Mom and dad separate and are getting a divorce. Dad is in the military stationed elsewhere. They have a new baby boy. Before there is any parenting plan between mom and dad and before mom and dad's divorce is final, paternal grandparents file a petition for grandparent contact via Section 40-9-102 MCA when their grandson is 7 months old. The hearing takes place when the grandson is 13 months old. Mom allows paternal grandparents contact, but only in her home and under her supervision. Grandparents want multiple unsupervised contacts per week. Mom opposes the frequency and opposes the request that the visits be unsupervised on the basis of grandparent religious views, attitude toward corporal punishment and fears that the grandparents will bad mouth her. District court finds that mom is a fit parent, that grandparents are safe and appropriate, but rules that the grandparents have failed to overcome the presumption in favor of mom's wishes. Grandparents appeal on the basis that the District Court failed to make findings as to the best interests of the child.
The grandparent visitation statute creates a two part decision tree:
- If the parent is "unfit" then the grandparents must prove only 1 thing: that grandparent contact is in the best interests of the child.
- If the parent is "fit" then the grandparents must prove 2 things: A) that grandparent contact is in the best interests of the child; AND B) that the presumption in favor of the parent's wishes has been rebutted.
Proof must be by clear and convincing evidence. Here, the District Court found mom to be a fit parent. Thus the District Court had to start with the presumption in favor of mom's wishes. The District Court found that the grandparents had not overcome this presumption and did not move on to consider what the best interests of the child would require.
The Supreme Court affirmed, ruling that if the parent was fit, if the grandparents either failed to overcome the presumption in mom's favor OR failed to prove the visitation was in the child's best interests their petition could properly be denied. In short, if the parent is fit the Court only has to find one of the additional factors unproven to deny grandparents wishes.
Justice Rice wrote an interesting opinion concurring with the legal analysis, but dissenting from the application of that analysis here. He agreed that if a grandparent fails to overcome the presumption in favor of a parent's wishes, the trial court need not go further and analyze the best interests of the child. But he found that the grandparents HAD rebutted the presumption. Quoting mom's answer on cross, Justice Rice found that she admitted that visits as limited by her were not in her little boy's best interests.
It is hard to see how a trial court could use any standard -- other than best interests of the child -- to analyze whether the presumption had been overcome. In any case, Justice Rice in this case essentially collapsed the fit parent 2 part analysis into 1: he judged the presumption by "best interests."
Here is the grandparent statute in full:
40-9-102. Grandparent-grandchild contact. (1) Except as provided in subsection (7), the district court may grant to a grandparent of a child reasonable rights to contact with the child, including but not limited to rights regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title. The department of public health and human services must be given notice of a petition for grandparent-grandchild contact regarding a child who is the subject of, or as to whom a disposition has been made during, an administrative or court proceeding under Title 41 or this title.
(2) Before a court may grant a petition brought pursuant to this section for grandparent-grandchild contact over the objection of a parent whose parental rights have not been terminated, the court shall make a determination as to whether the objecting parent is a fit parent. A determination of fitness and granting of the petition may be made only after a hearing, upon notice as determined by the court. Fitness must be determined on the basis of whether the parent adequately cares for the parent's child.
(3) Grandparent-grandchild contact may be granted over the objection of a parent determined by the court pursuant to subsection (2) to be unfit only if the court also determines by clear and convincing evidence that the contact is in the best interest of the child.
(4) Grandparent-grandchild contact granted under this section over the objections of a fit parent may be granted only upon a finding by the court, based upon clear and convincing evidence, that the contact with the grandparent would be in the best interest of the child and that the presumption in favor of the parent's wishes has been rebutted.
(5) A person may not petition the court under this section more often than once every 2 years unless there has been a significant change in the circumstances of:
(a) the child;
(b) the child's parent, guardian, or custodian; or
(c) the child's grandparent.
(6) The court may appoint an attorney to represent the interests of a child with respect to grandparent-grandchild contact when the interests are not adequately represented by the parties to the proceeding.
(7) This section does not apply if the child has been adopted by a person other than a stepparent or a grandparent. Grandparent-grandchild contact granted under this section terminates upon the adoption of the child by a person other than a stepparent or a grandparent.
(8) A determination pursuant to subsection (2) that a parent is unfit has no effect upon the rights of a parent, other than with regard to grandparent-grandchild contact if a petition pursuant to this section is granted, unless otherwise ordered by the court.
