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Rideout v. Riendeau, concurring opinion

WATHEN, C.J., with whom RUDMAN, J., joins, concurring.

	[¶35]  I concur in the result reached by the Court but write
separately to distance myself from the curiously ambiguous and
restricted conclusion "that the state does have a compelling interest in
providing a forum within which grandparents who have acted as parents to
their grandchild may seek continued contact with that child."  The District
Court held that the Grandparents Visitation Act violates the Fourteenth
Amendment to the United States Constitution on its face because it
requires no showing of harm to the child before a court can order
visitation with a grandparent.  The court also concluded that the "best
interest standard is not a compelling state interest by itself."  With the
advantage of the teaching in Troxel, I reject the notion that the Act is
invalid on its face and that the application of the best interests of the
child standard is always unconstitutional in the context of grandparent
visitation.{19}
	[¶36]  In my judgment, the issue before us is whether the Act can
ever be applied constitutionally.  Although the United States Supreme
Court stopped short of ruling on this precise issue, the opinion in Troxel is
instructive and persuades me that the Act survives a facial challenge.
	[¶37]  I begin my analysis, as did the United States Supreme Court,
in Troxel, by recognizing that the passage of the Act in Maine and similar
statutes in every one of the other forty-nine states reflect profound
changes in the structure of the American family.
	The demographic changes of the past century make it
difficult to speak of an average American family.  The
composition of families varies greatly from household to
household.  While many children may have two married parents
and grandparents who visit regularly, many other children are
raised in single-parent households.  In 1996, children living
with only one parent accounted for 28 percent of all children
under age 18 in the United States.  U.S. Dept. of Commerce,
Bureau of Census, Current Population Reports, 1997 Population
Profile of the United States 27 (1998).  Understandably, in
these single-parent households, persons outside the nuclear
family are called upon with increasing frequency to assist in
the everyday tasks of child rearing.  In many cases,
grandparents play an important role.  For example, in 1998,
approximately 4 million children-or 5.6 percent of all children
under age 18-lived in the household of their grandparents.  U.S.
Dept. of Commerce, Bureau of Census, Current Population
Reports, Marital Status and Living Arrangements:  March 1998
(Update), p. i (1998).

	The nationwide enactment of nonparental visitation
statutes is assuredly due, in some part, to the States'
recognition of these changing realities of the American family. 
Because grandparents and other relatives undertake duties of a
parental nature in many households, States have sought to
ensure the welfare of the children therein by protecting the
relationships those children form with such third parties.  The
States' nonparental visitation statutes are further supported
by a recognition, which varies from State to State, that
children should have the opportunity to benefit from
relationships with statutorily specified persons-for example,
their grandparents.

Troxel v. Granville, 120 S. Ct. 2054, 2059 (2000) (O'Connor, J., plurality
opinion).
	[¶38]  In Troxel, the United States Supreme Court was presented
with the State of Washington's version of a nonparent visitation statute. 
The Washington statute is significantly broader than the Maine Act.  See
Wash. Rev. Code Ann. §§ 26.10.160, 26.09.240 (1998) (allowing any third
party to petition for visitation at any time, subject only to the best
interests of the child).  Our Act is confined to grandparents and in this
case requires a "sufficient existing relationship" between grandparent
and child, see 19-A M.R.S.A. § 1803(1)(B); no significant interference with
the parent-child relationship, see § 1803(3); in addition to a finding that
visitation is in the best interests of the child.  See § 1803(3).  The
Washington Supreme Court struck down its statute on the basis of the
Federal Constitution and held that the statute unconstitutionally infringed
on the fundamental right of parents to rear their children.  Troxel, 120 S.
Ct. at 2058.  That ruling rested on the fact that the statute requires no
threshold showing of harm and also that by allowing "'any person' to
petition for forced visitation of a child at 'any time' with the only
requirement being that the visitation serve the best interest of the child"
the statute sweeps too broadly.  See id. (citing In re Custody of Smith, 969
P.2d 21, 28-30 (Wash. 1998).  In a plurality opinion, four members of the
United States Supreme Court declined to declare the statute
unconstitutional on its face.  Rather, they found it unconstitutional as
applied.  In doing so, they emphasized the need for care in elaborating the
precise scope of parental due process rights in the visitation context and
observed that "[b]ecause much state-court adjudication occurs on a case-
by-case basis, we would be hesitant to hold that specific nonparental
visitation statutes violate the Due Process Clause as a per se matter." 
Troxel, 120 S. Ct. at 2064 (O'Connor, J., plurality opinion).  Two of the
dissenting justices, Justices Stevens and Kennedy, concluded, each for
different reasons, that the facial challenge to the statute should fail and
Justice Kennedy opined persuasively that a parent does not have a
constitutional right to prevent visitation in all cases not involving harm. 
See id. at 2068 (Stevens, J., dissenting); id. at 2075 (Kennedy, J.,
dissenting).  Taking into account the separate view of Justice Scalia that,
as a judge, he is without authority to deny legal effect to laws that
infringe upon rights that are not enumerated in the Constitution, see id. at
2074 (Scalia, J., dissenting), I can come to only one conclusion-on the
basis of existing federal precedent, Maine's Grandparent Visitation Act
does not facially violate the Due Process Clause.{20}
	[¶39]  The inquiry, however, does not end here.  The Act escapes a
facial challenge, not solely because the grandparents in this case may be
de facto parents as relied upon by the Court.  Rather, the Act escapes
facial invalidity because it operates within the rich confluence of the
constitutional interests of the parents, the children, the state, the
grandparents, and the family, whether these interests are derivative or
otherwise.  In this complex context, categorical statement and
pronouncements of facial invalidity must yield to careful balancing of the
competing constitutional interests of all.  To focus with strict scrutiny,
as does the Court, on the compelling interest of the state, vis-a-vis the
parents, is to ignore what may in a particular case be the equally
compelling interests of the children, the family, and the grandparents. 
The District Court must apply the Act with great sensitivity in order to
balance and protect the rights of all parties and not run afoul of the
constitution.  Although the United States Supreme Court has not as yet
definitively catalogued the factual considerations or decisional
frameworks that are constitutionally required or appropriate, developing
caselaw offers guidance.
	[¶40]  As the United States Supreme Court grappled with the changes
in American society that started in the 1960s and continue to the present
day, the Court has consistently expanded the definition of family and
recognized that individuals other than biological or adoptive parents may
exercise child-rearing authority.  This broader understanding of the
parent-child relationship led the Court to acknowledge the rights of
nonparents to be a part of a child's life.  See Moore v. City of East
Cleveland, 431 U.S. 494 (1977).  In Moore, an ordinance attempted to
restrict children from living with their extended families, specifically
with their grandparents.  See id. at 499-506.  The Court held that this sort
of "family choice" is a constitutionally-protected area under the Due
Process Clause even when parents are not involved.  See id.  In particular,
the Court ruled that a grandmother had the right to live with her
grandchildren.  See id. at 504.
Ours is by no means a tradition limited to respect for the
bonds uniting the members of the nuclear family.  The tradition
of uncles, aunts, cousins, and especially grandparents sharing
a household along with parents and children has roots equally
venerable and equally deserving of constitutional recognition. .
. .  Decisions concerning child rearing, which [Wisconsin v.]
Yoder [406 U.S. 205 (1972)], Meyer, Pierce and other cases
have recognized as entitled to constitutional protection, long
have been shared with grandparents or other relatives who
occupy the same household-indeed who may take on major
responsibility for the rearing of the children.

Id. at 504-05; see also id. at 508-13 (Brennan, J., concurring) (discussing
the increasing number of nontraditional families in the United States and
their right to constitutional protection); Stanley v. Illinois, 405 U.S. 645,
651-52 (1972) (recognizing the parental rights of a biological father who
is not married to his child's biological mother).  The United States
Supreme Court has also reaffirmed that the State may regulate the
behavior of adults, including parents, in the attempt to protect the
constitutional rights of children.  See Bellotti v. Baird, 428 U.S. 132, 147
(1976); Ginsberg v. New York, 390 U.S. 629, 637-41 (1968).  It is
constitutionally significant that the Maine Act requires a "sufficient
existing relationship."  Although in my judgment it is not controlling, it is
also significant that in the present case, the grandparents may have acted
as caregivers over a significant period of time and may have developed a
close relationship with the children.  Some courts, without statutory
authority, have modified the common law presumption and opened the door
to visitation by adults who have become  the de facto parent of a child. 
See In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995); see S.F. v.
M.D., 751 A.2d 9, 15 (Md. Ct. Spec. App. 2000); V.C. v. M.J.B., 748 A.2d 539,
551-54 (N.J. 2000); E.N.O. v. L.M.M., 711 N.E.2d 886, 892-93 (Mass.), cert.
denied, 120 S. Ct. 500 (1999).  Additionally, the American Law Institute
(ALI) has suggested that being a de facto parent may create a lawful basis
to grant court-ordered visitation.  See Principles of the Law of Family
Dissolution: Analysis and Recommendations § 2.03(1)(c) (Tentative Draft No.
4, 2000).  By confining the Act to de facto parents in the present case, the
Court unnecessarily strips the Act of any significance beyond the limited
results that could be achieved at common law.
	[¶41]  One of the primary constitutional deficiencies in the
application of the Washington statute in Troxel was the fact that the trial
court gave no special weight to the parent's determination of her
daughter's best interests.  In doing so, the court violated the
constitutional presumption "that fit parents act in the best interests of
their children."  Id. at 2061.  As noted in Troxel, the Maine Act affords a
special measure of protection for parental decision making by requiring
the court to find that grandparent visitation would not significantly
interfere with any parent-child relationship or with the parent's rightful
authority over the child.  See id. at 2062 (citing 19-A M.R.S.A. § 1803(3)). 
In applying the Act, it is important for trial courts to appreciate that the
decisions of fit parents are entitled to special weight and that this
principle is embedded in the Act and is required by the Constitution. 
	[¶42]  In Troxel, the United States Supreme Court also criticized the
failure of the Washington trial court to credit the fact that the parent had
voluntarily provided visitation to the grandparents, never sought to deny
visitation, and resisted only the expanded visitation the grandparents
demanded.  The Maine Act does not, as do the statutes in many other
states, expressly condition an award of visitation on a parent's denial or
unreasonable denial of visitation to the grandparent.  Such considerations,
however, fit comfortably within the comprehensive formulation of best
interests set forth in the Act.  See 19-A M.R.S.A. § 1803(3)(H), (I).
	[¶43]  Finally, Troxel introduces a note of caution about sweeping
interpretations and applications of nonparental visitation statutes.  The
Act deals with an important right described as follows by the Supreme
Court:
The liberty interest at issue in this case-the interest of
parents in the care, custody, and control of their children-is
perhaps the oldest of the fundamental liberty interests
recognized by this Court.

	. . .

"It is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function
and freedom include preparation for obligations the state can
neither supply nor hinder."

Troxel, 120 S. Ct. at 2060 (citation omitted).  Courts must afford primacy
and weight to the interests and views of a fit parent and are not free to
resolve a difficult call by splitting the difference as the Washington trial
court did in Troxel.  
	[¶44]  The present case illustrates the more exacting decisional
framework that is required.  Here, the court determined hypothetically
that the requirements of the Act had been met and indicated that if the
Act were constitutional, it would order visitation.  The court went on to
note, without explanation, that if the children were to be exchanged, it
would be accomplished under the supervision of a third party or guardian
ad litem and the parents and grandparents were not to be present at the
delivery point at the same time.  Although such a ready solution may be
appropriate in a divorce setting for resolving a conflict in parental rights,
in the context of grandparent visitation, it also implicates the analysis of
best interests.  The capacity of the parents and grandparents to cooperate
and resolve disputes is an explicit part of the best interests analysis
required by the Act in determining whether visitation should be ordered. 
See 19-A M.R.S.A. § 1803(3)(H), (I).
	[¶45]  One court has usefully observed that "[a]s a general
proposition, visitation awarded to adults is not for their gratification or
enjoyment, but to fulfill the needs of the child."  Fairbanks v. McCarter,
622 A.2d 121,126 (Md. 1993).  As the United States Supreme Court has
noted, "[t]he extension of statutory rights in this area to persons other
than a child's parents, however, comes with an obvious cost," and could
"place a substantial burden on the traditional parent-child relationship." 
Troxel, 120 S. Ct. at 2059.  Under the Act, it is the court's function to
order visitation only under the limited circumstances when it will benefit
the child, and then, only if that benefit can be realized without
significantly burdening or interfering with the parent-child
relationship.{21}
	[¶46]  Because, in my judgment, the Act is not facially
unconstitutional, I join in vacating the dismissal of the action and
remanding for further proceedings. 
Majority opinion.

Concurring opinion.

Dissenting opinion.

Attorneys and footnotes.

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