Following the U.S. Supreme Court case of Troxel v. Granville, every state faced constitutional challenges to their grandparent visitation law. Utah faced such a challenge, but its law was deemed constitutional, although a 2011 case has modified that conclusion.
The heart of the Troxel decision is a statement that “fit parents” are presumed to act in their children’s best interests, even when they cut off contact with grandparents.
Utah law was found constitutional, mainly because the grandparents bear the burden of proof. The grandparents must show that the parental decision to cut off contact with grandparents was not in the best interests of the child. Because the burden of proof is on the grandparents, Utah law aligns well with the Supreme Court decision.
How to Rebut the Presumption
Parents are presumed to make good decisions about their children, but that presumption can be rebutted, or proven false, by the grandparents with proper evidence.
The Utah Code lists several factors relevant to rebutting the presumption. These include the following:
- The grandparent should be a fit and proper person to have visitation rights.
- Visitation with the grandchild must been denied or "unreasonably limited."
- The grandparent should have served as custodian or caregiver to the grandchild, or the grandparent-grandchild relationship should have been substantial enough that its cessation would harm the grandchild.
- The grandparent's child has died or become a noncustodial parent through divorce or legal separation. or has been missing for an extended period of time.
In addition, the court may find that the parent is unfit or incompetent to make a decision about grandparent visitation. The court may also interview the child and take into account his or her wishes, when the child is old enough to express those wishes.
These are possible factors to be used in rebutting the presumption. All of them need not be present, but some are obviously more compelling than others.
Erosion of Grandparents' Rights Through Case Law
Although grandparent visitation rights are fairly well established in Utah statute, they have been steadily eroded by case law.
- Campbell v. Campbell (1996) Even before the Troxel case in 2000, the constitutionality of Utah's law was scrutinized, with a positive outcome for grandparents. In Campbell v. Campbell, the court found that the best interests of the child is a reasonable basis for awarding visitation. See the transcript of Campbell v. Campbell.
- Uzelac v. Thurgood (2006) Following the Troxel case, the grandparent visitation law was challenged again and was upheld, but a somewhat stricter standard was suggested. The court found that the grandparent petitioner must "clearly and convincingly" rebut the presumption of parental correctness. While the court decision mentioned the harm standard -- the idea that the loss of the grandparent-grandchild relationship would harm the child -- it stopped short of requiring that a grandparent prove that a lack of contact would harm the child. See the transcript of Uzelac v. Thurgood.
- Jones v. Jones (2011) The court found that the state cannot interfere in parent-child relationships unless there is a compelling reason to do so. In its decision, it found that only harm to the child would constitute a reason compelling enough to override a parental decision. The court denied visitation to the grandparents in this case, stating that the law had been unconstitutionally applied, because the grandparents had not shown that a loss of contact would harm the child. See the transcript of Jones v. Jones.
If the harm standard set out in Jones v. Jones is upheld, grandparents seeking visitation in Utah will face a significant obstacle. At this point, no one is certain whether the case of Jones v. Jones will have a lasting impact or whether it will be modified by new laws or by further court cases.
But most observers have concluded that only two viable paths remain for grandparents seeking visitation in Utah. One, the grandparents can prove the parents unfit or incompetent. Two, the grandparents can prove that they had a substantial relationship with a grandchild, to the extent that the grandchild will be harmed if the relationship is lost.
See Utah Code, 30-5-2.
- See also: Before You Sue for Visitation Rights