Castagno v. Wholean

MCDONALD, J., with whom BERDON, J.,

joins, concurring. I concur in the result reached by the majority. I write separately, however, because I conclude that General Statutes § 46b-591 is facially unconstitutional.

Section 46b-59 as drafted by the legislature, in its plain words, provides unwarranted and overly broad rights of “any person” to disrupt the fundamental right of a parent, absent the most exceptional circumstances, to raise a child. See Wisconsin v. Yoder, 406 U.S. 205, 229-34, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); In re Valerie D., 223 Conn. 492, 512-14, 613 A.2d 748 (1992); McGaffin v. Roberts, 193 Conn. 393, 400, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); In re Juvenile Appeal (83-CD), *354189 Conn. 276, 284, 455 A.2d 1313 (1983). As such, it is facially and hopelessly unconstitutional.

When originally introduced in 1978 as Substitute Senate Bill No. 48, § 46b-59 provided in part: “Whenever any husband and wife, who have any minor child or children, are living apart, or whenever a person has died leaving a minor child or children surviving, the superior court, upon motion of any grandparent of such minor child or children, may order the right of visitation of such child or children to such grandparent. . . .” The language of the bill limiting visitation rights to grandparents where the family was no longer intact was removed, however, prior to the bill’s passage. The legislature further broadened § 46b-59 in 1983 when it extended visitation rights from grandparents to “any person.” Public Acts 1983, No. 83-95. These changes leave § 46b-59 in striking contrast to the laws of our sister states that require exceptional circumstances before the state may intrude upon parental rights and grant visitation rights to grandparents.2

The plain language of § 46b-59 now creates the broadest possible right of visitation. It provides that any person may petition, even absent exceptional circumstances, for visitation rights no matter how remote the connection to the child and may do so repeatedly. In order to save the statute, the majority here adds the salutary requirement that “any person” must make a threshold showing of exceptional circumstances. The addition of the threshold requirement is not legislative interpretation but direct legislation, engrafting to the legislative text language simply not found or suggested by the plain words of § 46b-59. In effect, the majority inserts into the statute some of the very same language removed from the bill as it went through the legislature. *355See Local 218 Steamfitters Welfare Fund v. Cobra Pipe Supply & Coil Co., 207 Conn. 639, 645, 541 A.2d 869 (1988); Zapata v. Burns, 207 Conn. 496, 503-504, 542 A.2d 700 (1988); Schurman v. Schurman, 188 Conn. 268, 273, 449 A.2d 169 (1982); Houston v. Warden, 169 Conn. 247, 251, 363 A.2d 121 (1975); see also Sassone v. Lepore, 226 Conn. 773, 790, 629 A.2d 357 (1993) (Berdon, J., with whom Katz, J., joins, dissenting).

The majority has struggled rightly to consider the sympathetic circumstance of a grandparent’s desire to visit a grandchild in the face of a family disruption. The majority, however, is unable to narrow the statute’s application in the case of rebellious teenage romances, meddling distant relatives and in-laws, total strangers and overly controlling friends and neighbors. It would also allow repeated and expensive court battles that may wear down the parent, totally disrupt the family discipline and put a judge continuously and unconstitutionally into the home.

Section 46b-59, admitted by all parties to be as broad an invasion of the family autonomy and privacy as could be drawn, is, in my opinion, beyond saving. It provides a vehicle for too much mischief and meddling in a family’s constitutionally protected private business. The trial court struggled with the plain words of § 46b-59 and this court has now taken on the task, better left to the legislature, of solving the problem created by those plain words. We dodged the bullet in Lehrer v. Davis, 214 Conn. 232, 238, 571 A.2d 691 (1990), by holding that the constitutionality of § 46b-59 could not be decided in a factual vacuum. The time has now come, however, to consign this unconstitutional, intrusive and vexatious legislation to its deserved fate. See, e.g., Wisconsin v. Yoder, supra, 406 U.S. 205; Meyer v. Nebraska, supra, 262 U.S. 390.

*356I would affirm the judgment of the trial court dismissing the petition for visitation of children of an intact family, but on the ground that § 46b-59 is facially unconstitutional.

General Statutes § 46b-59 provides in relevant part: “The superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court’s best judgment upon the facts of the case and subject to such conditions and limitations as it deems equitable .... In making, modifying or terminating such an order, the court shall be guided by the best interest of the child (Emphasis added.)

See footnote 4 of the majority opinion.