[W]e find that [the third  



party]  did  not  meet  his  burden  to  prove  by  clear  and  convincing  evidence  that  [the  



                                  

mother's] preference  that he no longer have a relationship with [the child] is plainly  



                                                        26  

                                                            In footnotes we also twice restated the standard  

contrary to the child's best interests."  



a fourth way:  



          23        530 U.S. 57 (2000).  



          24        Osterkamp, 235 P.3d at 190 (emphasis added) (footnotes omitted) (quoting   



Evans , 88 P.3d at 1089).  



          25        Id. (emphasis added).  



          26        Id. at 191 (emphasis added).  



                                                              -20-                                                         7024
  


----------------------- Page 21-----------------------

                    Psychological parent status . . . can help a third party prove  

                    .  .  .  that  it  would  be  in  the  child's  best  interests  to  grant  

                                                               

                    visitation to a third party. . . .  [T]he parental preference may  

                    only be overcome if it is determined, by clear and convincing  

                                                     

                    evidence, that it would be in the best interests of the child to  

                                                                    

                                                             [27] 

                    award third party visitation.  



                    In  our  2013  Hawkins  v.  Williams  decision,  the  section  of  the  opinion  



                                                                                     

analyzing third-party visitation is entitled: "The Superior Court Properly Required [The  



Grandmother] To Prove That Visitation Was In The Children's Best Interests By Clear  



                                          28  

                                                    

And Convincing Evidence."                     In line with this simple standard we restated Evans 's  



holding  as  "a  grandparent  seeking  visitation  must  bear  'the  burden  of  proving  that  



                                                                                                                    29  

                                                                                                                        Later  

visitation is in the best interests of the child by clear and convincing evidence.' " 



                                                                                   

in the opinion, we again repeated this simple standard:  "The [superior] court correctly  



required [the grandmother] to show that visitation was in the best interests of the children  



                                                   30  

                                                       But we added:  "Any visitation order infringes on  

by clear and convincing evidence." 



                                  

a parent's due process right to make decisions regarding 'the care, custody, and control'  



of a child.  It follows that a parent can oppose a petition for court-ordered visitation  



                                                                                              31  

                                                                                                  We also approved a  

without objecting to all types of visitation with the third party." 



          27       Id. at 184 n.17, 191 n.54 (emphasis added).  



          28        314 P.3d 1202, 1204 (Alaska 2013) (emphasis added).  The statute at issue                         



in Hawkins was AS 25.20.065, the same statute Carl invoked in this case.  See id.  



          29       Id. at 1204-05 (alterations omitted) (emphasis added) (quoting Evans , 88  

                                                                                         

P.3d at 1089).  



          30       Id. at 1205 (emphasis added).  



          31       Id. (footnote omitted) (emphasis added).  



                                                             -21-                                                       7024
  


----------------------- Page 22-----------------------

second standard by ultimately "conclud[ing] that the superior court did not abuse its  



                                              

discretion when it determined that it would not be in the best interests of the children to  

have court-ordered visitation with [their grandmother]."32  



                                                                   

                    In all three cases we stated that a third party seeking visitation must prove  



                                                                     

by  clear  and  convincing  evidence  both  that  (1)  only  visitation  with  the  third  party  



                                                                                                

generally - not court-ordered - is in the child's best interests and (2) court-ordered  



                                                                                                              

visitation specifically is in the child's best interests.  In the two older - and more in- 



depth - cases, we stated in several different iterations that  court-ordered  visitation  



                                                                                    

contrary to the parent's preferences must be proven, by clear and convincing evidence,  



to be in the child's best interests.   



          C.        The Correct Legal Standard  



                                                                                                                    

                    In determining the correct third-party visitation legal standard, it is helpful  



     

to understand the purpose underlying its creation.  In Evans we stated this purpose as  



                                                    

giving  "special  weight  .  .  .  to  a  fit  parent's  determination  as  to  the  desirability  of  



                                         33  

visitation with third parties"              and "provid[ing] effective protection for a parent's choice ,  



                                                                                                          34  

                                                                                                              Although in  

except where the choice is plainly contrary  to a child's best interests." 



                                                                     

Hawkins  we  did  not  directly  state  the  most  specific  standard  -  that  court-ordered  



visitation contrary to the parent's preferences must be proven to be in the child's best  



          32        Id. at 1206 (emphasis added).  



          33        88 P.3d at 1089 (emphasis added); accord Osterkamp, 235 P.3d at 190-91  



(emphasis added).  



          34        Evans , 88 P.3d at 1089 (emphasis added);                     accord Osterkamp, 235 P.3d at  



 190-91 (emphasis added).  



                                                             -22-                                                        7024
  


----------------------- Page 23-----------------------

                                           

interests - our recognition in that case that a visitation order infringes upon a parent's  



constitutional rights even if the parent is not opposed to some types of unmandated  

visitation with a third party35 is in line with this purpose.  



                    The  federal  basis  for  Alaska's  legal  standard  verifies  this  purpose.    In  



Troxel v. Granville the U.S. Supreme Court addressed the clash between a third-party  



visitation statute and parents' substantive due process rights to the care, custody, and  



                                   36 

                                                                                             

                                                                                                  

control of their children.             Based on these constitutional rights, the Washington Supreme  



                 

Court had found facially unconstitutional a state statute "permit[ting] 'any person' to  



                                     

petition a superior court for visitation rights 'at any time[]' and authoriz[ing] [the] court  



to grant such visitation rights whenever 'visitation may serve the best interest of the  



            37  

                                                          

child.' "       The U.S. Supreme Court's four-person plurality opinion declined to rule on  



the statute's facial constitutionality but ultimately affirmed the Washington Supreme  



                                                                                                                        38  

Court, stating that the statute was unconstitutional as applied for several reasons.                                         



                                                                                                              

                    First, the trial court had not found that the mother was unfit - important  



                                                            

because  "there  is  a  presumption  that  fit  parents  act  in  the  best  interests  of  their  



               39  

                                                                                                             

children."        Second, although the mother was apparently fit, the trial court had given "no  



          35        See Hawkins, 314 P.3d at 1205.  



          36        530 U.S. 57, 65 (2000) (plurality opinion).  



          37        Id.  at  60  (plurality  opinion)  (alteration  omitted  and  alterations  added)  



(quoting WASH .  REV .  CODE    26.10.160(3) (1994 & Supp. 1996)).  



          38        See id. at 67-74 (plurality opinion).  



          39        Id.  at 68 (plurality opinion); see also id.  at 68-69  (plurality opinion) ("[S]o  



long as a pa      rent 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  

                                                                             

                                                                                                            (continued...)  



                                                             -23-                                                        7024
  


----------------------- Page 24-----------------------

                                                                                                               

special weight at all to [her] determination of her daughters' best interests" and "[m]ore  



                                                                                   

importantly,"  the  trial  court  "appear[ed]  .  .  .  [to]  appl[y]  exactly  the  opposite  



presumption" by "presum[ing] the grandparents' request should be granted unless the  



                                                                  40  

                                                                      Third, the mother had never sought to  

children would be 'impact[ed] adversely.' " 



                                     41 

                                                                                                      

entirely cut off visitation.             Instead the dispute originated because the mother had sought  



                                      

to limit the grandparents' visitation with the children to one short, non-overnight visit per  



                                         42  

                                                           

month and special holidays.                  And the mother had conceded in court that "grandparent  

visitation is in the best interest of the children."43  According to the plurality the problem  



with the trial court's approach to the case was that:   



                    this case involves nothing more than a simple disagreement  

                    between the . . . Superior Court and [the mother] concerning  

                                           

                    her children's best interests. . . . [T]he Due Process Clause  

                    does not permit a State to infringe on the fundamental right  



          39        (...continued)  



that parent's children.").  



          40        See id. at 69 (plurality opinion) (last alteration in original);  see also id.  



(plurality opinion) ("In reciting its oral ruling . . . , the Superior Court judge explained:  

                             

. . . . 'I think in most situations a commonsensical approach is that it is normally in the  

            

best interest of the children to spend quality time with the grandparent, unless . . . there  

are some issues or problems involved wherein the grandparents, their lifestyles are going  

to impact adversely upon the children.' " (alteration omitted)).  



          41        Id. at 71 (plurality opinion).  



          42        Id. (plurality opinion).  



          43  

                                                                                                          

                    Id.  (plurality  opinion)  ("The  Superior  Court  gave  no  weight  to  [the  

                                         

mother's] having assented to visitation even before the filing of any visitation petition  

                                                                                                              

or subsequent court intervention. The court instead rejected [the mother's] proposal and  

settled on a middle ground . . . . Significantly, many other States expressly provide by  

statute that courts may not award visitation unless a parent has denied (or unreasonably  

                                                                                                        

denied) visitation to the concerned third party.").  



                                                             -24-                                                        7024
  


----------------------- Page 25-----------------------

                    of parents to make child rearing decisions simply because a  

                                                                                                   [44] 

                    state judge believes a "better" decision could be made.  



                                                       45  

                    Two justices concurred.                Justice Souter stated that he would affirm the  



Washington  Supreme  Court's  decision  finding  the  statute  facially  unconstitutional  



                                                             

"because the state statute authorizes any person at any time to request (and a judge to  



                                                                                                                            46  

                                                                

award) visitation rights, subject only to the State's particular best-interests standard." 



                                               

After noting that no party had argued that the U.S. Supreme Court's substantive due  



process cases were wrongly decided, Justice Thomas "agree[d] with the plurality that  



                                                                            

[the] Court's recognition of a fundamental right of parents to direct the upbringing of  



their children resolves this case" because a prior U.S. Supreme Court decision held that  



"parents have a fundamental constitutional right to rear their children, including the right  



                                                                            47  

to determine who shall educate and socialize them."                             



                                                                                        

                   All six justices agreed that the application of a best interests standard alone  



                                                                                              48  

                                                                                                  Five justices agreed  

is insufficient to adequately protect parental constitutional rights. 



                                                                                             49  

that this is true even when it is a grandparent seeking visitation.                               



          44       Id. at 72-73 (plurality opinion).  



          45       See id. at 75-79 (Souter, J., concurring), 80 (Thomas, J., concurring).  



          46       Id. at 76-77 (Souter, J., concurring).  



          47       Id. at 80 (Thomas, J., concurring).  



          48       See  id.  at  67-70,  72-73  (plurality  opinion);  id.  at  76-78   (Souter,  J.,  



concurring), 80 (Thomas, J., concurring).  



          49        Compare id. at  67-70, 72-73 (plurality opinion) ("[T]he decision whether  



. .   .  an intergenerational  relationship would be be                 neficial  in any specific c         ase i  s f   or the  

parent to make in the first instance. . . . [T]his case[, stemming from a grandparental  

visitation  petition,]  involves  nothing  more  than  a  simple  disagreement  between  the  

Washington Superior Court and [the mother] concerning her children's best interests."),  

                                          

                                                                                                           (continued...)  



                                                            -25-                                                       7024
  


----------------------- Page 26-----------------------

                                                                                                              

                    With this basis for the third-party visitation legal standard in mind, we hold  



that a third party seeking court-ordered visitation with a child, including a grandparent  



seeking an order under AS 25.20.065, must prove by clear and convincing evidence that  



    

it is detrimental to the child to limit visitation with the third party to what the child's  



                                                                    

otherwise fit parents have determined to be reasonable.  We believe this standard will  



                                                                                                                        

ensure that parental preferences are adequately protected while still allowing a court to  



                                                                

override those preferences when they are so clearly contrary to a child's best interests  



that they are detrimental to the child.  



          D.        This Case  



                                                    

                    In its visitation order the superior court stated that a grandparent must prove  



                                                                                                                         

by clear and convincing evidence that "visitation" is in the child's best interests. But the  



                                     

superior court found by clear and convincing evidence both that (1) visitation with Carl  



is in the children's best interests and (2) "a visitation order is necessary to ensure that  



Carl actually visits his grandchildren." (Emphasis added.)  The court also later found  



            

"that it is unlikely . . . visitation will improve or even occur unless there is a visitation  



                                                         

order in place."  Thus it appears that the superior court found by clear and convincing  



          49        (...continued)  



and id. at 80 (Thomas, J., concurring) (stating that he would apply strict scrutiny to any  

                                                                                                             

interference with the "fundamental right of  parents to direct the upbringing of their  

                                                                     

children" and that "[h]ere, [in this grandparental visitation case,] the State of Washington  

lacks even a legitimate governmental interest-to say nothing of a compelling one"),  

with id. at 76-79 (Souter, J., concurring) (stating that he would affirm the Washington  

                                                                                                 

Supreme Court's decision finding the statute facially unconstitutional "because the state  

                                                                                                                       

statute authorizes any person at any time to request (and a judge to award) visitation  

rights, subject only to the State's particular best-interests standard," adding, "It would  

            

be  anomalous  .  .  .  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." (emphasis added)).  



                                                              -26-                                                         7024
  


----------------------- Page 27-----------------------

                                                                                                          50  

evidence that court-ordered visitation is in the children's best interests.                                   This legal  



standard ignored Stefanie and John's parental preferences, and its application violated  



their constitutional rights.  



                   The facts of this case are illustrative of how violations can occur when  



parental constitutional rights are inadequately considered.  Carl requested two weeks of  



                                                                                                            

"unfettered"  visitation,  but  quickly  aligned  his  visitation  requests  with  the  parents'  



                                                                            

preferences by removing Simone from the equation, requesting less time, and requesting  



only supervised visitation during the day - at least at the initiation of visitation.  The  



                                                                                   

superior court found the parents to be fit, and  did  not find unreasonable any of the  



parents' restrictions nor any history of unreasonable visitation denial.  Instead the court  



                                                                                                          

found "troubling" Carl's failure to understand why Stefanie and John did not want their  



                                                          

children around Simone, and stated that Stefanie and John "would be remiss" if they had  



                                                                                      

failed to restrict Simone, her family, and her friends' access to the children.  But the court  



still ordered visitation over the parents' objections.  



          50       Stefanie and John argue that although the superior court found by clear and  



convincing evidence that a court order was necessary to ensure visitation between Carl  

and the children, this finding was not the basis for the order.  They argue that the court  

instead ordered visitation because Stefanie and John conceded that visitation with Carl  

generally would be in their children's best interests.  The court made a point of twice  

finding in its visitation order that an order was necessary to effectuate visitation, but it  

                                                                                                       

also appeared to assume from very early in the proceedings that it would issue an order,  

                                                                                                

repeatedly questioning Stefanie and John's "philosophical" objections to one.  And in  

its order the court reiterated its perception that the non-issuance of an order would be an  

                                                                                                

"illusory freedom."  Regardless, the highest standard possibly applied by the court -  

                                                                                                                  

that court-ordered visitation was in the children's best interests - was insufficient to  

protect Stefanie and John's parental constitutional rights.  We do not need to resolve  

whether the court's order was based upon a different but still insufficient standard.  



                                                            -27-                                                      7024
  


----------------------- Page 28-----------------------

                                                                                                                                      

                      Assuming visitation with grandparents would be beneficial to any child as  



                                                                                                51  

                                                                                                           

long as nothing "weird" or "detrimental" was happening,                                             the court reprimanded both  



                                                      

the parents and the grandparent for the recent poor communication between the children  



                                                                                                                          

and Carl and found that a visitation order was necessary to ensure that visitation with  



                                         

Carl actually occurred.  The court's wording reveals its sole focus - the children's best  



interests, as determined by the court, not the parents:  



                                                                                                               

                       But at some point the best interests of the children have to  

                                                                       

                      return to the forefront. That can only be accomplished by the  

                                                           

                      parents setting aside their anger at Carl and facilitating the  

                       grandparent relation.  



                                  .   .    .   [T]he        obligations           of     parenthood             require  

                       compromise when compromise is necessary to achieve what  

                       is in the best interests of the children - here the restoration  

                       and continuation of a relationship with Carl.  



                                         

                                  . . . The court will allow the parents to continue to play  

                      the primary role in protecting their children and deciding how  

                                                              

                      that needs to be done.  Only if they act unreasonably will the  



           51         For example, the court stated:  "[W]hy would it ever be in a child's best       



interest not to have a grandparent relationship? . . . [I]f the grandparent .   . [is] taking   

care of [a grandchild] responsibly[,] [w]hen would it ever be detrimental to a child to  

have a grandparent?" We note the similarity between the superior court's statements and  

                                                                                                

those the Troxel plurality condemned.  See Troxel, 530 U.S. at 68-70 (plurality opinion)  

                                                                                      

("In reciting its oral ruling . . ., the Superior Court judge explained:  '. . . I think in most  

                                                                                     

situations a commonsensical approach is that it is normally in the best interest of the  

children to spend quality time with the grandparent, unless . . . there are some issues or  

                                                                                                       

problems  involved  wherein  the  grandparents,  their  lifestyles  are  going  to  impact  

adversely upon the children.' . . . In effect, the judge placed on . . . the fit custodial  

parent[] the burden of  disproving that visitation would be in the best interest of her  

daughters.  .  .  .  The  decisional  framework  employed  by  the  Superior  Court  directly  

                                                                                                          

contravened the traditional presumption that a fit parent will act in the best interest of his  

                                                                                                                     

or her child.  In that respect, the court's presumption failed to provide any protection for  

                                                                                                                     

[the mother's] fundamental constitutional right to make decisions concerning the rearing  

                                                                                                              

of her own daughters." (alteration omitted) (emphasis in original) (citation omitted)).  



                                                                     -28-                                                                7024
  


----------------------- Page 29-----------------------

                    court intervene to ensure that the grandchildren have suitable  

                    access to Carl.  



                                           

The court's statements that it would "allow the parents to continue to play the primary  



                                                              

role  in  protecting  their  children"  and  that  it  was  "willing  to  give  the  parents  an  



                                                                                 

opportunity to demonstrate that they [would] permit reasonable visitation" between the  



                                                                                

children and Carl - despite the lack of evidence that they ever unreasonably denied such  



                                                               

visitation - is precisely the type of state interference with fit parents' care, custody, and  



                                                

control of their children that the Troxel plurality and Justice Thomas's concurrence found  

unconstitutional.52  



          E.        Carl's Narrow-Tailoring Argument  



                                                                                                                  

                    Carl  argues  that  the  narrow  fashioning  of  the  visitation  order  itself  



precludes finding it unconstitutional.  The superior court apparently agreed, stating:  



                                                                                   

                    Once it has determined that visitation is in the best interests  

                                                                               

                    of a child, the court is not entirely free to impose "reasonable  

                               

                    rights  of  visitation  .  .  .  ."    .  .  .  [T]hey  must  be  narrowly  

                    fashioned to protect the parent's rights . . . . By fashioning  

                    only narrowly tailored rights or conditions of visitation, the  

                    court takes care to give the requisite "special weight" to the  

                    parents'  determination  as  to  the  desirability  of  visitation.  

                    (Footnotes omitted.)  



                                       

                    But a court cannot ignore parental rights when issuing an order and then  



                                                                                                     

cure the order's unconstitutionality by considering parental rights when determining its  



          52        We likewise note that the court's response to Stefanie's testimony that  



during visitation she would want Carl to keep the children's sugar intake minimal - "I  

                                                                                             

mean, you got to let the guy give the kid a bowl of ice cream" - is exactly the type of  

                                                                                                     

unconstitutional judicial interference Troxel warned against.  See Troxel, 530 U.S. at 68- 

                                                                                                               

69 (plurality opinion) ("[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.").  



                                                               -29-                                                         7024
  


----------------------- Page 30-----------------------

terms.  As we explicitly stated in Hawkins :  "Any visitation order infringes on a parent's  

                 



due process right to make decisions regarding the 'care, custody, and control' of a child.  

                                                       



It  follows  that  a  parent  can  oppose  a  petition  for  court-ordered  visitation  without  



                                                                                     53  

objecting to all types of visitation with the third party."                              The superior court's actions  



in this case were directly contrary to our statement in Hawkins :  Subjecting parents to a  

                           



court's  ongoing  oversight  and  threat  of  intervention  is  in  itself  an  infringement  on  

                                                                 



parental  due  process  rights.    Doing  so  without  any  safeguarding  of  those  rights  is  



                                                                                                                  

unconstitutional.  "[A]llow[ing] the parents to continue to play the primary role" in their  



children's lives by setting only the restriction that the ordered visitation be "reasonable,"  



                                                 

as the superior court did in this case, is an insufficient after-the-fact substitution for not  



                                              

ordering visitation in the first place.  The narrow tailoring of the visitation order does not  

negate its unconstitutionality.54  



          F.        Dismissing The Visitation Petition  



                    The superior court found the parents were fit and did not find any of the  



                                                                           

parents' visitation restrictions unreasonable nor any history of unreasonable visitation  



                                                         

denial.  Instead, the court stated that Stefanie and John "would be remiss not to restrict  



the access of [Simone, her family, and her friends] to [the children]."  We hold as a  



                             

matter of law that, given these findings, Carl is unable to prove by clear and convincing  



                                                                                                          

evidence that it is detrimental to the children to limit their visitation with Carl to what  



          53        314 P.3d 1202, 1205 (Alaska 2013) (emphasis added) (footnote omitted)     



(quoting Troxel, 530 U.S. at 66).  



          54        Carl argues that a narrowly fashioned court order is constitutional because  



this  court  narrowly  reads  statutes  to  avoid  their  unconstitutionality.    This  argument  

ignores  binding  precedent  in  favor  of  a  broad,  inapplicable  canon  of  statutory  

construction:  Court orders are not statutes.  And a trial court cannot simply circumscribe  

the terms of an order in lieu of applying the legal standard determining whether such an  

                                                                                                             

order could constitutionally issue.  



                                                               -30-                                                         7024
  


----------------------- Page 31-----------------------

                                                                                                 55  

Stefanie and John have determined to be reasonable.     Because the superior court's  



                                                                  

findings preclude the possibility that a constitutional visitation order could be entered on  



                                                                                                                                 

the current record in this case, we dismiss Carl's visitation petition rather than remanding  

for further proceedings after more than two years of litigation in this case.56  



V.          CONCLUSION  



                        Having already VACATED the grandparent visitation order, we DISMISS  



the petition for grandparent visitation.  



            55          See   Osterkamp v. Stiles, 235 P.3d 178, 183-84 (Alaska 2010) ("Whether  



factual findings are sufficient to support an award of custody [or visitation] to a third                                                  

party is a legal issue to which we apply our independent judgment." (quoting                                                           J.W. v. R.J. ,  

951 P.2d 1206, 1209 (Alaska 1998),                              overruled on other grounds by Evans v. McTaggart                                           ,  

88 P.3d 1078, 1085 n.34 (Alaska 2004)) (internal quotation marks omitted)).  



            56  

                                                                                   

                        See id. at 190 & n.47 ("Because this case already has a protracted history,  

                                                                                  

because the parties need finality, and because Ken presented his case for visitation to the  

                                                                            

superior court, we resolve Ken's claim for visitation on the merits rather than remand for  

                                                                                                   

further proceedings.") (citing In re Estate of Johnson , 119 P.3d 425, 436 n.43 (Alaska  

                                                                                                                                                         

2005); State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1071 (Alaska 2004)).  See also In  

                                                                                               

re Estate of Johnson, 119 P.3d at 436 n.43 ("Due to the lengthy delays in this case, we  

                                                                                                                              

are reluctant to remand the case for further proceedings."); Kenaitze Indian Tribe , 83  

                                                                                                            

P.3d at 1071 ("[G]iven the long delays in this litigation . . . we are reluctant to remand  

                                                                                                         

to the superior court to carry out the same review that we have already conducted.  We  

                                                                                                                    

therefore think it is better in this case for us to consider the merits . . ., rather than remand  

to the superior court, with the potential for further appeals.")).  



                                                                                         

                        Stefanie and John also argue that the Alaska Constitution's due process and  

privacy  clauses  provide  equal  or  greater  protection  of  their  right  to  make  decisions  

regarding the care, custody, and control of their children than the U.S. Constitution and  

                                                                                       

that there was inadequate evidence supporting the  court's finding that an order was  

necessary to ensure visitation between Carl and the children.  Because we conclude that  

the superior court's findings preclude the possibility that a constitutional visitation order  

                                                                                                                                  

could be entered in this case, we do not need to address these arguments.  



                                                                          -31-                                                                     7024
  

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