Currey v. Currey

ZINTER, Justice

(concurring).

[¶ 23.] I concur and write to add two additional points.

[¶ 24.] First, the record reflects that the trial court fully intended to conduct a “best interests” hearing on the grandparents’ claim for visitation. In fact, the trial court appointed an expert to evaluate the visitation. The trial court also scheduled a hearing to “fully address the visitation rights of the grandparent’s .... ” However, before the scheduled hearing, both parties submitted briefs requesting the trial court to determine the law prior to proceeding with the “best interests” hearing. The trial court complied with that request and concluded that the statute and agreement 5 did not, as a matter of law, afford grandparent visitation rights. Consequently, as the case stood before the trial court, there was no need to enter findings of fact after conducting a “best interests” hearing. The trial court certainly did not “summarily” terminate the grandparents’ rights without making the factual findings required by the case before it.6

[¶ 25.] Second, in performing the “best interests” analysis on remand, the trial court should consider an additional factor. Troxel not only places the burden of proof on the' non-parent, but it also requires deference to a fit parent’s decision. This means that some special weight must be given to the parent’s own determination. .As the United States Supreme Court noted:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here become subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

Troxel, 530 U.S. at 70, 120 S.Ct. at 2062, 147 L.Ed.2d at 49.

. The agreement here was not contrary to the public policy of Troxel because the Due Process Clause only prohibits "government interference" with the liberty interests of parents to the care, custody and control of their children. Troxel, 530 U.S. at 65, 120 S.Ct. at 2059-60, 147 L.Ed.2d 49. Thus, it is the government that is restrained from certain types of interference with parental decision making: parents remain free and unrestrained to make private consensual agreements for grandparent visitation. The trial court did not reach the issue of the enforceability of the agreement apart from Troxel. Consequently, we have not considered that issue on appeal.

. Even in their briefs in this appeal, Grandparents continue to argue "that all issues to be decided herein are legal in nature rather than factual ....”