Petition for Writ of Certiorari — Blixt v. Blixt

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Text

reme Court, U.S.

FILED

| ee

193 847DEC 3 2002

No.

a le

In The

Supreme Court of the Anited States

KRISTIN BLIXT and PAUL J. SOUSA,

Petitioners,

vs.

JOHN BLIXT,

Respondent.

On Petition For Writ Of Certiorari

To The Massachusetts Supreme Judicial Court

PETITION FOR WRIT OF CERTIORARI

Counsel of Record

LAURIE A.’ FRANKL

a RODGERS, POWERS &

SCHWARTZ, L.L.P.

18 Tremont Street

Boston, MA 02108

(617) 742-7010

HARVEY A. SCHWARTZ

JOHN REINSTEIN

~ ACLU FOUNDATION OF |

MASSACHUSETTS

99 Chauncy Street, Suite 310

| Boston, MA 02111

(617) 482-3170

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Massachusetts permits grandparents to petition for

court ordered visitation with their grandchildren — despite

the parents’ objections — only if the grandchild’s parents

live apart from one another. The highest courts of three

states have rejected such schemes. The Massachusetts

Supreme Judicial Court found the state’s statute does not

offend the Equal Protection Clause. This case presents the

question of whether this statutory distinction between -

single-parent households and two-parent households

violates fundamental Fourteenth Amendment Equal Protec-

tion rights.

PARTIES

iii

TABLE OF CONTENTS

Page

Ss eR yy) i

EEE SETS TES OE COTE T ORE ORDO ER ii

TABLE OF AUTHORITIES ...............cscecsssssccscesesseees v

i dhs coss ki ias cada gscadasees 1

BASIS FOR JU RISDICTION IN THIS COURT........ 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED IN THE CASE ..............00000006 1

STATEMENT OF THE CASE...............cccccsssssssssscceees 3

Grail dictstinnek cusesdaphdvasininvsvininninn 3

| ER 5

The Massachusetts Supreme Judicial Court

EES NSS ROE PE RS Oo 6

REASONS FOR GRANTING THE WRIT................. 10

I. The Massachusetts Decision Conflicts with

Decisions by the Highest Courts of Illinois,

Connecticut and Florida.................... stseeeeeaeeseens 10

II. The Decision Below Misapplies the Strict

Scrutiny Standard Mandated by Trovwel............. 14

Ill. This Court has Jurisdiction over this Matter,

Even Though Further Proceedings Are Sched-

uled in the State Court, Because a Ruling on

the Independent Federal Issue Will Be Dispo-

sitive and Would Prevent A Disruptive and

ERAS IER Save ar a pw 21

TA tra hile aisesdhctassbendevaisssicesseicexensaswavenss 24

TABLE OF CONTENTS - Continued

Page

APPENDIX

Ruling of the Massachusetts Supreme Judicial

STUNT iin sossuineivhieitsiasaninsceiideag tigi Ran Casa a 1

Massachusetts Supreme Judicial Court Order

Concerning Briefing of Equal Protection Issue............. 65

TABLE OF AUTHORITIES

Page

CASES

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

6 | oreo sibihihatestinsiasilbisiatantinaniaiileans eiiaeitelilgiaeiign 15

Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996)................... 16

Blixt v. Blixt, 437 Mass. 649, 774 N.E.2d 1052

(2OOZ)........-eecececsercersscceesersererssssssesssssesssssssessesenens passim

Burson v. Freeman, 504 U.S. 191 (1992) ............cccceeeeeeeeeee 20

Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181

Ce ii shen Gh iainkctiasinieniininendanniacieee ssstheiibiideiaaiaaniaiiteintiniiniiitaibasies 12

City of Cleburne v. Cleburne Living Ctr., Inc., 476

EF A A caiiinsincachudetnuscciveiesisdcnduendaljaabicasatibtaedaeients 15

Clark v. Jeter, 486 U.S. 456 (1988).............ccccsssscccsssscoeseees 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CUI ee iciinciscunnapstitcctbenciiabiniaaappsaiaanndnaaadadantainidscnaeal 22, 23

Harper v. Virginia Bd. of Elections, 383 U.S. 663

CF inci wdthsianneineieiiesaicipitndabidetnabiniasitanehgdieuphilidiaedaiiienss 15

Lulay v. Lulay, 193 Ill. 2d 455, 739 N.E.2d 521

ics cikikknspnricicnenasilbindeitenaiainilamanieveniiadad 11, 15, 17, 18

Meyer v. Nebraska, 262 U.S. 390 (1923)..........csseeseeeee 16

Michael v. Hertzler, 900 P.2d 1144 (Wyo. 1995)................. 16

Mitchell v. Forsyth, 472 U.S. 511 (1985)... eeeeeee 14

Parham v. Jd. R., 442 U.S. 584 (1979) ...........ccccccssscecsssseeees 16

Pierce v. Society of Sisters, 268 U.S. 510 (1925)................ 16

Punsly v. Ho, 87 Cal. App. 4th 1099, 105 Cal.

IE Re CED bak aeicenindnSecsedeveliciitbntionaiiasteniiaaiinssiapiiainibons 17

Quilloin v. Walcott, 434 U.S. 246 (1978)............cccssssseseeeees 16

TABLE OF AUTHORITIES -— Continued

Page

R.S.C. & C.V.C. v. J.B.C., 812 So. 2d 361 (Ala. Civ.

Bs Td i ricsieeinieieinatacnieiiediatieiaiiiacinee a 16

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

i Fe tale enicansionnssniensciabienbienuvesisannshiblienteinsasbiaaniaoatiebiamiianadddilaniban 22

Reno v. Flores, 507 U.S. 292 (1998) ..........cccccccsscssssssssseeees 15

Rideout v. Riendeau, 761 A.2d 291 (Me. 2000)..............0.6. 17

Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002)...12, 16

Santi v. Santi, 633 N.W.2d 312 (Iowa 2001)...........ccccccccees 17

Santosky v. Kramer, 455 U.S. 745 (1982) .........cccccccessseeceee 16

Shaw v. Hunt, 517 U.S. 899 (1996) ........cccccccccccscssssssseeeeees 19

Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

aN SU twcencsescnsicssnisesaisonlalaguudtadeiacstabaestetcdaameaianaaie 15

Stanley v. Illinois, 405 U.S. 645 (1972) ......ccccccessceceseseeees 16

| Troxel v. Granville, 530 U.S. 57 (2000)... passim

Von Eiff v. Azicri, 720 So. 2d 510 (1998)..........ccccceeeeee 12, 13

Washington v. Glucksberg, 521 U.S. 702 (1997)............00. 16

Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1

[aoe eacvnccesrvesvsscteeisnibiicedilidiiitadellineabemeneaiiasieslidiemiiacaiatilanseih euinaas 11

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......ccccccccsssccceeeeees 16

STATUTES

Conn. General Statutes §§ 46b-59.0.....ccceccccceeesesseeeee 1l

Fe ee eI ishiinciiutiiucseieeeninadinietnninabantiie 11

Vii

TABLE OF AUTHORITIES -— Continued

Page

SECONDARY AUTHORITIES

Charles P. Archer, Case Note: Troxel v. Granville:

The End of Grandparent Visitation?, 3 J. L. Fam.

gs RCE RS REA On Ce TRS

Margaret F. Brinig, Symposium: Who Gets the

Children? Parental Rights after Troxel v. Gran-

ville: Troxel and the Limits of Community, 32

I EE IN nme

Margaret Byrne, Current Event: Troxel v. Granville,

120 S. Ct. 2054, 9 Am. U.J. Gender Soc. Pol’y &

5 ETERS ere sa On a

Dominic Ayotte, Note: Troxel v. Granville: Parental

Power to Determine Associational Interests of

Children, 52 Baylor L. Rev. 997 (2000)................cccceeeees

Emily Buss, Article: Adrift in the Middle: Parental

Rights after Troxel v. Granville, 2000 Sup. Ct.

Se: UETET chests thikesibaiseinceitiepiaienticatennnaciiiidinsiiatiai ana tiuiduiinieenaen

Traci Gladstone Corcoran, Recent Development:

Troxel v. Granville: the Supreme Court Again

Affirms the Fundamental Right to Parent, 31 U.

Se OF EI cient Gcoinatidaskehinanieneisoninnvnanicinndininds

Stephen G. Gilles, Article: Parental (And Grand-

parental) Rights after Troxel v. Granville, 9 S. Ct.

I SR, ie RINE daiiceimnsndcchitininossichiebenabbcebeubinccsensesinaee

Eric B. Martin, Notes & Comments: Grandma Got

Run over by the Supreme Court: Suggestions for a

Constitutional Nonparental Visitation Statute after

Troxel v. Granville, 76 Wash. L. Rev. 571 (2000)...............

Note: Public and Private Child: Troxel v. Granville

and the Constitutional Rights of Family Mem-

bers, 36 Harv. C.R.-C.L. L. Rev. 225 (2001)...................

OPINION BELOW

The opinion of the Massachusetts Supreme Judicial

Court is reported at 437 Mass. 649, 774 N.E.2d 1052 and

is attached at Appendix 1.

BASIS FOR JURISDICTION IN THIS COURT

The opinion of the Massachusetts Supreme Judicial

Court was issued on September 9, 2002. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1257. Peti-

tioners suggest that 28 U.S.C. § 2403(b) may apply to this

petition. Petitioners certify that a copy of this petition and

notice that the constitutionality of a statute of' the Com-

monwealth of Massachusetts may be drawn into question

was served on Thomas P. Reilly, Attorney General of the

Commonwealth of Massachusetts.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THE CASE

The Fourteenth Amendment to the United

States Constitution, Section i:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States;

nor shall any State deprive any person of life,

liberty, or property, without Due Process of law;

nor deny to any person within its jurisdiction the

Equal Protection of the laws.

Massachusetts General Laws Chapter 119,

§ 39D:

If the parents of an unmarried minor child are

divorced, married but living apart, under a tem-

porary order or judgment of separate support, or

if either or both parents are deceased, or if said

unmarried minor child was born out of wedlock

whose paternity has been adjudicated by a court

of competent jurisdiction or whose father has

signed an acknowledgment of paternity, and the

parents do not reside together, the grandparents

of such minor child may be granted reasonable

visitation rights to the minor child during his

minority by the probate and family court de-

partment of the trial court upon a written finding

that such visitation rights would be in the best

interest of the said minor child; provided, how-

ever, that such adjudication of paternity or ac-

knowledgment of paternity shall not be required

in order to proceed under this section where ma-

ternal grandparents are seeking such visitation

rights. No such visitation rights shall be granted

if said minor child has been adopted by a person

other than a stepparent of such child and any

visitation rights granted pursuant to this section

prior to such adoption of the said minor child

shall be terminated upon such adoption without

any further action of the court. A petition for

grandparents visitation authorized under this

section shall, where applicable, be filed in the

county within the commonwealth in which the

divorce or separate support complaint or the

complaint to establish paternity was filed. If the

divorce, separate support or paternity judgment

was entered without the commonwealth but the

child presently resides within the commonwealth,

said petition may be filed in the county where

the child resides.

STATEMENT OF THE CASE

Introduction

All fifty states have statutes authorizing grandparents

to obtain orders compelling - visitation with their

grandchildren. Troxel v. Granville, 530 U.S. 57, 73 n. 1

(2000). Massachusetts, along with nearly half the other

states,’ allows grandparents to obtain court orders requiring

' See e.g., Ariz.Rev.Stat. § 25-409(A)\(1) and (2) (West 2000) (grandpar-

ent visitation order permitted only when marriage of child’s parents

dissolved, or one parent deceased or missing for three months);

Ark.Code Ann. § 9-13-103(a)(1)(A) (2002) (only when marital relation-

ship between parents severed by death, divorce, or legal separation);

Cal. Fam. Code Ann. § 3104 (West 1994) (visitation petition cannot be

filed when child’s parents are married unless they are living apart);

Colo. Rev. Stat. § 19-1-117 (visitation order allowed only when marriage

has been dissolved or parent has died); Del. Code Ann., Tit. 10,

§ 1031(7) (1999) (when natural or adoptive parents of the child are

cohabiting as husband and wife, grandparental visitation may not be

granted over both parents’ objection); Fla. Stat. Ann. § 752.01(1) (West

Supp.2002) (visitation can be ordered only when marriage of grand-

child’s parents dissolved, one parent has deserted child, or child born

out of wedlock); Ga. Code Ann. § 19-7-3 (1991) (grandparent visitation

order not authorized where child is living with both parents);

N.H.Rev.Stat. Ann. § 458:17-d (1992) (only when child’s nuclear family —

is subject of divorce, death, relinquishment or termination of parental

rights, unless grandparent’s access to child earlier, or contemporane-

ously, restricted); Ind. Code § 31-17-5-1 (1999) (visitation order permit-

ted only when child’s parent is deceased, marriage of the child’s parents

dissolved or child was born out of wedlock.); La. Rev. Stat. Ann. § 9:344

(West Supp. 2000) (visitation order permitted if child’s parent is dead,

incarcerated or “in concubinage” or parents divorced or separated for

six months); Mich. Comp. Laws Ann. § 722.27b (Supp. 1999) (petition

(Continued on following page)

visitation between a grandparent and a grandchild —

against the parents’ wishes — when the grandchild lives

with a single parent, but not when the grandchild lives

with both natural parents’. Twenty-eight percent of

American children live in single-parent households. Troxel

v. Granville, 530 U.S. at 64. The highest courts of at least

three states — Florida, Connecticut and Illinois — have held

that grandparent visitation schemes virtually identical to

_ the Massachusetts statute violate the Equal Protection

for “grandparenting time” can be filed only if child’s parent is deceased

or if child custody dispute with respect to that child is pending); Miss.

Code Ann. § 93-16-3 (1994) (grandparent visitation authorized only if

parent dies or child custody order issues); Neb. Rev. Stat. § 43-1802

(1998) (grandparent may seek visitation order if child’s parent is deceased,

parents are divorced or divorce action pending or child is illegitimate

but paternity is legally established); Nev. Rev. Stat. § 125C.050 (Supp.

1999) (visitation petition allowed only if child’s parent is deceased, or if

parents are divorced, separated or never married but had cohabitated

and are currently separated); Pa. Cons. Stat. §§ 5311-5313 (1991)

(grandparent may petition for visitation if child’s parent is deceased or

marriage dissolution action is pending); S. C. Code Ann. § 20-7-420(33)

(Supp. 1999) (visitation order permitted where either or both parents

deceased, or are divorced or living separate); Tenn. Code Ann. §§ 36-6-

306, 36-6-307 (Supp. 1999) (visitation can be ordered if a child’s parent

is deceased or parents are divorced, legally separated, or were never

married to each other, or parent missing for six months); Tex. Fam.

Code Ann. § 153.433 (Supp. 2000) (grandparent may be given access to

grandchild if child’s parent is incarcerated in prior three months, is

incompetent or dead, or if child’s parents are divorced or living apart, or ~

child is abused or neglected or is delinquent); Vt. Stat. Ann., Tit. 15,

§§ 1011-1013 (1989) (court may award grandparent visitation if child

custody is under consideration or if child’s parent is deceased).

* In fact, two-parent households in which the second parent is a

step-parent are considered as single-parent households under the

- statute. Nationwide, some 4,258,524 households include step-children

under 18. This conscitutes 11 percent of households with children. U.S.

Census, 2000, Table P27 - Relationship by household type.

- 5

rights of parents who live separately by infringing their

fundamental right to raise their children while providing

immunity from the same infringement for parents who

live together. In this case, the Massachusetts Supreme

Judicial Court rejected that Equal Protection argument

and upheld the constitutionality of the state’s grandparent

visitation statute.

This case presents the alter ego to the issue in Troxel

v. Granville, supra. In Troxel, 530 U.S. at 64, this Court

found that the Washington grandparent visitation statute

violated parents’ Due Process rights because it was

“breathtakingly broad.” Petitioners suggest the Massachu-

setts statute violates parents’ Equal Protection rights

because it is discriminatorily narrow in its application.

Factual Background

Kristin Blixt (“Kristin”) and Paul Sousa (“Paul”) are

the parents of Colby Blixt (“Colby”), who was born June

10, 1993. Although Kristin and Paul never married, Paul

is legally acknowledged as Colby’s father. Kristin and Paul

have joint legal custody of Colby. Kristin, Paul and Colby

lived together for a year-and-a-half after Colby’s birth,

after which Kristin and Colby moved temporarily into her

parents’ home. In May 1999, Kristin and Colby moved to a

condominium Kristin purchased. Paul now lives else-

where, but he and Kristin make joint decisions about

Colby’s upbringing. Paul maintains close contact with

Colby and provides for Colby’s support.

Kristin’s parents separated in September 1998.

Although Kristin attempted tc provide for some sort of

visitation between her son, Colby, and her father, John,

her efforts met with difficulties. In February 1999, when

John called to see Colby with no advance notice, Kristin

refused to change her plans to accommodate his request.

John became abusive. Kristin ended contact with her

father and stopped his visitation with Colby; Paul agreed

with Kristin’s decision. Kristin and Paul have concerns

about John’s morality and vindictiveness; his open animos-

ity to Paul, expressed in front of Colby; his harassing and

abusive behavior to Kristin, and his lack of concern for

Colby’s emotional needs or physical safety.

In December 1999, John filed suit in the Massachu-

setts Family and Probate Court pursuant to Massachu-

setts General Laws Chapter 119, §39D, seeking a

visitation order with Colby. Kristin and Paul answered the

complaint by stating, among other defenses, that the

complaint failed to state a claim on which relief could be

granted.

Following discovery, in May 2001, Kristin and Paul

filed a Motion to Dismiss or for Summary Judgment on

both Due Process and Equal Protection grounds, sup-

ported by affidavits. Relying on this Court’s decision in

Troxel v. Granville, supra, the Probate and Family Court

found the statute unconstitutional because it violated

parents’ fundamental rights to make decisions concerning

the care, custody, and control of their children.

The Massachusetts Supreme

Judicial Court Decision

John appealed to the Massachusetts Appeals Court.

The Massachusetts Supreme Judicial Court granted

Kristin’s and Paul’s application for direct appellate review.

The appeal drew considerable attention. Amicus curiae

briefs were filed by, among others: the Coalition for the

Restoration of Parental Rights; the American Association

of Retired Persons; the Massachusetts Bar Association; the

Gay & Lesbian Advocates & Defenders; Greater Boston

Legal Services, and the American Academy of Matrimonial

Lawyers, Massachusetts Chapter. After the filing of initial

briefs, the Massachusetts Supreme Judicial Court ordered

the parties to file additional briefs on the Equal Protection

issues. See Appendix 65. The Court asked the parties to

assume that the classifications created by the grandparent

visitation statute warrant strict scrutiny and to address

the question of whether the Massachusetts statute sur-

vives such an examination. In addition, the Court asked

the parties to assume that a violation of the Equal Protec-

tion Clause exists under such scrutiny and to discuss

whether the statute may still survive constitutional

analysis by a judicial interpretation which corrects the

violation. All parties submitted supplemental briefs on

these Equal Protection issues.

The Massachusetts Supreme Judicial Court issued its

decision September 9, 2002. The Court noted that “[t]he

mother asserts that classifications based on the living

arrangements of a child’s parents unfairly intrude into the

lives of single parents, such as herself, and constitute ‘an

outmoded notion of their capabilities as parents.’” Blixt v.

Blixt, 437 Mass. 649, 662, 774 N.E.2d 1052, 1063 (2002).

_ Looking at the Equal Protection issue through a narrow

lens, the Court said,

The Legislature has long recognized, as it may,

consistent with our Federal and State Constitu-

tions, that children whose parents are unmarried

and live apart may be at heightened risk for cer-

tain kinds of harm when compared with children

’ of so-called intact families. See, e.g., G.L. c. 209C,

§ 9 (court may issue support orders protecting

rights of nonmarital children to, among other

things, parental financial support and adequate

health insurance). That children whose unmar-

ried parents live apart may be especially vulner-

able to real harm from the loss or absence of a

grandparent’s significant presence is a permissi-

ble legislative conclusion, drawn from social ex-

perience and consistent with the State’s

compelling interest in protecting minors from

harm.

Blixt, 437 Mass. at 663, 774 N.E.2d at 1064. Besides

finding no Equal Protection violation, the Court held that

the statute, with substantial interpretation and new

procedural safeguards mandated by the Court, would not

violate parents’ Due Process rights’.

Three of the seven justices dissented, in full or in part.

Justice Cowin dissented as to the Due Process portion of

the Court’s ruling, but agreed with its Equal Protection

analysis. Two justices, Justices Sosman and Ireland,

dissented in regard to both portions of the majority opin-

ion. In a stinging dissent, Justice Sosman said, “The

grandparent visitation statute at issue in today’s opinion,

G.L. c. 119, § 39D, infringes on parents’ fundamental right

to make decisions concerning the upbringing of their

children. It also creates classifications of parents, subject-

_ ing some of them to State interference in parental deci-

sion-making while leaving others free of such interference.

As drafted, the statute violates both Due Process and

* Petitioners do not here contest the court’s Due Process analysis

of the Massachusetts statute.

9 . >

Equal Protection guarantees, as neither its substantive

provisions nor its classifications satisfy the requirement

that they be narrowly tailored to serve a compelling State

interest.” Blixt, 487 Mass. at 667, 774 N.E.2d at 1966-

1067.

The dissenting justices said the classification drawn

between single-parent households and two-parent house-

holds fails to withstand strict scrutiny, noting,

This distinction between parents whose funda-

mental rights are to be infringed cannot with-

stand strict scrutiny. Where the compelling State

interest at stake is the prevention of significant

harm to children, the classifications must be nar-

rowly tailored to serve that interest, i.e., to iden-

tify children who are more likely to be harmed

by, or who will suffer greater harm from, the de-

nial of visitation with grandparents. There may

be some defining characteristics that would op-

erate, in a narrowly tailored way, to identify such

children, but the mere fact that the child’s bio-

logical parents do not live in the same household

does not identify a category of at-risk children

with anything approaching the requisite degree

of precision.

Blixt, 437 Mass. at 681, 774 N.E.2d at 1076.

The Supreme Judicial Court remanded the case to the

Probate and Family Court for further proceedings consis-

tent with its opinion. That court has scheduled the case for

trial in March 2003.

REASONS FOR GRANTING THE WRIT

I. The Massachusetts Decision Conflicts with

Decisions by the Highest Courts of Illinois,

Connecticut and Florida.

The burden of litigating a domestic relations proceed-

ing can be “so disruptive of the parent-child relationship

that the constitutional right of a custodial parent to make

certain basic determinations for the child’s welfare be-

comes implicated.” Troxel v. Granville, 530 U.S. at 75

(quoting Kennedy, J., dissenting opinion, Troxel, 530 U.S.

at 101). In Massachusetts, two parents who live separately

but raise their child together can be dragged into litigation

by the child’s grandparents, seeking court-ordered visita-

tion. The same two parents, if they lived in the same

household, would be immune from such “disruptive”

litigation. This statutory distinction in the grandparent

visitation statute between single-parent households and

two-parent households — the first of which is subject to

grandparent visitation orders, the second of which is

immune — violates the Equal Protection rights of single

parents and parents living separately.

In the present case, both parents of a minor child who

lives with his mother object to the maternal grandfather —

whom they view as abusive, manipulative and dangerous

to their son — having visitation rights. Under the Massa-

chusetts statute, the grandfather, the plaintiff in this

action, was entitled to seek a visitation order in the state’s

family court. The child’s parents were therefore forced to

retain counsel, respond to intrusive and personal discov-

ery, and spend years in litigation. The Massachusetts

Supreme Judicial Court held that the statute did not

violate the Equal Protection Clause of the Fourteenth

Amendment.

The Massachusetts court’s holding conflicts with

rulings of the highest courts of Illinois, Connecticut and

Florida. For example, in Lulay v. Lulay, 198 Ill. 2d 455,

739 N.E.2d 521 (2000), a case in which both divorced

parents opposed a grandparent visitation petition, the

Illinois Supreme Court ruled that the fact that the parents

were divorced — one of the circumstances under which the

Massachusetts and Illinois statutes permit a grandparent

to petition for visitation — had no effect on their funda-

mental rights as parents to determine with whom their

children should associate. The court noted, “Although the

parents are divorced, they agree that it would not be in the

best interests of their children to spend time with their

grandmother.” Lulay, 193 Ill. at 479, 739 N.E.2d at 534.

The Illinois court held the statute to be unconstitutional

as applied to divorced parents. Later, in Wickham v. Byrne,

199 Ill. 2d 309, 320-321, 769 N.E.2d 1, 8 (2002), the same

Illinois court held that state’s grandparent visitation

statute, 750 ILCS 5/607(b), which also permitted grand-

parents to petition for a visitation order if one of their

grandchild’s parents had died, was facially unconstitu-

tional. Noting this Court’s reference in Troxel, 530 U.S. at

64, that “children living with only one parent accounted

for 28 percent of all children under age 18 in the United

States,” the Illinois court said, “[wle ... reject any argu-

ment that single parents are entitled to less constitutional

liberty in decisions concerning the care, custody, and

control of their children.” Wickham, 199 Ill. at 318, 76

N.E.2d at 14.

After this Court’s decision in Troxel, the Connecticut

Supreme Court rejected its earlier standard that had

brought that state’s grandparent visitation statute, Conn.

General Statutes §§ 46b-59, in line with the Massachusetts

statute, allowing grandparent visitation orders only when

the traditional family structure had been disrupted, as in

a divorce, separation or death. Reconsidering that stan-

dard after Troxel, the court ruled in Roth v. Weston, 259

Conn. 202, 217, 789 A.2d 431, 440-441 (2002), “that the

threshold requirement articulated in Castagno [v.

Wholean, 239 Conn. 336, 684 A.2d 1181 (1996)] fails to

protect adequately the fundamental right to rear one’s

child and the right to family privacy. Accordingly, the

holding in Castagno that the trial court has jurisdiction to

entertain a petition for visitation when the family life of

the minor child has been disrupted in a manner analogous

to the situations included within §§ 46b-56 and 46b-57 is

hereby overruled.”

Similarly, the Florida Supreme Court held in Von Eiff

v. Azicri, 720 So. 2d 510 (1998), that a Florida grandparent

visitation statute allowing grandparents to request a

visitation order if their grandchild lived with one parent

because the other parent had died (one of the circum-

stances permitting a visitation petition in the Massachu-

setts statute) violates the rights of the surviving parent.

The court said,

We find nothing in the unfortunate circumstance

of one biological parent’s death that would affect

the surviving parent’s right of privacy in a par-

enting decision concerning the child’s contact

with her maternal grandparents. Philip Von Eff,

whom the trial court found to be a “loving, nur-

turing and fit” parent, continues to enjoy a right

of privacy in his parenting decisions, despite the

death of the child’s biological mother. As suc-

cinctly stated by the Fifth District, under opera-

tively identical facts in finding subsection (1a)

unconstitutional: “We are unable to discern any

difference between the fundamental rights of

privacy of a natural parent in an intact family

and the fundamental rights of privacy of a wid-

owed parent.”

Von Eiff, 720 So.2d at 515 (citations omitted). See Neal v.

Nesvold, 14 P.3d 547, 550 (Okla. 2000) (father’s death does

not alter mother’s constitutionally protected right to raise

child without state interference).

The Massachusetts Supreme Judicial Court’s decision

directly conflicts with these decisions of the Illinois,

Connecticut and Florida Supreme Courts. This conflict

reflects the disparate interpretations various state courts

have placed on this Court’s decision in Troxel and indicates

the need for further clarification of these questions that

affect millions of children and their parents.“

* The Troxel decision has spawned dozens of law review articles

and comments. See, i.e., Charles P. Archer, Case Note: Troxel v. Gran-

ville: The End of Grandparent Visitation?, 3 J. L. Fam. Stud. 179

(2001); Margaret Byrne, Current Event: Troxel v. Granville, 120 S. Ct.

2054 (2000), 9 Am. U.J. Gender Soc. Pol'y & L. 243 (2001); Dominic

Ayotte, Note: Troxel v. Granville: Parental Power to Determine Associa-

tional Interests of Children, 52 Baylor L. Rev. 997 (2000); Eric B.

Martin, Notes & Comments: Grandma Got Run over by the Supreme

Court: Suggestions for a Constitutional Nonparental Visitation Statute

after Troxel v. Granville, 76 Wash. L. Rev. 571 (2000); Note: Public and

Private Child: Troxel v. Granville and the Constitutional Rights of

Family Members, 36 Harv. C.R.-C.L. L. Rev. 225 (2001); Emily Buss,

Article: Adrift in the Middle: Parental Rights after Troxel v. Granville,

2000 Sup. Ct. Rev. 279; Stephen G. Gilles, Article: Parental (And

Grandparental) Rights after Troxel v. Granville, 9 S. Ct. Econ. Rev. 69

(2001); Traci Gladstone Corcoran, Recent Development: Troxel uv.

Granville: the Supreme Court Again Affirms the Fundamental Right to

Parent, 31 U. Balt. L.F. 77 (2000); Margaret F. Brinig, Symposium: Who

Gets thé Children? Parental Rights after Troxel v. Granville: Troxel and

the Limits of Community, 32 Rutgers L. J. 733 (2000).

II. The Decision Below Misapplies the Strict

Scrutiny Standard Mandated by Troxel.

The Massachusetts Supreme Judicial Court judicially

redrafted the state’s grandparent visitation statute to

raise the threshold grandparents must cross before they

can prevail on a petition for visitation with their grand-

children. Nonetheless, the very risk of being exposed to

such litigation places a severe burden on those parents

whose living arrangement subjects them to visitation

petitions and orders. As noted above, in Troxel, the major-

ity of this Court agreed with Justice Kennedy that “[i]f a

single parent who is struggling to raise a child is faced with

visitation demands from a third party, the attorney's fees

alone might destroy her hopes and plans for the child’s

future. Our system must confront more often the reality that

litigation can itself be so disruptive that constitutional

protection may be required . . .” Troxel, 530 U.S. at 101°. The

Illinois Supreme Court emphasized the same point in Lulay:

The significant interference that section 607(bX1)

has on parents’ fundamental right is further evi-

denced by the procedure contemplated by the

statute. The grandparents may file a petition for

visitation under certain circumstances; in this

case, where the parents are divorced. The parent

or parents are then haled into court. The parents

* The intrusive and disruptive effects of even being exposed to

litigation is the basis for this Court’s line of qualified immunity

decisions for public officials. See Mitchell v. Forsyth 472 U.S. 511, 526

(1985) (One purpose of qualified immunity doctrine is to avoid “[subject-

ing] government officials either to the costs of trial or to the burdens of

broad-reaching discovery.”)

must presumably hire attorneys, and then pre-

sent evidence and defend their decision regard-

ing the visitation before a trial court. The

parents’ authority over their children is necessar-

ily diminished by this procedure. This can only

be characterized as a significant interference

with parents’ fundamental right to make deci-

sions regarding the upbringing of their children.

Lulay, 193 Il.2d at 474, 739 N.E.2d at 531-532.

The Massachusetts statute places this significant

burden on single parents, remarried parents and parents

living apart, while shielding more “traditional” natural

parents — those living together — from that same burden.

Such differential treatment of parents’ fundamental right

to raise their children without judicial interference re-

quires strict scrutiny.

The Massachusetts court acknowledged that “[blecause

the statute’s classifications implicate fundamental parental

rights, ‘strict scrutiny’ analysis is again appropriate to

evaluate the mother’s Equal Protection challenge.” Bilixt,

437 Mass. at 660, 774 N.E.2d at 1062. The court recited

the proper standard. Laws impinging on fundamental

constitutional rights are sustainable only if they are

narrowly tailored to meet a compelling state interest. City

of Cleburne v. Cleburne Living Ctr., Inc., 476 U.S. 432, 440

(1985). See Adarand Constructors, Inc. v. Pena, 515 U.S.

200, 235 (1995). See also Skinner v. Oklahoma ex rel.

Williamson, 316 U.S. 535 (1942); Reno v. Flores, 507 U.S.

292, 301-302 (1993); Clark v. Jeter, 486 U.S. 456, 461

(1988) (“[C]lassifications affecting fundamental rights, e.g.,

Harper v. Virginia Bd. of Elections, 383 U.S. 663, 672

(1966), are given the most exacting scrutiny.”)

It is beyond question that a parent’s right to control

his or her child’s upbringing is among the most fundamen-

tal of constitutional rights. “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.”

Troxel, 530 U.S. at 65. See, e.g., Meyer v. Nebraska, 262

U.S. 390, 399-401 (1923); Pierce v. Society of Sisters, 268

U.S. 510, 535 (1925); Stanley v. Illinois, 405 U.S. 645, 651

(1972); Wisconsin v. Yoder, 406 U.S. 205, 213-214 (1972);

Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.

R., 442 U.S. 584, 602 (1979); Santosky v. Kramer, 455 U.S.

745, 753 (1982); Washington v. Glucksberg, 521 U.S. 702,

720 (1997).

In contrast to the fundamental nature of parents’

rights, grandparents do not have any fundamental right to

visit their grandchildren. Roth v. Weston, 259 Conn. 202,

225, n. 12, 789 A.2d 431, 445 (2002). See R.S.C. & C.V.C. v.

J.B.C., 812 So. 2d 361, 366 (Ala. Civ. App. 2001) (noting

that court did not find “state’s interest in enabling

grandparent-grandchild relationships is a ‘compelling

state interest’ for purposes of [its] decisional framework

under the Fourteenth Amendment”); Beagle v. Beagle, 678

So. 2d 1271, 1276 (Fla. 1996) (answering question, whether

state’s interest in visitation is compelling, in negative); but

see Michael v. Hertzler, 900 P.2d 1144, 1151 (Wyo. 1995)

(stating that “compelling state interest exists in maintain-

ing the right of association of grandparents and grandchil-

dren”).

Virtually all state courts that have reviewed grand-

parent visitation statutes have applied this fundamental

right/compelling state interest standard to determine

whether their state’s statute violates parents’ substantive

Due Process rights. See Lulay, supra; Rideout v. Riendeau,

761 A.2d 291, 300 (Me. 2000); Punsly v. Ho, 87 Cal. App.

4th 1099, 1107, 105 Cal. Rptr.2d 139, 145 (2001); Santi v.

Santi, 633 N.W.2d 312, 318 (Iowa 2001). Fewer courts,

however, have examined the Equal Protection dimension

of grandparent visitation statutes. The same strict scru-

tiny analysis should apply to that analysis.

While they lived together, Kristin and Paul had a

fundamental right to raise their son as they felt best. They

did not lose that fundamental right when they moved into

separate households. This fundamental right does not get

flicked on and off like a light switch by the mere act of the

father moving in or out of the mother’s condominium.

Similarly, a married mother’s fundamental right to raise

her child is not lost at the moment her husband dies or

moves out of the marital home. There is no allegation that

Kristin or Paul are in any way unfit parents. “That aspect

of the case is important, for there is a presumption that fit

parents act in the best interests of their children.” Troxel,

530 U.S. at 68. That presumption is equally strong when

applied to fit parents living together as when applied to fit

parents, acting jointly but living apart.’ Because parents

retain their fundamental right to raise their child free

from uninvited interference from the state, whether they

live together or apart, the Massachusetts court should

have focused its Equal Protection analysis on whether the

distinction drawn by the statute is necessary to serve a

* Of course, the court can intervene in child care decisions when

one or both parents seek judicial resolution of a dispute between

parents, such as concerning child custody, support or visitation.

compelling state interest and is narrowly drawn to meet

that compelling interest.

The Massachusetts statute — and the similar statutes

of nearly half the other states’ — can not survive strict

scrutiny. The Massachusetts Supreme Judicial Court

selected the proper standard, then ignored it and failed to

apply this Court’s strict scrutiny analysis to the statutory

distinction. Instead, the court relied on suppositions and

possibilities, and concocted scenarios that could equally

apply to two-parent households, saying,

[T]he burden of the traumatic loss of a grandpar-

ent’s significant presence may fall most heavily

on the child whose unmarried parents live apart

and who may not have or be able to draw on the

resources of two parents in coping with his or her

loss. Such a child may already be vulnerable to

the feelings of loss, inadequacy, and insecurity

that our society still often visits on those children

whose family structure departs from an idealized

two-parent norm.

Blixt, 437 Mass. at 664, 774 N.E.2d at 1065 (emphasis

added). The Court’s foundation for this speculation was

simply a reference to some undefined “social experience.”

Blixt, 437 Mass. at 663, 774 N.E.2d at 1064. This conjec-

ture is not strict scrutiny. “Generalizations about whether

grandparent visitation is beneficial to children are not

determinative.” Lulay, 193 I1l.2d at 478, 739 N.E.2d at 533.

To survive strict scrutiny, a statute must be narrowly drawn,

impairing fundamental rights to the strictest minimum

” See n. 1.

required to serve a compelling need of the state. The

statutory distinctions must be based on facts, not stereo-

types. The means used by the statute must be closely

related to the end sought to be achieved. “Although we

have not always provided precise guidance on how closely

the means (the racial classification) must serve the end

(the justification or compelling interest), we have always

expected that the legislative action would substantially

address, if not achieve, the avowed purpose.” Shaw uv.

Hunt, 517 U.S. 899, 915 (1996). Applied to the Massachu-

setts statute, strict scrutiny requires that the means used

— permitting courts to impose visitation orders only on

single parents or parents living separately — must sub-

stantially address, if not achieve, the end sought, which is

to protect all minor children from harm caused by the

deprivation of visitation with their grandparents.

The Massachusetts statute is not narrowly drawn to

subject parents to compelled visitation litigation only in

those rare cases where it is necessary to protect a child

from serious harm, which is the state’s “compelling”

interest. Instead, this statute casts a broad net, sweeping

in vast numbers of parents who are fit and capable of

deciding with whom their children will associate, and at

the same time provides immunity to even greater numbers

of parents, some of whom may be exposing their children

to identical harm. As a result, as Petitioners argued in the

Massachusetts courts, the statute is both overinclusive —

in that it permits litigation against fit, caring parents who

are rightfully exercising their parental rights -— and

underinclusive — in that it bars similar litigation against

other parents who might be causing actual harm to their

children by keeping them away from their grandparents.

The statute’s dividing line is based on stereotypical

misconceptions. In upholding this statute on Equal Protec-

tion grounds, the Massachusetts Court speculates that

children living with one parent are more likely to be

harmed by the denial of visitation with their grandparents

than are children living with both parents. There is no

evidence of any legislative findings to support this conjec-

ture. The legislature just as casually could have drawn its

classifications based on other stereotypical misconcep-

tions. For example, the state legislature might have

speculated that children living in poverty are more likely

to require contact with their grandparents than are

children living with wealthy parents, and permitted

compelled grandparent visitation only against parents

with low incomes. Similarly, the legislature could have

speculated that children in households where both parents

work were more in need of contact with their grandpar-

ents. Certainly, the legislature could have decided that

children of abusive or alcoholic parents would be in

greater need of time with their grandparents. Under the

Massachusetts scheme, however, the grandparents of such

children are barred from seeking visitation if their grand-

child’s abusive or neglectful parents live together, while

arents or in-laws of the world’s most caring single mother

can subject her to years of costly and emotional litigation.

The statutory distinctions are not narrowly drawn to

carefully respect parents’ fundamental right to raise their

children as they best see fit.

This Court has recognized that “it is the rare case in

which we have held that a law survives strict scrutiny.”

Burson v. Freeman, 504 U.S. 191, 211 (1992). This statute,

which interferes with some parents’ freedom to make deci-

sions concerning their children, but leaves other parents

ne ee

immune from identical judicial oversight, based on a

standard founded in an antiquated stereotype, is not that

“rare case.”

The right of fit parents to make decisions concerning

their children is among the most fundamental of rights.

Troxel, 530 U.S. at 65. All fifty states have grandparent

visitation statutes, a significant number of which are

similar to the Massachusetts statute in authorizing courts

to interfere with this fundamental right for “non-

traditional” families - those with single parents, unwed

parents, separated parents, step-parents and divorced

parents — but barring identical interference with “tradi-

tional” households in which both natural parents live with

their children. This Court’s Troxel decision spawned review

of many of these statutes, leaving them in a state of contra-

dictory disarray, as demonstrated by the conflict between

Massachusetts, on the one hand, and Illinois, Connecticut

and Florida, on the other, on the issue in this case.

This important issue affects more than a third of the

households with children in nearly half the states. The public

interest in protecting what this Court has termed “the oldest

of the fundamental liberty interests recognized by this

Court,” Troxel, id., will be served by this Court’s clarification

of the question presented in this case.

IV. This Court has Jurisdiction over this Matter,

Even Though Further Proceedings Are Scheduled

in the State Court, Because a Ruling on the Inde-

pendent Federal Issue Will Be Dispositive and

Would Prevent a Disruptive and Harmful Trial.

This Court has jurisdiction over “final judgments” of a

state court, pursuant to 28 U.S.C. § 1257. The final-judgment

jurisdictional pre-requisite has been interpreted to “pre-

clude review ‘where anything further remains to be

determined by a State court, no matter how dissociated

from the only federal issue that has finally been adjudi-

cated by the highest court of the State.” Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 477 (1975) (quoting Radio

Station WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945)).

The Court has recognized, however, that in certain situa-

tions where the highest court of a state has finally decided

the federal issue, but where there are still further state

proceedings, it is appropriate to treat the decision on the

federal issue as a final judgment. In Cox Broadcasting,

this Court articulated four categories of cases in which an

exception to the final judgment rule is warranted. Cox, 420

U.S at 478-486. This case fits the profile of cases in the

fourth Cox category. These are cases in which,

the federal issue has been finally decided in the

state courts with further proceedings pending in

which the party seeking review here might

prevail on the merits on nonfederal grounds,

thus rendering unnecessary review of the federal

issue by this Court, and where reversal of the

state court on the federal issue would be

preclusive of any further litigation on the relevant

cause of action rather than merely controlling the

nature and character of, or determining the

admissibility of evidence in, the state proceedings

still to come.

Cox, 420 U.S. at 482-483.

The instant case meets the standards of this category.

The Supreme Judicial Court ruled that the Massachusetts

grandparent visitation statute does not violate the Equal

_ Protection Clause of the Fourteenth Amendment. The

Court remanded the case to the Probate and Family Court

for further proceedings consistent with its interpretation

of the Due Process requirements of the statute. The case is

scheduled for trial in March 2003.

The instant petition addresses the Supreme Judicial

Court’s ruling on the Equal Protection Clause. This issue

is dispositive. If the Petitioners prevail in this Court, then

no trial will take place. On the other hand, if this Court

declines to review this issue at this time, Ms. Blixt and Mr.

Sousa will be forced to go through an expensive, public

and divisive trial, precisely the kind of litigation both the

majority and the dissent in Troxel agreed could be “so

disruptive of the parent-child relationship that the consti-

tutional right of a custodial parent to make certain basic

determinations for the child’s welfare becomes implicated.”

Troxel v. Granville, 530 U.S. at 75 (quoting Kennedy, J.,

dissenting opinion, Troxel, 530 U.S. at 101). As this Court

noted in Troxel, Petitioners and their son will be irrepara-

bly harmed by such a trial, regardless of its outcome.

Their situation is identical to that in Cox, supra; “They

may prevail at trial on nonfederal grounds, it is true, but if

the [state supreme court] erroneously upheld the statute,

there should be no trial at all.” Cox, 420 U.S. at 485.

Further, if Petitioners are unsuccessful in the Probate

and Family Court, their appeal of the Equal Protection

claim would be merely pro forma, as the state’s highest

court has already ruled against them on this issue. Only

after going through that meaningless state appeal, whose

outcome is certain, would Petitioners have obtained a fully

final judgment from which they could again petition this

Court to finally exercise jurisdiction. In the interim — which

would last for years — their child will be taken from his

mother by court order and compelled to spend time with

his abusive grandparent, which his parents believe will be

harmful to him, against the wishes of both his parents.

CONCLUSION

For the foregoing reasons, Petitioners Kristin Blixt

and Paul C. Sousa respectfully pray that a Writ of Certio-

rari be issued to review the judgment and opinion of the

Massachusetts Supreme Judicial Court.

Dated: December 3, 2002

Respectfully submitted,

HARVEY A. SCHWARTZ

Counsel of Record

LAURIE A. FRANKL

RODGERS, POWERS & SCHWARTZ, LLP

18 Tremont Street

Boston, MA 02108

(617) 742-7010

JOHN REINSTEIN

ACLU FOUNDATION OF

MASSACHUSETTS

99 Chauncy Street, Suite 310

Boston, MA 02111

(617) 482-3170

Attorneys for Petitioners

Kristin Blixt and

Paul C. Sousa

App. 1

JOHN D. BLIXT vs. KRISTIN BLIXT & another.’

SJC-08643

SUPREME JUDICIAL COURT OF

MASSACHUSETTS

437 Mass. 649; 774 N.E.2d 1052

February 5, 2002, Argued

September 9, 2002, Decided

COUNSEL:

George P. Lordan, Jr. (Dennis P. Derrick with him) for

John D. Blixt.

Sheila S. Lewinger for Kristin Blixt.

The following submitted briefs for amici curiae:.

Karen A. Wyle, of Indiana, for Coalition for the Restora-

tion of Parental Rights.

Rochelle Bobroff & Michael Schuster, of the District -of

Columbia, & Deborah Banda for AARP.

Fern L. Frolin, Martin W. Healy, & Carol A.G. DiMento for

Massachusetts Bar Association.

Mary L. Bonauto, Jennifer L. Levi, & Karen L. Loewy for

Gay & Lesbian Advocates & Defenders.

Ronald A. Witmer, Mark I. Berson, & Philip J. Byers for

American Academy of Matrimonial Lawyers, Massachu-

setts Chapter.

* Paul Sousa.

App. 2

Christine Durkin & Pauline Quirion for Greater Boston

Legal Services & another.

David D. Meyer, of Illinois, & Thoms J. Carey, Jr., Pro se.

JUDGES:

Present: Marshall, C.J. Greaney, Ireland, Spina, Cowin,

Sosman, & Cordy, JJ.

OPINION:

GREANEY, J. The plaintiff, John D. Blixt, is the

maternal grandfather of the minor child of the defendants,

a boy born on June 10, 1993. The defendants have never

married each other, but the defendant Paul Sousa has

been adjudicated the child’s father. The child resides with

his mother, the defendant Kristin Blixt (mother) and the

defendants share legal custody of the child. The plaintiff

filed a complaint in the Probate and Family Court seeking

visitation with the child under G.L. c. 119, § 39D, the so-

called grandparent visitation statute (statute). The statute

reads, in pertinent part, as follows:

“If the parents of an unmarried minor child are

divorced, married but living apart, under a tem-

porary order or judgment of separate support, or

if either or both parents are deceased, or if said

unmarried minor child was born out of wedlock

whose paternity has been adjudicated by a court

of competent jurisdiction or whose father has

signed an acknowledgement of paternity, and the

parents do not reside together, the grandparents

of such minor child may be granted reasonable

visitation rights to the minor child during his

minority by the probate and family court de-

partment of the trial court upon a written finding

that such visitation rights would be in the best

App. 3

interest of the said minor child; provided, how-

ever, that such adjudication of paternity or ac-

knowledgment of paternity shall not be required

in order to proceed under this section where ma-

ternal grandparents are seeking such visitation

rights. No such visitation rights shall be granted

if said minor child has been adopted by a person

other than a stepparent of such child and any

visitation rights granted pursuant to this section

prior to such adoption of the said minor child

shall be terminated upon such adoption without

any further action of the court.”

The mother moved, pursuant to Mass. R. Civ. P.

12(bX6), 365 Mass. 754 (1974), to dismiss the grandfa-

ther’s complaint on the ground that the statute was

unconstitutional on its face because it violated her sub-

stantive due process rights under the Fourteenth Amend-

ment to the United States Constitution and cognate

provisions of the Massachusetts Declaration of Rights. See

Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 633 n.4,

417 N.E.2d 387 (1981). She also argued that the statute

violated the equal protection provisions of both the Fed-

eral and State Constitutions. A judge in the Probate and

Family Court, with respect to the mother’s due process

challenge, concluded that the statute was unconstitutional

because it infringed on the defendants’ “fundamental right

to make decisions concerning the care, custody, and control

of their child[{ ].” The judge reasoned that the statute

“contains no presumption that [the defendants] are acting

in [the child’s] best interest in denying visitation, nor ...

contains a requirement that the plaintiff demonstrate how

App. 4

[the child] is harmed by the denial of visitation.” The

grandfather appealed, and we granted the mother’s

application for direct appellate review. We conclude that

the statute survives a facial challenge on due process

grounds and also does not violate equal protection insofar

as the mother’s statutory classification is concerned.’ We,

therefore, vacate the judgment and remand the case for

further proceedings.

1. Due process. The mother’s claim is to be decided

under certain well-established principles governing a

facial constitutional challenge as well as under the

considerations stated by the United States Supreme Court

in Troxel v. Granville, 580 U.S. 57, 147 L. Ed. 2d 49, 120 S.

Ct. 2054 (2000) (Troxel), the only case thus far decided by

that Court on Federal due process (but not equal protec-

tion) implications of grandparent visitation statutes. We

set forth those principles and considerations. The liberty

interests of parents protected by the due process clause of

the Fourteenth Amendment to the United States Constitu-

tion are also protected by our State Constitution. See

McCarthy v. Sheriff of Suffolk County, 366 Mass. 779, 785,

322 N.E.2d 758 (1975). See also Youmans v. Ramos, 429

Mass. 774, 784, 711 N.E.2d 165 (1999). Oar standard of

review for such claims, under either the Federal or State !

Constitution, is the same. See Take Five Vending, Ltd. v.

Provincetown, 415 Mass. 741, 746 n.3, 615 N.E.2d 576

(1993).

* This conclusion obviated the need for the judge to reach the

mother’s challenge to G.L. c. 119, § 39D, on equal protection grounds.

* On April 1, 2002, we entered an order directing the parties to file

supplemental briefs on the equal protection issue.

ical

App. 5

(a) A facial challenge to the constitutional validity of

a statute is the weakest form of challenge, and the one

that is the least likely to succeed. See United States v.

Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct.

2095 (1987). A statute so questioned is presumed constitu-

tional. See Landry v. Attorney Gen., 429 Mass. 336, 343,

709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 145 L.

Ed. 2d 663, 120 S. Ct. 785, (2000). A court may interpret a

statute to set forth considerations to clarify and specify,

and, where necessary, to narrow, the statute’s terms in

order that it may be held constitutional. See Common-

wealth v. Lammi, 386 Mass. 299, 301, 435 N.E.2d 360

(1982). See also Kennedy v. Commissioner of Corps. &

Taxation, 256 Mass. 426, 430, 152 N.E. 747 (1926).

(b) In the Troxel case, Justice O’Connor, writing for a

plurality of the Court, held that § 26.10.160(3) of the

Revised Code of Washington (1994), a nonparental visita-

tion statute under which the plaintiff grandparents sought

visitation with their grandchildren, as applied, unconstitu-

tionally infringed on the defendant mother’s parental

rights protected by Federal due process guarantees.‘

Troxel, supra at 60-61, 67, 120 S. Ct. 2054. See Marks v.

United States, 430 U.S. 188, 193, 51 L. Ed. 2d 260, 97 S.

Ct. 990 (1977), quoting Gregg v. Georgia, 428 U.S. 153, 169

n.15, 49 L. Ed. 2d 859, 96 S. Ct. 2909, (1976) (opinion of

Stewart, Powell, & Stevens, JJ.). The Washington statute

provided:

* The father of the children, the grandparents’ son, had committed

suicide. Troxel v. Granville, 530 U.S. 57, 60, 147 L. Ed. 2d 49, 120 S. Ct.

2054 (2000).

App. 6

“Any person may petition the court for visitation

rights at any time including, but not limited to,

custody proceedings. The court may order visita-

tion rights for any person when visitation may

serve the best interest of the child whether or not

there has been any change of circumstances.”

Troxel, supra at 61, 120 S. Ct. 2054, quoting Wash.

Rev.Code § 26.10.160(3). Noting that the Supreme Court of

Washington had failed to narrowly construe the statute,

the plurality thought that the statute was “breathtakingly

broad” because its language “effectively permits any third

party seeking visitation to subject any decision by a parent

concerning visitation of the parent’s children to state-court

review,” and because the statute “contains no requirement

that a court accord the parent’s decision any presumption

of validity or any weight whatsoever.” Troxel, supra at 67.

The plurality was disturbed that the statute “places the

best-interest determination solely in the hands of the

judge. Should the judge disagree with the parent’s estima-

tion of the child’s best interests, the judge’s view necessar-

ily prevails. Thus, in practical effect, in the State of

Washington a court can disregard and overturn any

decision by a fit custodial parent concerning visitation

whenever a third party affected by the decision files a

visitation petition, based solely on the judge’s determina-

tion of the child’s best interests” (emphasis in original). Id.

Highlighting “extensive precedent,” the plurality went

on to state, “it cannot now be doubted that the Due Proc-

ess Clause of the Fourteenth Amendment protects the

fundamental right of parents to make decisions concerning

the care, custody, and control of their children.” Jd. at 66.

The problem with the application of the statute by the

lower court judge in Washington was that his decisional

App. 7

framework “directly contravened the traditional presump-

tion that a fit parent will act in the best interest of his or

her child.” Id. at 69. The judge's approach, the plurality

explained, “failed to provide any protection for [the

mother’s] fundamental constitutional right to make

decisions concerning the rearing of her own daughters.” Jd.

at 70. The plurality emphasized that “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 becomes subject to judicial review, the court must

accord at least some special weight to the parent’s own

determination” (emphasis added). Id.

The plurality was troubled not only with the judge’s

failure to give any special weight to the mother’s decision

concerning visitation, but also with the judge’s “slender

findings,” “announced presumption in favor of grandpar-

ent visitation,” and “failure to accord significant weight

to [the mother’s] already having offered meaningful

* There had been no allegation or finding that the mother was

unfit, yet the judge improperly placed on her “the burden of disproving

that visitation would be in the best interest of her daughters” (empha-

sis in original). Troxel, supra at 69.

* The judge made only the two following findings. First, that the

grandparents “are part of a large, central, loving family, all located in

this area, and the [grandparents] can provide opportunities for the

children in the areas of cousins and music,” and, second, that “the

children would be benefitted from spending quality time with the

[grandparents], provided that that time is balanced with time with the

childrens’ [sic] nuclear family.” Id. at 72. .

" The judge referred to his “enjoyable [childhood] experience” of

spending one week during the summer with each set of his grandpar-

ents. Id. at 72.

App. 8

visitation to the [grandparents].” Id. at 72. The judge’s

approach to awarding visitation, the plurality stated,

“shows that this case involves nothing more than a simple

_ disagreement between the Washington Superior Court and

[the mother] concerning her children’s best interests.” Id.

The plurality concluded that “the Due Process Clause does

not permit a State to infringe on the fundamental right of

parents to make child rearing decisions simply because a

state judge believes a ‘better’ decision could be made.” Id.

at 72-73.

Importantly, however, the plurality expressly declined

to foreclose the States from enacting grandparent visita-

tion statutes. Id. at 73. This restraint, of course, is not

surprising in view of the following statement by Justice

O’Connor, writing for the plurality, that sums up today’s

family structures:

“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 chil-

dren may have two married parents and grand-

parents 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 ... Understandably, in these

* There was “no allegation that [the mother] ever sought to cut off

visitation entirely.” Id. at 71. The plurality noted that some State

statutes do not permit a visitation award unless a parent has denied or

unreasonably denied visitation to the third party. Jd. at 71-72, citing

Miss. Code. Ann. § 93-16-3(2Xa) (1994); Ore.Rev.Stat. § 109.121(1)aXB)

(1997); R.I. Gen. Laws §§ 15-5-24.3(a)(2\iii)-(iv) (Supp. 1999).

App. 9

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, approxi-

mately 4 million children — or 5.6 percent of all

children under age 18 — lived in the household of

their grandparents.” (Citations omitted.)

Id. at 63-64. In recognition, in part, of this situation,

all fifty States have enacted statutes authorizing some

form of grandparent visitation.’ Jd. at 73 & n.*.

What clearly emerges from the plurality decision in

Troxel, with respect to due process, are the following

principles:

(i) reaffirmation that a parent’s liberty interest

in child rearing is indeed fundamental, and is

certainly fundamental in this context, see Troxel,

supra at 66;

(ii) “any third party” should not be permitted to

seek visitation, see id. at 67;

(iii) in determining whether grandparent visi-

tation should occur, there exists a “presumption

that a fit parent will act in the best interest of

his or her child,” id. at 69, and the decision of a

fit parent concerning grandparent visitation is

entitled to considerable deference, contrast id. at

67; and

* The statutes vary considerably and it would not be helpful to this

opinion to list them and to describe their variations. See R. Bobroff, The

Survival of Grandparent Visitation Statutes, 34 Clearinghouse Rev.

284, 287-288 (2000).

App. 10

(iv) in determining whether grandparent visita-

tion should occur, the potential impact to the

parent-child relationship should be considered,

see id. at 70.

called “strict scrutiny” formula for examining the constitu-

tionality of State infringement on that right comes into

play. See Aime v. Commonwealth, 414 Mass. 667, 673, 611

N.E.2d 204 (1993). This formula traditionally is stated in

terms of requiring (1) a legitimate and compelling State

interest to justify State action, and (2) careful examination

to ascertain whether the action taken was “narrowly

tailored to further [that] interest.” Id. The Troxel case

recognized that a third-party visitation statute implicates

the fundamental right of parents to make decisions con-

cerning the care, custody, and control of their children, see

Troxel, supra at 66. The plurality stated that, given the

fundamental nature of the parental rights at issue, a State

grandparent visitation statute, to be held valid, must

furnish the judge applying it with sufficient objective

criteria to make reasonable decisions based on facts, not

idiosyncratic choices based on undefined amorphous

standards. See Troxel, supra at 73.

The plurality’s approach in the Troxel case has also

been used in our jurisprudence. See E.N.O. v. L.M.M., 429

Mass. 824, 832, 711 N.E.2d 886, cert. denied, 528 U.S.

1005, 145 L. Ed. 2d 386, 120 S. Ct. 500 (1999); Opinion of

the Justices, 427 Mass. 1201, 1203, 691 N.E.2d 911 (1998).

It cannot be disputed that the State has a compelling

interest to protect children from actual or potential harm.

See Prince v. Massachusetts, 321 U.S. 158, 167, 88 L. Ed.

645, 64 S. Ct. 438, (1944); Matter of McCauley, 409 Mass.

134, 1386, 565 N.E.2d 411 (1991). This interest is expressed

App. 11

in a variety of statutes and proceedings, ranging from the

complete severance of parental rights on a judge’s finding

of parental unfitness,” to the limitation of parental choices

in the areas, for example, of education,” health care,” and

safety.” As we shall explain more fully below, the statute

can be interpreted to require a showing of harm to the

child if visitation is not allowed. So interpreted, the

statute furthers a compelling and legitimate State interest

in mitigating potential harm to children in nonintact

families, an area in which the State has been traditionally

and actively involved.

(d) We now turn to the scope of the statute. Contrary

to the Washington statute under review in the Troxel case,

which the plurality found to be “breathtakingly broad,”

Troxel, supra at 67, the Massachusetts statute, enacted

before the Troxel decision, itself limits standing to seek

See G.L. c. 119, §§ 23-29 (care and protection statute); G.L. c.

210, § 3 (adoption statute); G.L. c. 201, § 5 (guardianship statute). See

Custody of a Minor, 389 Mass. 755, 765, 452 N.E.2d 483 (1983) (“par-

ents’ right to custody is not absolute, and it must yield to the welfare of

the child”).

" See, e.g., G.L. c. 76, §§ 1-2 (compulsory school attendance law).

See also Commonwealth v. Renfrew, 332 Mass. 492, 494, 126 N.E.2d

109 (1955).

* See, e.g., G.L. c. 76, § 15 (compulsory child vaccination law). See

also Matter of McCauley, 409 Mass. 134, 136, 565 N.E.2d 411 (1991)

(concluding that best interests of child, and strong interests of the State

over child’s welfare, outweighed parents’ rights, grounded on religion, to

refuse blood transfusions for child).

” See, e.g., G.L. c. 90, § 7AA (requiring children under age of five

years and children weighing forty pounds or less to be secured by a

“child passenger restraint” in motor vehicle, and requiring children

between ages of five and twelve years to wear safety belts while riding

in motor vehicles).

App. 12

visitation to grandparents in certain classes and circum-

stances. The mother readily acknowledges that the statute

is not as broad as the Washington statute reviewed in the

Troxel case, but she argues nonetheless that it cannot

withstand any measure of constitutional scrutiny. We

reject the mother’s argument.

The statute adopts the “best interests of the child”

standard as the test for determining visitation. This

standard has long been used in Massachusetts to decide

issues of custody and visitation and other issues relating

to child welfare. The statute, however, uses the standard

in a new context, and, based on the reasoning in the Troxel

case, the standard, left unspecified, cannot survive a due

process challenge. The interpretive role of an appellate

court now comes into play. As we have mentioned, an

appellate court may, in an appropriate case, construe a

statute to render it constitutional. See, e.g., Yannas uv.

Frondistou-Yannas, 395 Mass. 704, 710-712, 481 N.E.2d

1153 (1985) (discussing relevant factors bearing on the

“best interests” of children that must be considered when

evaluating parent’s motion to remove child from Com-

monwealth pursuant to G.L. c. 208, § 30, despite absence

of specifically enumerated standard or factors in statute).

We conclude that, operating with the guidance of the

Troxel case and our case law in related areas, and law

from other jurisdictions, the traditional best interests

considerations (of which the Legislature is presumed to

have been aware when it enacted the statute) can, and

should, be construed to fit the statute’s context and,

thereby, satisfy due process.

To accord with due process, an evaluation of the best

interests of the child under the statute requires that a

parental decision concerning grandparent visitation be

a ee

. De ee ee eee ee ee ee

App. 13

given presumptive validity. See Troxel, supra at 69.* This

requirement is of paramount importance because the best

interests of children and fundamental parental autonomy

rights traditionally are “cognate and connected.” Petition

of the Dep’t of Pub. Welfare to Dispense with Consent to

Adoption, 383 Mass. 573, 591, 421 N.E.2d 28 (1981),

quoting Bezio v. Patenaude, 381 Mass. 563, 571, 410

N.E.2d 1207 (1980). As Justice O’Connor explained,

quoting Parham uv. J.R., 442 U.S. 584, 602, 61 L. Ed. 2d

101, 99 S. Ct. 2493 (1979):

“The law’s concept of the family rests on a pre-

sumption that parents possess what a child lacks

in maturity, experience, and capacity for judg-

ment required for making life’s difficult deci-

sions. More important, historically it has

recognized that natural bonds of affection lead

parents to act in the best interests of their chil-

dren.”

Troxel, supra at 68. To obtain visitation, the grandpar-

ents must rebut the presumption. The burden of proof will

lie with them to establish, by a preponderance of the

credible evidence, that a decision by the judge to deny

visitation is not in the best interests of the child. More

specifically, to succeed, the grandparents must allege and

prove that the failure to grant visitation will cause the

child significant harm by adversely affecting the child’s

health, safety, or welfare. The requirement of significant

harm presupposes proof of a showing of a significant

preexisting relationship between the grandparent and the

“ The presumption of valid parental decision-making necessarily

requires application of a presumption that the parent is fit.

App. 14

child. In the absence of such a relationship, the grandpar-

ent must prove that visitation between grandparent and

child is nevertheless necessary to protect the child from

significant harm. Imposition of the standards just stated,

as explained in specific written findings by the judge, see

Guardianship of Norman, 41 Mass.App.Ct. 402, 407, 670

N.E.2d 414 (1996), ensures a careful balance between the

possibly conflicting rights of parents in securing their

parental autonomy, and the best interests of children in

avoiding actual harm to their well-being.

These standards do not require de facto parental

status on the part of the grandparents, but the standards

are consistent with our cases concerning de facto parents.

These cases recognize that disruption of a child’s preexist-

ing relationship with a nonbiological parent can be poten-

tially harmful to the child, and they hold that such a

relationship may be protected by court-ordered visitation

with a nonparent over a fit parent’s objection. See E.N.O.

v. L.M.M., supra at 834, 830, 711 N.E.2d 886 (concluding

that judge properly allowed de facto parent’s motion for

temporary visitation with child and, in considering the

motion, properly considered whether such visitation would

be in the child’s best interests); Youmans v. Ramos, 429

Mass. 774, 782-783, 711 N.E.2d 165 (1999) (concluding

that judge may order visitation between child and mater-

nal aunt who was child’s de facto parent after considering

the best interests of the child).* The standards we have

* One definition of the term “de facto parent” is: “A de facto parent

is an individual other than a legal parent or a parent by estoppel who,

for a significant period of time not less than two years, (i) lived with the

child and, (ii) for reasons primarily other than financial compensation,

and with the agreement of a legal parent to form a parent-child

(Continued on following page)

App. 15

established are also consistent with considerable authority

elsewhere concerning the issue of grandparent visitation.”

relationship, or as a result of a complete failure or inability of any legal

parent to perform caretaking functions, (A) regularly performed a

majority of the caretaking functions for the child, or (B) regularly

performed a share of caretaking functions at least as great as that of

the parent with whom the child primarily lived.” ALI Principles of the

Law of Family Dissolution § 2.03(c) (Tent. Draft No. 4 2000).

(requiring “some other special factor such as harm to the child or

custodial unfitness that justifies State interference”); Roth v. Weston,

259 Conn. 202, 229, 789 A.2d 431 (2002) (“{[State] interference [with

parental decisions] is justified only when it can be demonstrated that

there is a compelling need to protect the child from harm. In the

absence of a threshold requirement of a finding of real and substantial

harm to the child as a result of the denial of visitation, forced interven-

tion by a third party seeking visitation is an unwarranted intrusion

into family autonomy”); Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla.1998)

(“Neither the legislature nor the courts may properly intervene in

parental decisionmaking absent significant harm to the child threat-

ened by or resulting from those decisions”); Brooks v. Parkerson, 265

Ga. 189, 193, 194, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 133 L. Ed.

2d 301, 116 S. Ct. 377 (1995) (because “State interference with parental

rights to custody and control of children is permissible only where the

health or welfare of a child is threatened,” State may not order grand-

parent visitation absent “a showing that failing to do so would be

harmful to the child”); Wickham v. Byrne, 199 Ill. 2d 309, 317, 263 Ill.

Dec. 799, 769 N.E.2d 1 (2002) (interference in parent’s decision may

only occur “when the health, safety, or welfare of a child is at risk”);

Neal v. Nesvold, 2000 OK 90, 14 P.3d 547, 550 (Okla.2000) (visitation

order unconstitutional “absent a showing of harm” to child); Hawk v.

Hawk, 855 S.W.2d 573, 577, 579 (Tenn.1993) (“.“hen no substantial

harm threatens a child’s welfare, the State lacks a sufficiently compel-

ling justification for the infringement on the fundamental right of

parents to raise their children as they see fit”); Williams v. Williams,

256 Va. 19, 21-22, 501 S.E.2d 417 (1998) (visitation statute constitu-

tional because “court reaches consideration of the ‘best interest’

standard in determining visitation only after it finds harm if visitation

is not ordered”). See also Roth v. Weston, supra at 226 (“proof of a close

(Continued on following page)

App. 16

We conclude, in rejection of the facial due process

challenge made by the mother, that the statute satisfies

strict scrutiny because our construction narrowly tailors it

to further the compelling State interest in protecting the

welfare of a child who has experienced a disruption in the

family unit from harm.

2. Equal protection. The mother claims that the

statute violates equal protection because its classifications

impermissibly burden parents of “non-traditional families”

with litigation affecting their parental decisions. She

correctly states that the statute does not apply to grand-

parents of a minor child whose parents are living together.

The mother maintains that “there are no distinguishing

characteristics of widowed, divorced or otherwise single

parents relevant to any interest of the State in promoting

grandparent visitation under any standard of review.”

Essentially, the mother argues that the statute is both

“underinclusive,” because it does not burden biological

parents of minor children who are living together at the

time the petition is filed, and “overinclusive,” because

it burdens a single parent, or any two parents living

and substantial relationship [with party seeking visitation] and

significant harm should visitation be denied are, in effect, two sides of

the same coin”); Skov v. Wicker, 32 P.3d 1122, 1126-1127 (Kan.2001) (to

uphold constitutionality of grandparent visitation statute, court added

requirement that grandparent prove existence of “a substantial

relationship with the grandchildren”); Rideout v. Riendeau, 2000 ME

198, 761 A.2d 291, 301 (Me.2000) (because “cessation of contact with a

grandparent whom the child views as a parent may have a dramatic,

and even traumatic, effect upon the child’s well-being,” there is a

compelling State interest in protecting “child’s significant need to be

assured that he or she will not unnecessarily lose contact with a

grandparent who has been a parent to that child”).

App. 17

separately, but who are, nonetheless, fully capable of

making decisions in their children’s best interest.

(a) Because the statute’s classifications implicate

fundamental parental rights, “strict scrutiny” analysis is

again appropriate to evaluate the mother’s equal protec-

tion challenge. See English v. New England Med. Ctr., Inc.,

405 Mass. 423, 428, 541 N.E.2d 329 (1989), cert. denied,

493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 866 (1990);

Paro v. Longwood Hosp., 373 Mass. 645, 649 & n.6, 369

N.E.2d 985 (1977). Under this analysis, a statutory classi-

fication is permissible if it “furthers a demonstrably

compelling interest of the State and limits its impact as

narrowly as possible consistent with the purpose of the

classification.” Opinion of the Justices, 374 Mass. 836, 838,

371 N.E.2d 426 (1977).”

(b) We review the validity of the statute on equal

protection grounds only as it pertains to the class in

which the mother belongs, that is, a parent of a nonmari-

tal child born out of wedlock, living apart from the child’s

other parent, in this case, the child’s father. “ There is no

reason in this case to depart from the established rule,

followed both in Massachusetts and Federal courts, that,

“ordinarily one may not claim standing . . . to vindicate the

constitutional rights of some third party.” Slama v. Attor-

" The standard for evaluating equal protection cheilenges under

our State Constitution is the same as the standard under the Federal

Constitution. See Chebazco Liquor Mart, Inc. v. Alcoholic Beverages

Control Comm’n, 429 Mass. 721, 723, 711 N.E.2d 135 (1999); Tobin’s

Case, 424 Mass. 250, 252, 675 N.E.2d 781 (1997); Commonwealth v.

Franklin Fruit Co., 388 Mass. 228, 235, 446 N.E.2d 63 (1983).

* The mother does not challenge the paternity requirement in the

classification.

App. 18

ney Gen., 384 Mass. 620, 624, 428 N.E.2d 134 (1981),

quoting Barrows v. Jackson, 346 U.S. 249, 255, 97 L. Ed.

1586, 73 S. Ct. 1031 (1953). See New York v. Ferber, 458

U.S. 747, 767-768 & n.20, 73 L. Ed. 2d 1113, 102 S. Ct.

3348 (1982); United States v. Raines, 362 U.S. 17, 21, 4 L.

Ed. 2d 524, 80 S. Ct. 519 (1960). Stated somewhat differ-

ently in Massachusetts Comm’n Against Discrimination v.

Colangelo, 344 Mass. 387, 390, 182 N.E.2d 595 (1962),

“only one whose rights are impaired by a statute can raise

the question of its constitutionality, and he can object to

the statute only as applied to him” (emphasis added). See

Broadhurst v. Fall River, 278 Mass. 167, 170, 179 N.E. 586

(1932). See also Cleburne v. Cleburne Living Ctr., Inc., 473

U.S. 432, 437, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (“to

avoid making unnecessarily broad constitutional judg-

ments,” “preferred course” should be inquiry concerning

statute as applied). Contrary to the rationale of the dissent

of Justice Sosman, there is no exception to these rules

governing standing permitting challenges to certain

classifications if those classifications happen to share one

particular characteristic, here, parents living apart. The

other classifications in the statute contain characteristics

that do not apply to the mother: she is not divorced, she is

not married, she is not a widow. Those classifications raise

different characteristics and different issues that may be

challenged only by persons who are members of those

classes. It is inappropriate for us to examine them, and

Justice Sosman’s dissent does so in a diffused, scattershot

effort to invalidate the statute on any basis.”

” Curiously, while Justice Sosman’s dissent mistakenly states that

the statute’s classifications are “predicated entirely on the parents’

living arrangements,” post at (Sosman, J., dissenting), the dissent then

(Continued on following page)

App. 19

concerns, the Troxel decision instructs us that it may be

constitutionally permissible for a State to authorize court-

ordered visitation in some situations, and not in others, as

long as the visitation is ordered in carefully limited cir-

cumstances. See 530 U.S. at 67, 73. Classifications within

statutes authorizing some form of grandparent visitation

grant standing depending on, in some States, the existence

of a preexisting relationship with the child” or, the domes-

tic situation of the child’s parents.” The mother asserts

that classifications based on the living arrangements of a

child’s parents unfairly intrude into the lives of single

goes on to discuss the circumstances of, and acknowledge, the particu-

lar characteristics (those different from living arrangements) of the

classifications to which the mother does not belong.

® See, e.g., Cal. Fam.Code § 3104(a)(1) (Deering 1994); Kan. Stat.

Ann. § 38-129(a) (2000); Iowa Code Ann. § 598.35(7) (2001); Wash.

Rev.Code Ann. § 26.09.240(5)a) (1997) (standing to petition for visita-

tion accorded to grandparent with significant relationship to child).

* This approach is one taken by a large number of States. Bobroff,

The Survival of Grandparent Visitation Statutes, 34 Clearinghouse Rev.

284, 287 & n.16 (2000). See, e.g., Ariz.Rev.Stat. § 25-409(A)(1) and (2)

(West 2000) (when marriage of child’s parents dissolved, or one parent-

deceased or missing, for three months); Ark.Code Ann. § 9-13-

103(aX1)A) (2002) (when marital relationship between parents severed

by death, divorce, or legal separation); Fla. Stat. Ann. § 752.01(1) (West

Supp.2002) (when marriage of parents of child dissolved, one parent

has deserted child, or child born out of wedlock); N.H.Rev.Stat. Ann.

§ 458:17-d (1992) (when child’s nuclear family is subject of “divorce,

death, relinquishment or termination of parental rights” [unless

grandparent’s access to child earlier, or contemporaneously, restricted],

O’Brien v. O’Brien, 141 N.H. 435, 437, 684 A.2d 1352] 1996)).

App. 20

parents, such as herself, and constitute “an outmoded

notion of their capabilities as parents.””

However, the mother mistakes the focus of our grand-

parent visitation statute. The statute’s intent, as we have

stated, is not to penalize parents but to safeguard chil-

dren. Cf. G.L. c. 119, § 1 (stating Commonwealth’s policy

“to provide substitute care of children only when the

family itself or the resources available to the family are

unable to provide the necessary care and protection to

insure the rights of any child to sound health and normal

physical, mental, spiritual and moral development”);

Custody of a Minor, 389 Mass. 755, 767-768, 452 N.E.2d

483 (1983) (in care and protection proceeding pursuant to

G.L. c. 119, § 24, purpose of court’s inquiry must be di-

rected to protecting children from actual harm and not to

penalizing parents). Hardly a more compelling State

interest exists than to keep children safe from the kinds of

physical or emotional trauma that may scar a child’s

* We appreciate this concern but do not consider it dispositive. The

United States Supreme Court has recognized that social consensus

about family relationships is relevant to the constitutional limits on

State intervention. See Zablocki v. Redhail, 434 U.S. 374, 395, 54 L. Ed.

2d 618, 98 S. Ct. 673 (1978); Moore v. East Cleveland, 431 U.S. 494, 496,

52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977); Belle Terre v. Boraas, 416 U.S.

1, 2, 8-9, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974). Given the continual

reinterpretation of the notion of “family,” and of who may be a “parent,”

constitutional jurisprudence in this area is not easily applied, particu-

larly to persons defined by status. See Dolgin, The Constitution as

Family Arbiter: A Moral in the Mess?, 102 Colum. L.Rev. 337, 405

(2002). To that end, the dissent assumes that gay and lesbian couples

would not be considered “parents” under the statute. While G.L. c. 119,

§ 21, defines the term “parent” as meaning “mother or father,” those

terms are not defined, and, we need not define them in this case.

App. 21

“health and ... physical, mental, spiritual and moral

development” well into adulthood.

The Legislature has long recognized, as it may, consis-

tent with our Federal and State Constitutions, that

children whose parents are unmarried and live apart may

be at heightened risk for certain kinds of harm when

compared witl. children of so-called intact families. See,

e.g., G.L. c. 209C, §9 (court may issue support orders

protecting rights of nonmarital children to, among other

things, parental financial support and adequate health

insurance). That children whose unmarried parents live

apart may be especially vulnerable to real harm from the

loss or absence of a grandparent’s significant presence is a

permissible legislative conclusion, drawn from social

experience and consistent with the State’s compelling

interest in protecting minors from harm. As Troxel recog-

nizes, studies show that, in the over one-quarter of house-

holds in which children are raised by single parents,

grandparents may riay an increasingly important role in

child rearing, Troxel, supra at 63-64., 120 S. Ct. 2054

Thus, grandparents may play an increasingly important

role in a child’s development. This important role, when it

does develop, does not arise by accident, but by a parent’s

deliberate choice to invite the grandparent into the family

fold, and to permit (or encourage) a bond between grand-

parent and grandchild that may then become crucial to the

child’s physical or emotional security. In such situations,

the State’s intervention may be necessary to secure the

child’s well-being from traumatic separation from the

grandparent. Such intervention has nothing to do with

appeasing a grandparent’s hurt feelings, castigating a

parent’s lifestyle, or perpetuating an illusion of family

unity. It has everything to do with protecting the child,

App. 22

insofar as possible, by preserving the fruits of significant

developmental attachment whose seeds were planted by a

parent. Cf. E.N.O. v. L.M.M., 429 Mass. 824, 833, 711

N.E.2d 886 (1999) (where defendant encouraged plaintiff

to become child’s de facto parent and such relationship

was formed between child and plaintiff, “defendant’s

parental rights do not extend to the extinguishment of the

child’s relationship with the plaintiff”).

Moreover, the Legislature may, within its narrow field

of action under our equal protection guarantees, presume

that the burden of the traumatic loss of a grandparent’s

significant presence may fall most heavily on the child

whose unmarried parents live apart and who may not

have or be able to draw on the resources of two parents in

coping with his or her loss. Such a child may already be

vulnerable to the feelings of loss, inadequacy, and insecu-

rity that our society still often visits on those children

whose family structure departs from an idealized two-

parent norm. This is not to say that every child whose

parents are unmarried and live apart is particularly

vulnerable to the harm of a grandparent’s absence, or that

every child in a two-parent household will be shielded

from such harm. We merely hold that the Legislature does

not offend the principles of equal protection, as seen

through the narrow lens of strict scrutiny, by confining the

reach of the grandparent visitation statute, as we construe

it today, to a discrete class of children within the discrete

class of households at issue.

Justice Sosman’s dissent seeks to conjure up circum-

stances of family disruption in the statute’s classifications,

and then concludes that the disruption should not affect

parental rights. For example, her dissent points to circum-

stances where divorced parents might agree that visitation

App. 23

with a particular grandparent is undesirable. Such a

situation is not unlike the one presented in this case, in

which both parents, though never married and living

apart, do not want the requested visitation to occur.

These considerations, however, become relevant after the

threshold issue of standing is satisfied. They are matters

that are relevant to an as-applied analysis, but not to a

facial equal protection challenge. In addition, the plethora

of hypothetical situations concocted in her dissent’s ad

terrorem approach discloses that the dissent has com-

pletely ignored the harm requirement — the State will not

intrude into a nonintact family in the absence of a showing

of significant harm. None of the situations conjured up by

the dissent involves a situation where there is actual harm

to the child. Again, the dissent attempts to invalidate the

statute on any ground it possibly can contrary to our duty

to uphold the statute. Because the classification narrows

the impact of the statute, while furthering a compelling

State interest, it survives an equal protection challenge.

The dissent ignores this important, and ultimately deci-

sive, consideration.”

* The record reflects that the mother and father, with the child,

lived together for approximately one and one-half years after the child’s

birth.

* It is important as well that procedural requirements, to be

discussed in Part 3 of this opinion, ensure that a parent is not subjected

to a full hearing merely because he or she falls within the scope of the

statute’s reach. The statute merely affords a grandparent the opportu-

nity to produce evidence that circumstances are severe enough to

warrant a court’s review of the parent’s decision to deny visitation.

Further, by establishing the presumption of valid parental decision-

making, and by adopting a best interest of the child standard that

(Continued on following page)

App. 24

3. Pleading requirements under statute. There is one

other matter with respect to the statute that needs to be -

addressed. A complaint under the statute for grandparent

visitation is brought under the rules of civil procedure.”

The complaint is essentially notice pleading, as was the

grandfather’s complaint, which simply asked for “visita-

tion.” As recognized by the plurality in the Troxel case,

“the burden of litigating a domestic relations proceeding

can itself be ‘so disruptive of the parent-child relationship

that the constitutional right of a custodial parent to make

certain basic determinations for the child’s welfare be-

comes implicated.’” Troxel, supra at 75, quoting zd. at 101

(Kennedy, J., dissenting). Notice pleading does not safe-

guard these concerns.

Before a parent or parents are called upon to litigate

fully a grandparent visitation complaint, with all the

attendant stress and expense, the grandparent or grand-

parents should make an initial showing that satisfies a

judge that the burden of proof, set forth above, can be met.

To this end, any complaint filed under the statute should

be detailed and verified or be accompanied by a detailed

and verified affidavit setting out the factual basis relied on

by the plaintiffs to justify relief.” A complaint not so

verified, or one accompanied by an inadequate affidavit,

incorporates a significant harm requirement, the statute ensures that

both interests, that of parent and child, will be safeguarded.

* The Massachusetts Rules of Domestic Relations Procedure do not

apply to complaints for grandparent visitation. See Mass. R. Dom. Rel.

P. 1 (2002).

* The standard form now apparently in use in the Probate and

Family Court will need to be revised to reflect the standards we have

enunciated.

i i ee = Sean

App. 25

would be subject to dismissal (or summary judgment) on

motion by the defendant or defendants. This procedure

should minimize the burden placed on a parent or parents

to defend against unwarranted actions.

4. Remand. The present case was dealt with by the

judge on a motion to dismiss. We have concluded that the

action should not have been dismissed. There is pending a

request for summary judgment and affidavits and other

materials are in the record dealing with the question of

summary judgment. The judge may choose to deal with

the case on the summary judgment record after allowing

the parties a reasonable opportunity to file additional

materials. The judge may also take any other action

necessary or appropriate to decide the case. The judgment

dismissing the complaint is vacated, and the case is to

stand for further proceedings in the Probate and Family

Court consistent with this opinion.

So ordered.

CONCUR By:

COWIN (In Part)

DISSENT BY:

COWIN (In Part); SOSMAN

DISSENT:

COWIN, J. (dissenting in part).

I join with that portion of Justice Sosman’s dissent

that would declare the statute unconstitutional on its face

because it infringes on parents’ fundamental right to make

decisions concerning the upbringing of their children.

In that regard, I agree with Justice Sosman (a) that

the statute violates due process guarantees because its

App. 26

substantive provisions fail to satisfy the requirement that

they be narrowly tailored to serve a compelling State

interest; and (b) that the court has impermissibly rewrit-

ten the statute in an effort to make it comply with due

process requirements.

Because the court has determined that the statute

(“as rewritten”) satisfies due process requirements, it

considers the validity of the statute on equal protection

grounds “as it pertains to the class in which the mother

belongs, that is, a parent of a nonmarital child born out of

wedlock, living apart from the child’s other parent, in this

case, the child’s father.” Ante at. I agree with this portion

of the court’s opinion that concludes that “the Legislature

does not offend the principles of equal protection, as seen

through the narrow lens of strict scrutiny, by confining the

reach of the grandparent’s visitation statute, as [the court]

construes it today, to a discrete class of children within the

discrete class of households at issue.” Ante at.

SOSMAN, J. (dissenting, with whom IRELAND, J.,

joins).

The grandparent visitation statute at issue in today’s

opinion, G.L. c. 119, § 39D, infringes on parents’ funda-

mental right to make decisions concerning the upbringing

of their children. It also creates classifications of parents,

subjecting some of them to State interference in parental

decision-making while leaving others free of such interfer-

ence. As drafted, the statute violates both due process and

equal protection guarantees, as neither its substantive

provisions nor its classifications satisfy the requirement

that they be narrowly tailored to serve a compelling State

interest. Recognizing that the statute as drafted cannot

withstand strict scrutiny, the court has simply substituted

enimmaiiiiiiiaiiiaiieeaiael

+ ee ee eT eee Tee ee Pe

App. 27

for the statute’s actual provisions a general statement

articulating the minimum constitutional requirements for

such a statute and, for good measure, invented a special

rule of pleading for grandparent visitation cases. This

overhaul of the statute cannot be justified as mere “inter-

pretation.” Where, as here, the statute is unconstitutional

on its face, it is our job to say so and to let the Legislature

rewrite the statute if and as it wishes.

The court also opts to sidestep many of the equal

protection problems posed by the statute’s classifications,

focusing in isolation on the classification into which these

parents fall, despite the fact that all of the classifications

are predicated on a single requirement, i.e., that the

child’s biological parents are not presently living together.

As to the classification encompassing these particular

parents, the court mistakenly assumes that that classifica-

tion is narrower than what the statute actually provides,

and then resorts to vague stereotypes to justify the classi-

fication it has misdescribed. The equal protection analysis

applied today resembles the “rational basis” test, not the

test of “strict scrutiny” that is to be applied to statutes

that implicate fundamental liberty interests. I therefore

dissent.

1. Substantive due process. The court acknowledges,

as it must, that a statute impinging on parental decision-

making implicates a fundamental right. Ante at. “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.” Troxel v. Granville, 530 U.S. 57,

65, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (Troxel).

“Where a right deemed to be ‘fundamental’ is involved,

courts ‘must examine carefully the importance of the

App. 28

governmental interests advanced and the extent to which

they are served by the challenged regulation,’ ... and

typically will uphold only those statutes that are narrowly

tailored to further a legitimate and compelling govern-

mental interest.” Aime v. Commonwealth, 414 Mass. 667,

673, 611 N.E.2d 204 (1993), quoting Moore v. East Cleve-

land, 431 U.S. 494, 499, 52 L. Ed. 2d 531, 97 S. Ct. 1932

(1977). “Under our free and constitutional government, it

is only under serious provocation that we permit interfer-

ence by the State with parental rights.” Custody of a

Minor (No. 3), 378 Mass. 732, 749, 393 N.E.2d 836 (1979).

“Parental rights to raise one’s children are essential, basic

rights that are constitutionally protected,” and, therefore,

“State intrusion in the rearing of children by their parents

may be justified only in limited circumstances.” Adoption

of Vito, 431 Mass. 550, 562, 563, 728 N.E.2d 292 (2000).

a. Compelling State interest. The State’s interest in

“protecting the well-being of children” qualifies as a

compelling State interest. Matter of McCauley, 409 Mass.

134, 137, 565 N.E.2d 411 (1991). See Prince v. Massachu-

setts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438

(1944). The State’s legitimate and compelling interest in

the welfare of children, however, does not encompass all

things that might be beneficial to children and does not

confer on the State a power to mandate, over the objection

of a fit, competent parent, anything that might be viewed

as desirable for young people. Rather, in context, what has

been recognized within the sphere of a compelling State

interest to protect the “well-being of children” is an inter-

est to prevent injury, abuse, trauma, exploitation, severe

deprivation, and other comparable forms of significant

harm. See id. at 168 (restrictions on child labor could

constitutionally be enforced against parent to prevent “the

App. 29

crippling effects of child employment”); Matter of

McCauley, supra at 138 (court-ordered blood transfusion to

avert “certain death” of child); Opinion of the Justices, 427

Mass. 1201, 1208-1209 (1998) (upholding rebuttable

presumption in custody disputes that child not be placed

with abusive parent). The United States Supreme Court

has also identified compulsory education and compulsory

vaccination as examples of other types of requirements the

State may impose against a parent’s wishes. Prince v.

Massachusetts, supra at 166. “[T]he power of the parent,

even when linked to a free exercise claim, may be subject

to limitation under Prince if it appears that parental

decisions will jeopardize the health or safety of the child,

or have a potential for significant social burdens.” Wiscon-

sin v. Yoder, 406 U.S. 205, 233-234, 32 L. Ed. 2d 15, 92 S.

Ct. 1526 (1972). See Pierce v. Society of Sisters, 268 U.S.

510, 534, 69 L. Ed. 1070, 45 S. Ct. 571 (1925) (State could

not countermand parents’ decision to send children to

private school because those decisions were “not inher-

ently harmful” to child).

Thus, the State has a compelling interest in protecting

children from significant deprivation, injury, or harm. It

does not have a compelling interest in supervising a child’s

upbringing merely because it thinks it can do a better job

than the child’s parents. “The Due Process Clause does not

permit a State to infringe on the fundamental right of

parents to make child rearing decisions simply because a

state judge believes a ‘better’ decision could be made.”

Troxel, supra at 72-73. “Mere improvement in quality of

life is not a compelling state interest and is insufficient to

justify invasion of constitutional rights. So long as a family

satisfies certain minimum standards with respect to the

care of its children, the state has no interest in attempting

App. 30

to ‘make things better.” King v. King, 828 S.W.2d 630,

634, 39:3 Ky. L. Summary 24 (Ky.) (Lambert, J., dissent-

ing), cert. denied, 506 U.S. 941, 121 L. Ed. 2d 289, 113 S.

Ct. 378 (1992).

Healthy relationships with grandparents are unques-

tionably of benefit to children. That such relationships are

good for children does not allow the State to force such

relationships on them contrary to the wishes of their

parents. “[A] vague generalization about the positive

influence many grandparents have upon their grandchil-

dren falls far short of the necessary showing of harm

which would warrant the state’s interference with this

parental decision regarding who may see a child.” Matter

of Herbst, 1998 OK 100, 971 P.2d 395, 399 (Okla.1998).

Like many other things in the vast array of beneficial

associations, activities, and resources that might be

desirable for children, their fit parents — not the State —

are the ones to choose which will be best for them. “There

may be many beneficial relationships for a child, but it is

not for the government to decide with whom the child

builds these relationships.” Von Eiff v. Azicri, 720 So. 2d

510, 516 (Fla.1998).

Of course, when something is necessary to a child’s

“well-being,” the State may intervene to make sure that

the child is not deprived of that necessity. See, e.g., Cus-

tody of a Minor (No. 3), 378 Mass. 732, 393 N.E.2d 836

(1979) (medical treatment of child’s leukemia). Grandpar-

ents, as wonderful as they are, are not a necessity. Chil-

dren can and do grow up to be healthy, stable, productive

members of society without them. Depriving children of

relationships with their grandparents is not the equiva-

lent of depriving them of health care, food, shelter, secu-

rity, or a basic education. See Santi v. Santi, 633 N.W.2d

App. 31

312, 318 (lowa 2001) (no compelling State interest served

by grandparent visitation statute, noting that “the case

before us is not about car seats or vaccinations”).

Troxel has not expanded the scope of compelling State

interests in this area. Because the Court was able to

resolve Troxel on the ground that the visitation statute at

issue had been unconstitutionally applied, it did “not

consider ... whether the Due Process Clause requires all

nonparental visitation statutes to include a showing of

harm or potential harm to the child as a condition prece-

dent to granting visitation” (emphasis added). Troxel,

supra at 73. Given the wide variety of visitation statutes

across the country, with varying standing requirements

and differing substantive provisions, the Court was

understandably reluctant to make broad pronouncements

on this sensitive subject when such pronouncements did

not have to be made. Similarly, in the absence of any

showing even resembling “harm” on the record presented,

the Court had no occasion to expound on what forms of

“harm” might justify State interference in parents’ deci-

sions concerning visitation, preferring to leave open the

possibility that States might be able to identify compelling

interests in this area that might not fit squarely within

the conventional meaning of “harm to the child.”

Notwithstanding such reticence in Troxel, many State

courts considering visitation statutes have held that State

interference in parental decisions cannot be justified in the

absence of harm to the child or a showing of parental

unfitness. “Although the plurality in Troxel avoided the

issue, its prior decisions clearly reflect a tolerance for

interference with parental decisions only when the health

or safety of the child will be jeopardized or there exists the

potential for significant social burdens.” Roth v. Weston,

App. 32

259 Conn. 202, 228, 789 A.2d 431 (2002). “Consequently,

interference is justified only when it can be demonstrated

that there is a compelling need to protect the child from

harm. In the absence of a threshold requirement of a

finding of real and substantial harm to the child as a

result of the denial of visitation, forced intervention by a

third party seeking visitation is an unwarranted intrusion

into family autonomy.” Jd. at 229.

Consistent with censiderable precedent from other

States, both pre- and post-Troxel, today’s decision appro-

priately recognizes that visitation orders would be uncon-

stitutional absent a showing of significant harm to the

child. Ante at, n.16.' See Linder v. Linder, 348 Ark. 322,

352, 72 S.W.3d 841 (2002); Roth v. Weston, supra at 205-

206; Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla.1998);

Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla.1996); Brooks

v. Parkerson, 265 Ga. 189, 193, 194, 454 S.E.2d 769, cert.

denied, 516 U.S. 942, 133 L. Ed. 2d 301, 116 S. Ct. 377

(1995); Wickham v. Byrne, 199 Ill. 2d 309, 317, 263 Ill. Dec.

799, 769 N.E.2d 1 (2002); Neal v. Nesvold, 2000 OK 90, 14

* Today’s opinion does not seek to justify the visitation statute on

the ground that it protects any “right” of grandparents. Grandparents

have no constitutional “right” to visit their grandchildren, nor was any

such “right” recognized at common law. See Troxel v. Granville, 530 U.S.

57, 97, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) (Kennedy, J., dissent-

ing), and cases cited; Linder v. Linder, 348 Ark. 322, 348, 72 S.W.3d 841

(2002); Von Eiff v. Azicri, 720 So.2d 510, 511 (Fla.1998), and cases cited;

Rideout v. Riendeau, 2000 ME 198, 761 A.2d 291, 301 n.16 (Me.2000). A

grandparent’s desire to enjoy a relationship with a grandchild, no

matter how intense, is not a “right” to have such a relationship. No one

has a “right” to associate with other people’s children, and the mere fact

that a person is a blood relative of those children does not confer any

such “right.” As such, today’s opinion wisely declines to identify

protection of a nonexistent “right” as a justification for this statute.

App. 33

P.3d 547, 550 (Okla.2000); Matter of Herbst, 1998 OK 100,

971 P.2d 395, 398 (Okla.1998); Hawk v. Hawk, 855 S.W.2d

573, 577, 579 (Tenn.1993); Williams v. Williams, 256 Va.

19, 21-22, 501 S.E.2d 417 (1998).

However, our grandparent visitation statute, as

drafted, allows a judge to order visitation, over a fit

parent’s objection, whenever the judge concludes that such

visitation would be “in the best interest” of the child. G.L.

c. 119, § 39D. Mere invocation of the child’s “best interest”

does not, by itself, amount to a compelling State interest,

and Troxel expressly held that that “best interest” stan-

dard, standing alone, would not pass constitutional mus-

ter. See Troxel, supra at 67-68 (court cannot overturn

parent’s decision “based solely on the judge’s determina-

tion of the child’s best interests”); Wickham v. Byrne, supra

at 320-321 (visitation statute premised on judicial deter-

mination of “the best interests and welfare of the child”

unconstitutional on its face); DeRose v. DeRose, 249 Mich.

App. 388, 394-395, 643 N.W.2d 259 (2002) (visitation

statute premised on “best interests of the child” standard

is unconstitutional on its face); Rideout v. Riendeau, 2000

ME 198, 761 A.2d 291, 301 (Me.2000) (“something more

than the best interest of the child must be at stake in

order to establish a compelling state interest”).

As drafted, our grandparent visitation statute allows

a judge to determine a child’s “best interest” and, predi-

cated solely on that determination, to countermand the

decision of the child’s fit, competent parents. The statute

operates on the simple but erroneous assumption that

judges are best equipped to resolve these intra-family

App. 34

disputes, and assumes that judges can therefore best

decide whether and on what terms children should visit

with their grandparents.’ The statute is not limited to

cases where significant harm from the parent’s decision

has been demonstrated. It does not even require any

showing of a preexisting relationship between the grand-

parent and the child. It does not require any showing of

parental unfitness or even some parental shortcoming

akin to or suggesting a risk of unfitness. As such, it is not

narrowly tailored to serve any compelling State interest,

and therefore does not withstand strict scrutiny.

? It also assumes that relationships with grandparents that are

forced in this manner can confer a benefit on children. This is at best a

dubious proposition. The warm, nurturing, and loving relationships we

had with our grandparents were not the product of divisive intra-family

litigation and court orders that undermined our parents’ authority.

“Forced visitation in a family experiencing animosity between a child’s

parents and grandparents merely increases the potential for animosity

and by its very nature cannot therefore be ‘in the child’s best interest.’”

Hawk v. Hawk, 855 S.W.2d 573, 576 n.1 (Tenn.1993). “Even if such a

bond [between child and grandparent] exists and would benefit the

child if maintained, the impact of a lawsuit to enforce maintenance of

the bond over the parents’ objection can only have a deleterious effect

on the child.” Brooks v. Parkerson, 265 Ga. 189, 194, 454 S.E.2d 769,

cert. denied, 516 U.S. 942, 133 L. Ed. 2d 301, 116 S. Ct. 377 (1995). A

grandparent visitation statute will often be “invoked by grandparents

whose relationship with their own children has failed so badly that they

must resort to lawsuits to visit the relationship problems with their

children on the next generation. Where parent-grandparent lifestyle

choices differ and relationships are strained, the law presents the

prospect of competent parents being caught in a withering crossfire of

lawsuits by as many as four sets of grandparents demanding involve-

ment in the grandchildren’s lives. ... Each such resolution, successful

for the grandparents, will usurp the parents’ authority over the child

and unavoidably insert the stress of litigation, dispute, and uncertainty

into the grandchildren’s lives.” Rideout v. Riendeau, 2000 ME 198, 761

A.2d 291, 309-310 (Me.2000) (Alexander, J., dissenting).

App. 35

b. Redrafting the statute. Recognizing that our

grandparent visitation statute’s reliance on the “best

interest” of the child standard “cannot survive a due

process challenge” in the wake of Troxel, ante at, the court

today seeks to salvage its constitutionality by “interpret-

ing” the term “best interest” to include the requirement

that a fit parent’s decision on visitation be given “pre-

sumptive validity” and allowing grandparents to overcome

that presumption only if they establish, by a preponder-

ance of the evidence, that the denial of visitation will

“cause the child significant harm by adversely affecting

the child’s health, safety, or welfare.” Ante at. In short,

whereas Troxel held that a visitation order predicated

solely on a determination of the child’s “best interest”

cannot stand, today’s opinion merely takes all of the

principles of Troxel and reads them into the very “best

interest” standard that Troxel found constitutionally

inadequate. This is not “interpretation,” or at least it is not

a form of “interpretation” that comports with our judicial

role. Rather, it is legislation masquerading as interpreta-

tion in order to salvage an admittedly unconstitutional

statute.

“It is our duty to construe statutes so as to avoid such

constitutional difficulties, if reasonable principles of

interpretation permit it “ (emphasis added). School Comm.

of Greenfield v. Greenfield Educ. Ass’n, 385 Mass. 70, 79,

431 N.E.2d 180 (1982). Doubts as to a statute’s constitu-

tionality “should be avoided if reasonable principles of

interpretation permit doing so” (emphasis added). Staman

v. Assessors of Chatham, 351 Mass. 479, 487, 221 N.E.2d

861 (1966). “A statute, of course, must be construed, if

possible, to avoid serious constitutional doubts. This

principle, however, does not authorize the judiciary to

App. 36

supply qualifying words not fairly to be imported from the

actual language of the statute.” (Citations omitted.) Mile

Rd. Corp. v. Boston, 345 Mass. 379, 383, 187 N.E.2d 826,

appeal dismissed, 373 U.S. 541, 10 L. Ed. 2d 687, 83 S. Ct.

1538 (1963). When confronted with comparable constitu-

tional infirmities in a statute, this court has declined to

read into the defective statute the correct constitutional

standard. For example, in Commonwealth v. Horton, 365

Mass. 164, 166, 167-168, 310 N.E.2d 316 (1974), this court

refused to salvage the constitutionality of the obscenity

statute (G.L. c. 272, § 28A), despite the fact that many

other courts had rescued similar statutes by reading into

them the “basic guidelines” prescribed by Miller v. Cali-

fornia, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973).

Even though Miller itself specified that “authoritative

judicial construction of an obscenity statute may fulfil the

constitutional requirement that the State law specify that

sexual conduct which is prohibited,” Commonwealth uv.

Horton, supra at 167, this court declined to superimpose

the Miller requirements onto the statute because “to do so

would require us to engage in a function which we, per-

haps more than many courts, have been traditionally

reluctant to perform.” Commonwealth v. Horton, supra at

171. See Pielech v. Massasoit Greyhound, Inc., 423 Mass.

534, 538-542, 668 N.E.2d 1298 1996), cert. denied, 520

U.S. 1131, 187 L. Ed. 2d 356, 117 S. Ct. 1280 (1997)

(striking G.L. c. 151B, § 4[1A], because it unconstitution-

ally favored adherents of established religions, rejecting

plaintiffs’ request that statute be interpreted as extending

to persons of all religious beliefs so as to avoid constitu-

tional defect); Dalli v. Board of Educ., 358 Mass. 753, 758-

759, 267 N.E.2d 219 (1971) (striking religious exemption

from vaccination statute, rather than interpreting exemp-

tion to apply to all persons with sincerely held religious

ERE AY Hing UA Rm Chet stay ee

App. 37

beliefs). “It would be an unacceptable statutory construc-

tion to find incorporated in the meaning of a statute,

general in its terms, specific constitutional requirements

not articulated until after enactment of the statute.”

Commonwealth v. Upton, 394 Mass. 363, 369, 476 N.E.2d

548 (1985) (rejecting defendant’s argument that G.L. c.

276, § 2B, incorporated constitutional principles later

articulated in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d

723, 84S. Ct. 1509 [1964]).

The “best interest” of the child standard set forth as

the sole substantive provision of our visitation statute,

enacted long before Troxel, is now “interpreted” to include

each and every one of the requirements later imposed by

Troxel. The irony, of course, is that Troxel itself found that

visitation could not constitutionally be ordered based on a

mere determination of the child’s “best interest,” but

today’s “interpretation” imbues the term “best interest”

with all of the attributes necessary to correct each of the

shortcomings that Troxel identified as inherent in that

precise term. Then, in addition to reading all of the re-

quirements of Troxel into the “best interest” of the child

standard, the court also interprets it to contain the addi-

tional limitation that it refer only to “significant harm” to

the child, as that limitation is also necessary to remedy

the statute’s obvious unconstitutionality. Ante at. The

result is an overhaul of the statute that renders it consti-

tutional, but this process cannot fairly be labeled “inter-

pretation.” |

Other courts, post-Troxel, have been confronted with

visitation statutes similarly predicated on nothing more

than a determination of the child’s “best interest” and

have wisely resisted the temptation to salvage such

Statutes under the guise of “interpretation.” See Linder v.

App. 38

Linder, 348 Ark. 322, 353-356, 72 S.W.3d 841 (2002)

(where visitation statute’s “best interest” standard did not

identify any unfitness or harm that “would warrant state

intrusion,” court declined “to completely rewrite” it be-

cause it “is best left to the [Legislature] to do [so], should it

be so inclined”); DeRose v. DeRose, 249 Mich. App. 388,

395, 643 N.W.2d 259 (2002) (grandparent visitation

statute premised solely on “best interests of the child” held

unconstitutional per Troxel; court declines to “interpret”

statute so as to avoid unconstitutionality, because “such an

effort would require a significant, substantive rewriting of

the statute” and “rewriting of the grandparent visitation

statute is a task best left for the Legislature”). See also

Beagle v. Beagle, 678 So.2d 1271, 1272 (Fla.1996) (visita-

tion statute predicated on “child’s best interest” unconsti-

tutional on its face); Brooks v. Parkerson, 265 Ga. 189, 190,

194, 454 S.E.2d 769 (1995) (visitation predicated on proof

that it is “necessary to the best interests of the child”;

statute held unconstitutional on its face); Wickham v.

Byrne, 199 Ill. 2d 309, 320-321, 263 Ill. Dec. 799, 769

N.E.2d 1 (2002) (same; “best interests and welfare of the

child” standard); Santi v. Santi, 633 N.W.2d 312, 315, 321

(Iowa 2001) (same; “best interests of the child” standard).

Nor can this “interpretation” be justified as a natural

extension of the use of the “best interest” standard that

has “long been used in Massachusetts to decide issues

of custody and visitation and other issues relating to

child welfare.” Ante at. The term “best interest” of the

child has never been interpreted to mean anything re-

motely resembling the “interpretation” that is placed on it

App. 39

today.’ In very differing contexts, the Legislature has

prescribed what it intends by the term “best interest” of

the child. For example, in G.L. c. 210, § 3 (c), the Legisla-

ture set forth what is to be considered in determining “the

best interests of the child” when ruling on a petition for

adoption in the absence of parental consent to that adop-

tion. Where the Department of Social Services is caring for

or providing services to children, the Legislature has

adopted yet another definition of “best interests of the

child.” G.L. c. 119, § 1. For purposes of resolving custody

disputes and support obligations between parents who are

divorcing, the standard of “best interests of the child” is

also used, but no definition has been provided. See G.L. c.

208, § 28 and § 31. See also Yannas v. Frondistou-Yannas,

395 Mass. 704, 710-712, 481 N.E.2d 1153 (1985) (divorced

parent may not remove child from Commonwealth without

consent of other parent or court order “upon cause shown”

under G.L. c. 208, §30; court interprets “upon cause

shown” to require that removal be “in the best interests of

the child”).

These other contexts bear no resemblance to the

situation presented by grandparents’ claims for visitation

under G.L. c. 119, § 39D, and, not surprisingly, the “inter-

pretation” of “best interest” of the child created today is

* Recognizing the novelty of its “interpretation,” the court remands

this case with the suggestion that the parties be given “a reasonable

opportunity to file additional materials,” and expressly acknowledges

that the Probate Court’s standard form visitation complaints “will need

to be revised to reflect the standards we have enunciated.” Ante at &

n.26. The court apparently realizes that today’s interpretation of “best

interest” of the child represents a significant departure from our

traditional articulation of that standard.

App. 40

not linked to any of our prior jurisprudence interpreting

that term. On petitions to dispense with parental consent

to adoption, or in petitions for care and protection of

children, there is a finding of unfitness or incapacity of the

parent prior to any court decision about what is in the

child’s “best interest.” See Petition of the Dep’t of Pub.

Welfare to Dispense with Consent to Adoption, 383 Mass.

573, 589, 421 N.E.2d 28 (1981). In divorce proceedings,

each parent is presumed to have an equal right to custody,

G.L. c. 208, § 31, and the court is only called on to make

determinations as to a child’s “best interest” because the

parties normally charged with making such decisions

cannot themselves agree. See Opinion of the Justices, 427

Mass. 1201, 1204 (1998). Nowhere do we have any prece-

dent or governing standards for determining a child’s “best

interest” where the child’s parents are fit and competent

and there is no dispute between them as to what is in the

child’s “best interest.” Standards employed to make

decisions when the persons who would normally make

those decisions are unfit to do so, or are themselves in

disagreement, provide no guidance for what it takes to

supplant the unanimous decision of perfectly competent

parents. Thus, in crafting an interpretation of the “best

interest” of the child under our grandparent visitation

statute, the court is simply making it up, or, more pre-

cisely, is engrafting onto that sole, general term each and

every requirement, presumption, and limitation necessary

to correct the statute’s obvious constitutional infirmities.

The court today adds other provisions and require-

ments that are nowhere set forth in the statute. In recog-

nition of the fact that “the burden of litigating a domestic

relations proceeding can itself be ‘so disruptive of the

parent-child relationship that the constitutional right of a

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App. 41

custodial parent to make certain basic determinations for

the child’s welfare becomes implicated,’” ante at, quoting

Troxel, supra at 75, quoting id. at 101 (Kennedy, J., dis-

senting), the court invents and inserts a pleading re-

quirement that is contrary to our normal notice pleading.

The court now requires that grandparents submit a

“detailed and verified” complaint for visitation, or an

affidavit accompanying their complaint, and provides that

the absence or inadequacy of that verified complaint or

affidavit will render the complaint subject to dismissal on

the parents’ motion. Ante at. The court then confidently

concludes that this requirement “should minimize the

burden” of defending against “unwarranted” claims for

visitation. Id.

This is not only legislation — the court does not even

pretend that this is “interpretation” — but it is ineffective

legislation at that. The affidavit requirement imposed by

today’s decision will do little (if anything) to relieve par-

ents of the burdens of this kind of litigation. Parents will

still have to hire a lawyer in order to pursue a motion to

dismiss; and, as long as the grandparent can file a com-

plaint or affidavit that alleges any disruption of a prior

relationship with the child (and therefore a basis for

claiming that the child will be “harmed” by the severance

of that relationship), the motion to dismiss will not suc-

ceed in promptly terminating what has proved to be a

protracted form of litigation. See, e.g., Linder v. Linder,

348 Ark. 322, 356, 72 S.W.3d 841 (2002) (visitation litiga-

tion lasted four years); Steward v. Steward, 111 Nev. 295,

297-300, 890 P.2d 777 (1995) (three years elapsed between

filing of petition and order for visitation, followed by

another year of appellate proceedings to get visitation

order overturned); Nolan, Beyond Troxel: The Pragmatic

App. 42

Challenges of Grandparent Visitation Continue, 50 Drake

L.Rev. 267 (2002). Fit, competent parents will still be

haled into court, and required to pay legal fees, to explain

to a judge their reasons for deciding not to let their child

visit with a particular grandparent on particular terms. In

order to defeat the request for visitation, they may have to

“expose what can only be described as the family’s ‘dirty

linen.” Hawk v. Hawk, 855 S.W.2d 573, 577 n.2

(Tenn.1993). See Steward v. Steward, supra at 297-298

(divorced parents’ opposition to petition related grand-

mother’s history of gambling, suicide threats, threats to

kill family members, false accusations of adultery, and

interference with their marriage). The court’s tinkering

with our notice pleading requirements does not serve to

lessen the inordinate burdens of such divisive intra-family

litigation. When the Legislature intends to create a proce-

dure for the prompt dismissal of disfavored litigation, it

knows how to do so. See G.L. c. 231, § 59H (special motion

to dismiss “SLAPP” suits). We should leave it to the

Legislature to craft special methods for disposing of, or

deterring, inappropriate visitation complaints. That is the

Legislature’s job, not ours, and the court’s attempt at its

own legislation will prove woefully inadequate to the task

of reducing the crippling burdens of grandparent visitation

litigation.

In many States, grandparent visitation statutes

expressly list factors that the court is to consider before

ordering visitation.‘ Many visitation statutes contain an

* See, e.g., Ala.Code § 30-3-4.1(d) (LexisNexis Supp.2001); Ariz.Rev.

Stat. Ann. § 25-409(C) (West 2000); Fla. Stat. Ann. § 752.01(2) (West

Supp.2002); Me.Rev.Stat. Ann. tit. 19-A, § 1803(3) (West 1998);

(Continued on following page)

App. 43

express requirement that the party seeking visitation

demonstrate the existence of a prior relationship with the

child.* As noted in today’s opinion, all fifty States have

adopted some form of grandparent visitation statute, and

those statutes “vary considerably.” Ante at n.9. There is a

vast array of options amongst the differing provisions,

both substantive and procedural, that States have en-

acted. It is not up to this court to pick and choose from

among that vast array simply to rescue this statute. Such

choices are the essence of legislation, not judicial

interpretation.

This visitation statute was enacted well before Troxel.

Troxel now tells us that a statute providing for court-

ordered visitation with children can be constitutional, but

makes clear that a statute predicated solely on a “best

interest” standard will not pass muster. We should there-

fore tell the Legislature that, in light of Troxel, a statute

allowing judges to override parents’ decisions concerning

visitation with grandparents cannot be premised merely

on a judicial determination of the child’s “best interest.” If

it wishes to, the Legislature may then enact those precise

requirements, definitions, standards, and procedural

protections that it intends, consistent with constitutional

requirements. There is more than one way to devise a

Nev.Rev.Stat. § 125C.050 (6) (2001); N.J. Stat. Ann. § 9:2-7.1(b) (West

Supp.2002); Tenn.Code Ann. § 36-6-307 (LexisNexis 2001); Vt. Stat.

Ann. tit. 15, § 1013(b) (1989); W. Va.Code § 48-10-502 (Lexis 2001).

* See, e.g., Cal. Fam.Code § 3104(a)(1) (West 1994); Iowa Code Ann.

§ 598.35 (West 2001); Kan. Stat. Ann. § 38-129(a) (2000); Miss.Code

Ann. § 93-16-3(2) (1994); Neb.Rev.Stat. Ann. § 43-1802(2) (Lexis 1999);

N.C. Gen.Stat. § 50-13.2A (Lexis 1999); Or.Rev.Stat. § 109.119 (2001);

Tenn.Code Ann. § 36-6-306 (LexisNexis 2001).

App. 44

visitation statute that would survive strict scrutiny, and it

is up to the Legislature, not this court, to decide which of

those many possible approaches it wishes to take. I would

therefore simply rule, as the Probate Court judge did

below, that this statute is unconstitutional on its face.

3. Equal protection. The grandparent visitation

statute also suffers glaring equal protection defects. It

makes some parents and children subject to complaints for

grandparent visitation, but exempts others, predicated

entirely on the parents’ living arrangements. Because the

statute implicates a fundamental liberty interest, the

statute’s classifications must also be subjected to strict

scrutiny. See Clark v. Jeter, 486 U.S. 456, 461, 100 L. Ed.

2d 465, 108 S. Ct. 1910 (1988); English v. New England

Med. Ctr., Inc., 405 Mass. 423, 428-429, 541 N.E.2d 329

(1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110

S. Ct. 866 (1990). Thus, the statute’s constitutionality is

dependent on “a showing that the difference in treatment

is necessary to the promotion of a compelling State inter-

est.” Paro v. Longwood Hosp., 373 Mass. 645, 649, 369

N.E.2d 985 (1977). The classifications drawn by the

grandparent visitation statute do not survive that level of

scrutiny.

A visitation order may be sought whenever the child’s

parents are “divorced, married but living apart, under a

temporary order or judgment of separate support, or if

either or both parents are deceased,” or, if the child was

born out of wedlock, whenever “the parents do not reside

App. 45

together.” G.L. c. 119, § 39D. Thus, if both of the child’s

parents do not reside in the same household with the

child, grandparents may bring an action for visitation.

However, whenever the child’s parents are residing to-

gether, there can be no action for grandparent visitation.

Although ostensibly described as separate categories, the

classes of parents subject to this statute all share the

singular defining characteristic that they do not reside

with the child’s other parent. whereas all parents who

reside together are completeiy exempt from visitation

claims by grandparents.’

This distinction between parents whose fundamental

rights are to be infringed cannot withstand strict scrutiny.

Where the compelling State interest at stake is the pre-

vention of significant harm to children, the classifications

must be narrowly tailored to serve that interest, i.e., to

identify children who are more likely to be harmed by, or

who will suffer greater harm from, the denial of visitation

with grandparents. There may be some defining character-

istics that would operate, in a narrowly tailored way, to

identify such children, but the mere fact that the child’s

biological parents do not live in the same household does

* Paternal grandparents of children born out of wedlock may only

seek visitation if paternity has been adjudicated or acknowledged. G.L.

c. 119, § 39D.

" The description of separate categories, despite their unifying

characteristic of parental living arrangements, is the product of the

gradual expansion of the reach of the statute, with each successive

amendment adding a new category of parents made subject to visitation

complaints. See St.1972, c. 631 (authorizing parent of deceased parent

to petition for visitation with grandchild); St.1982, c. 514 (extending

statute to divorced parents); St.1991, c. 292 (extending statute to

married parents living apart and to unmarried parents living apart).

App. 46

not identify a category of at-risk children with anything

approaching the requisite degree of precision. The mother

correctly contends that the classifications in the statute

are both overinclusive, in that they sweep into the statute

large numbers of children at no greater risk of harm from

the denial of visitation, and underinclusive, in that they

exclude many common domestic situations that do expose

children to an increased risk of harm from the denial of

visitation.

Invoking principles governing representative standing

(ante at, quoting Slama v. Attarney Gen., 384 Mass. 620,

624, 428 N.E.2d 134 [1981]), and the requirement that

only someone injured by a statute may challenge its

constitutionality (ante at, quoting Massachusetts Comm’n

Against Discrimination v. Colangelo, 344 Mass. 387, 390,

182 N.E.2d 595 [1962]), the court concludes that it can

essentially ignore the mother’s equal protection argu-

ments, and addresses only the claim of overinclusiveness

at issue in the precise category into which these parents

are assigned (i.e., never married and not living together).

There is no question that these parents are presently

being injured by the visitation statute — they have been

summoned into court, required to explain their reasons for

denying visitation,” and will continue to incur ongoing

expense and uncertainty pending the final outcome of a

* As predicted in Hawk v. Hawk, 855 S.W.2d 573, 577 n.2

(Tenn.1993), defense of the case has forced the parents to “expose .

the family’s ‘dirty linen.’” The genesis of the parents’ decision to

discontinue visitation between their son and his maternal grandfather

was the grandfather’s own acrimonious divorce from the child's

grandmother, a dispute in which the child’s mother has sided with the

grandmother.

App. 47

very painful form of litigation. The only reason that they

are required to suffer that injury is that they are not

presently living together. The grandfather’s petition here

could be defeated, rendered subject to immediate dis-

missal, if the father of this child moved in with the mother

tomorrow. It is the parents’ decision to live apart, not any

other characteristic pertaining to them, to their son, or to

the petitioning grandfather, that gives this grandfather

standing to seek visitation. Surely the parents have

standing to challenge whether that single characteristic,

that defines all the parents who are subject to the statute’s

reach, violates their right to equal protection.

Under the court’s approach, however, no one could

ever bring an equal protection challenge based on the

underinclusiveness of a statute burdening fundamental

rights, even though underinclusiveness would be one way

in which a statute may fail to be narrowly tailored. Per-

sons who have escaped the burdens of such a statute are

not going to bring suit asking that those burdens be placed

on them, and, according to the court today, those who have

been unfairly singled out for such infringement of their

rights may not complain that the statute unfairly fails to

reach others who are at least as deserving of the statute’s

burdens. And, under the court’s approach, claims of

overinclusiveness will be looked at in the isolation of the

plaintiff’s own category under a statute, ignoring the

actual “tailoring” of the statute as a whole and pretending

that the statute was addressed at only that single cate-

gory. Statutes that would fail the test of “narrowly tailored

to serve a compelling State interest” will] apparently

be upheld as long as there is anyone who could lawfully

be burdened by a more narrowly tailored statute.

By definition, a statute that is either overinclusive or

} ,ircaarasaaaaaa saat,

App. 48

underinclusive still has some legitimate sweep and could

lawfully be applied to at least some persons. Telling

litigants that statutes burdening fundamental rights, no

matter how lacking in narrow tailoring, will be upheld on

a facial challenge whenever the burdens they impose could

lawfully be imposed on at least someone is an approach

that dooms facial challenges on equal protection grounds

to failure. Rather than endorse the court’s cramped view of

equal protection guarantees, leaving a multitude of parent

defendants only the costly recourse of repeated “as-

applied” challenges to a statute that, by its terms, poses

significant equal protection problems, I would consider

whether this statute, as a whole, qualifies as narrowly

tailored to serve the identified compelling State interest

that it ostensibly serves.’ For the following reasons, the

statute fails that test.

The first category created by the statute is parents

who are divorced.” The statute pays no heed to the cir-

cumstance that both divorced parents may in fact agree

that visitation with a particular grandparent is inappro-

priate. It also ignores living arrangements whereby a

divorced parent with custody lives with or marries another

adult, and thus raises the child in a household that fully

resembles a two-parent household. Indeed, the child’s

household may consist of one actual parent and one de

* At our request, the parties and various amici submitted addi-

tional briefing on the full panoply of equal protection issues in the

visitation statute. The decision to ignore most of the briefing we

specifically requested is puzzling.

” Similarly, the statute covers parents who are living apart under

an order or judgment of separate support, an arrangement that is a

common prelude to divorce.

App. 49

facto parent. Even if the child’s stepparent in such a

household adopts the child, such that the child is residing

with both lawful “parents,” the statute still applies. ™

Thus, notwithstanding the stability of the household and

child-rearing arrangements of many divorced parents, and

notwithstanding their unanimous agreement on the issue

of grandparent visitation, the mere fact of their prior

divorce is what makes their parental decisions perpetually

subject to judicial review. See Belair v. Drew, 776 So. 2d

1105, 1106 (Fla.Dist.Ct.App.2001) (grandparent visitation

statute governing divorced parents unconstitutional on its

face; “a divorced natural parent should have no lesser

privacy rights than a married or widowed natural par-

ent”). See also Lulay v. Lulay, 193 Ill. 2d 455, 478-479, 250

Ill. Dec. 758, 739 N.E.2d 521 (2000) (State does not have

compelling interest sufficient to justify visitation order

merely because grandchildren’s lives “have been disrupted

because of their parents’ divorce”).

Next, the statute applies to married parents who are,

for whatever reason, not living together. Why that circum-

stance should affect their parental rights is incomprehen-

sible. A parent may be temporarily absent from the home

for any one of a number of reasons having nothing to do

with unfitness or lack of family stability. The absent

parent may be living elsewhere to pursue further educa-

tion, or because of a job transfer, or to perform military

service. A parent who is accepted at an institution of

higher learning that is at some distance from the family

" Grandparent visitation petitions are cut off by adoption only

where the child “has been adopted by a person other than a stepparent

of such child” (emphasis added). G.L. c. 119, § 39D.

App. 50

home may well decide not to uproot the whole family for

what is expected to be a temporary period. A parent whose

job is transferred to a different part of the country may

postpone the relocation of the rest of the family so that the

children can complete their present grade at school. Or, as

recent events illustrate, one parent can suddenly be

summoned to active military duty in a foreign country.

That married parents sometimes live apart is no indicator

of family disharmony, instability, or parental shortcoming.

I can identify no State interest whatsoever, let alone a

compelling one, that is served by subjecting married

parents to visitation complaints merely because they are

presently living apart, while exempting all other married

parents from the same burden on their fundamental

parental rights.

The next classification imposed by the statute per-

tains to the death of a child’s parent. This is hardly a sign

of unfitness or a “red flag” warranting judicial interven-

tion. On what basis does the State assume that a surviv-

ing parent needs to have his or her decisions reviewed by a

judge? And, as with divorced parents, the surviving

parent's living with another partner, or remarriage, or

even the stepparent’s adoption of the child, leaves the

surviving parent permanently subject to the statute,

notwithstanding the fact that that surviving parent has

recreated a classic, nuclear family in which to raise the

child. See Von Eiff v. Azicri, 720 So.2d 510, 515-516

(Fla.1998) (“We find nothing in the unfortunate circum-

stance of one biological parent’s death that would affect

the surviving parent’s right of privacy in a parenting

decision concerning the child’s contact with her maternal

grandparents,” noting that surviving father had remarried

and new wife had adopted child); Wickham v. Byrne, 199

App. 51

Ill. 2d 309, 317, 263 Ill. Dec. 799, 769 N.E.2d 1 (2002)

(where grandparent argued that visitation statute allowed

judge to “step[ ] into the shoes of the deceased parent to

protect and maintain the children’s family heritage,” court

“rejected any argument that single parents are entitled to

less constitutional liberty in decisions concerning the care,

custody, and control of their children”); Neal v. Nesvold, 14

P.3d 547, 550 (Okla.2000) (“[child’s] father’s death does not

affect [mother’s] fitness as a mother nor alter her constitu-

tionally protected rights to rear her child without state

interference”).

The next category is parents of children born out of

wedlock where the parents are not living together. Again,

this category fails to acknowledge that such parents may,

despite their separate living arrangements, be raising the

child in a perfectly stable manner. Indeed, unwed parents

may temporarily live apart for all of the same reasons that

married parents sometimes live apart, e.g., to complete

one parent’s education, to comply with a job transfer, or to

perform military service. And, as with divorced parents,

the category of unwed parents not presently living to-

gether also fails to recognize that the custodial parent may

be living with (or married to) someone who has become the

child’s de facto parent or who has even adopted the child.

Notwithstanding prevalent stereotypes of unwed mothers,

many children who were born out of wedlock ultimately

live in perfectly stable homes. Premising judicial involve-

ment on the mere fact that the custodial parent of such a

child does not presently live with the child’s other biologi-

cal parent is utterly unwarranted. See Saul v. Brunetti,

753 So.2d 26, 28 (Fla.2000) (fact that child’s parents “were

never married should not change this Court’s analysis of

the constitutionality of this [visitation] statute”).

App. 52

Essentially all parents raising children in nontradi-

tional families are pulled into this statutory scheme. Many

gay and lesbian couples raising children will be subject to

this form of judicial interference, as the gay or lesbian

parent of the child is no longer residing with the child’s

other biological parent. Divorced, single, or widowed

parents who move in with other family members, and

raise their children in an extended family, are subject to

complaints under the statute, as are all parents who later

live with or even marry someone other than a biological

parent of the child. And, by definition, any parent who is

raising his or her child single-handedly is subject to such

proceedings. Rather than recognize the wealth of diversity

in today’s American family, this statute casts a slur on the

parenting abilities of anyone whose family living ar-

rangements deviate from the traditional, nuclear family

consisting of father, mother, and their biological children.”

Looking solely at the category of parents who were

never married to each other and who are not presently

living together, the court resorts to vague generalizations

“ The suggestion that we might circumvent this problem by

resorting to a novel definition of “parents” (ante at n.22), defies the

clear import of the statute. Given that not even a stepparent adoption

suffices to make the biological parent and the adoptive parent the

child’s “parents” for purposes of G.L. c. 119, § 39D, and given the

statute’s requirement of an adjudication of “paternity” for a child born

out of wedlock, it is apparent that grandparent visitation rights are

predicated on the living arrangements of the child’s biological parents.

The statute leaves no room for creative definitions of the term “parent”

that would exempt stable but untraditional families from this scheme.

Thus, with specific applicability to gay and lesbian couples, if they are

raising a child that is the biological child of one partner, the fact that

the other partner has become a de facto parent, or even an adoptive

parent, will not serve to exempt them from the operation of the statute.

App. 53

verging on pure stereotypes of families that are not “in-

tact” to justify subjecting such parents, but not others, to

the intrusive burdens of the visitation statute. Ante at.

The court posits that children of unwed parents living

apart “may be at heightened risk,” that they “may be

especially vulnerable,” and that for “households in which

children are raised by single parents, grandparents may

play an increasingly important role.” Ante at 663. In

conclusory fashion, the court states that these distinctions

are “drawn from social experience.” Ante at.

The first mistaken assumption in the court’s analysis

is the assumption that the category of parents who were

never married and are now living apart describes a cate-

gory of “households in which children are raised by single

parents.” Ante at. It does not. The custodial parent can be

living with or married to another adult, and that other

adult may well have become a de facto parent or even the

child’s legal parent by way of adoption, yet the statute still

applies. These are not single-parent homes, nor are they

homes that place a child at greater risk of harm from

denial of grandparents’ visitation. Are we to assume that

children living with gay or lesbian couples are “especially

vulnerable to real harm,” ante at, merely because they are

not living with both of their biological parents? Are we to

assume that a child adopted by a stepparent is similarly

afflicted with some special vulnerability because only one

of the parents in the household is a natural biological

parent? Assuming (without deciding) that children being

raised by only a single adult comprise a category of chil-

dren at greater risk because they will not “be able to draw

on the resources of two parents,” ante at, the category of

unwed parents as defined by the statute is hopelessly

overinclusive. The mere fact that one parent does not

App. 54

presently live with the child’s other biological parent is

simply not a narrowly tailored method of identifying those

parents who are raising children single-handedly. As such,

any justification for the categories identified by the visita-

tion statute cannot be premised on any assumptions about

the particular needs of children living in single-parent

households. If that is the category intended, it is a mere

subcategory of the classification described in the statute,

and that subcategory could, with ease, be defined with

narrowly tailored precision.

Nor can this classification be justified on the theory

that children of unwed parents living apart will have

already suffered some traumatizing disruption of their

family structure or family relationships, such that they

have a greater need for their grandparen:s. There is no

“disruption” of the child’s family at all if the parents never

lived together, or did so only at a time when the child was

too young to remember the presence of the other parent in

the household.” Nor can one assume that -here is discord

or disharmony stemming from the fact that the parents do

not live together. Indeed, in this case, bcth parents are

closely involved in the child’s upbringing and have agreed

all along that visitation with this grandfather is inappro-

priate for the child. Disruption in a chid’s life is not

inherent in today’s diverse family structures, particularly

where those family structures have bean deliberately

established from the child’s earliest years as the norm in

which the child is being raised. Indeed, the event that

would disrupt such a child’s life would be the sudden

** In the present case, the father moved out of the household when

the child was eighteen months old.

App. 55

addition to the household of a parent the child never lived

with or knew, yet that is the precise event that would

terminate the application of the visitation statute.

Even where a parent’s departure has inflicted a sense

of “loss, inadequacy, and insecurity” on a child, ante at,

one cannot assume that the effects of that disruption

persist throughout the child’s minority. The statute con-

tains no time limitation on filing visitation complaints.

Thus, for example, a child whose parent left the household

when the child was only three years old may well suffer

significant emotional trauma at the time, but that trauma

is not alleviated in any way by a forced order of grandpar-

ent visitation when the child is a teenager. A narrowly

tailored statute could perhaps allow for visitation com-

plaints in the relatively recent aftermath of a genuine

disruption in the child’s household, as that would perhaps

define a category of children with greater need for continu-

ity in other family relationships, but a statute that con-

tains no time limit, no temporal relation between the

disruption and the visitation complaint, has not narrowly

defined a category of children with such needs.

The court does correctly point out that parents who

are trying to raise a child single-handedly more often

make a “deliberate choice” to foster a “bond” between the

child and a grandparent, such that State intervention

“may be necessary to secure the child’s well-being from

traumatic separation from the grandparent.” Ante at.

Again, however, the classification at issue not only fails as

a narrowly tailored definition of single-parent households

where such reliance on a grandparent may have devel-

oped, but the statute does not even require as a predicate

that there be any prior relationship with the grandparent,

App. 56

let alone one that has become “crucial to the child’s physi-

cal or emotional security.” Ante at. A parent may, from the

child’s birth, have prohibited any contact with the grand-

parent, yet the completely estranged grandparent may,

based solely on the parents’ living arrangements, bring a

claim for visitation.“ If the objective is to reach a category

of children who have developed a “crucial” relationship

with a grandparent, a category of children of unwed

parents living apart is not a narrowly tailored definition of

children who have such relationships, and the statute

could easily articulate the category that is now proffered

as the justification for the overbroad category into which

these parents fall.

What is also puzzling about this justification is its

somewhat circular logic. If single parents have voluntarily

fostered a bond between child and grandparent, why

would they then be more likely than other parents to harm

the child by severing that bond? To the contrary, single

parents have a greater, not a lesser, incentive to maintain

the relationships that they have deliberately led the child

to rely on. If a parent is raising a child single-handedly

without any other adult in the household, the many

pragmatic burdens of caring for a child in such circum-

stances would, if anything, drive a parent to closer reli-

ance on other family members, including grandparents, to

help ease those burdens. These are the very parents who

“ The court’s “interpretation” of the “best interest” standard does

not require that the grandparent prove the existence of a prior relation-

ship with the child. Ante at. Thus, the predicate for the classification

that is now proffered appears in neither the statute’s standing provi-

sions nor in the court’s “interpretation” of its substantive provisions.

App. 57

are the least apt, and the least able, to turn away offers of

assistance in caring for the child, who have the greatest

incentive to keep the child’s grandparents closely involved

with the child, and who are therefore the least likely to

reject such assistance for arbitrary or unsound reasons.

Put bluntly, grandparents provide “free babysitting,” a

precious commodity to any single parent, and a commodity

they are unlikely to refuse absent some compelling reason.

It is not surprising that in such households, as a purely

voluntary matter, “grandparents may play an increasingly

important role in child rearing,” ante at, citing Troxel,

supra at 63-64, but there is nothing to indicate that,

having done so, single parents are more likely to make an

irrational about-face and banish the grandparent who has

provided that assistance to date.

Finally, the court’s justification for this distinction

relies on a great deal of what “may” be the case — grand-

parents “may” play an important role for such children,

such children “may be especially vulnerable” or “may be at

heightened risk.” Ante at. The rational basis test can

resort to mere possibilities as justification for classifica-

tions, and I accept the premise that the classifications in

this statute, as overbroad as they are, could withstand

review under a rational basis analysis. Loose approxima-

tions, based on marginally rational assumptions, suffice

for that highly deferential test. See Marshfield Family

Skateland, Inc. v. Marshfield, 389 Mass. 436, 446, 450

N.E.2d 605, appeal dismissed, 464 U.S. 987, 78 L. Ed. 2d

675, 104 S. Ct. 475 (1983), quoting Commonwealth v.

Henry’s Drywall Co., 366 Mass. 539, 541, 320 N.E.2d 911

(1974) (classification survives rational basis test “if any

state of facts reasonably may be conceived to justify it”).

However, the requirement that a statute be narrowly

App. 58

tailored to serve a compelling State interest requires more

than a mere possibility, more than just rough approxima-

tions and tenuous assumptions, to justify burdening some

parents’ fundamental rights while exempting other par-

ents from those burdens. The distinctions drawn must be

“necessary” to promote the identified compelling interest,

not just rationally related to it. Paro v. Longwood Hosp.,

373 Mass. 645, 649, 369 N.E.2d 985 (1977). Here, the

approximations, possibilities, and assumptions invoked by

the court do not suffice for purposes of the strict scrutiny

to which this statute must be subjected.

Ultimately, the court justifies turning a blind eye to

the overbreadth of the statute on the theory that, because

the court has required a showing of harm, “the State will

not intrude into a nonintact family in the absence of a

showing of significant harm.” Ante at. The “significant

harm” requirement is necessary to cure the statute's

substantive due process defects, as the State may not

impinge on anyone’s fundamental rights other than to

promote a compelling State interest. Having satisfied

substantive due process, however, there remains the

independent equal protection requirement that, if a

statute affecting fundamental rights applies only to some

persons, the classification of persons subject to the statute

must also be narrowly tailored to serve that compelling

State interest. This requirement is particularly important

where, as here, the burdens of such litigation are substan-

tial, even for those parents who ultimately prevail. The

substantive provisions necessary to comport with due

App. 59

process do not make equal protection superfluous.” The

classifications, not just the substantive provisions, must

themselves be narrowly tailored to serve a compelling

State interest.

If the visitation statute impermissibly extended to

only a small group of rare cases outside its legitimate

sweep, I would endorse the court’s preference for letting

those rare cases be resolved by “as-applied” challenges,

rather than by declaring the statute’s classifications

unconstitutional on their face. The overinclusiveness here,

however, is substantial, extending the statute to all

parents who, for whatever reason, do not presently live

together.” I see no reason why such parents, or why the

Probate and Family Court, should have to address this

extreme overbreadth only by way of a barrage of individ-

ual challenges to the statute as applied.

Moreover, “as-applied” challenges do nothing to

remedy the statute’s underinclusiveness, a defect that

today’s opinion declines to address. There are surely many

children living with both of their parents who have an

* For example, a visitation statute that applied only to gay and

lesbian parents could not pass equal protection strict scrutiny merely

by providing that visitation could only be ordered to prevent significant

harm to the child.

“ The “plethora of hypothetical situations” articulated here are not

listed for purposes of “invalidating the statute on any ground,” ante at,

but are provided as mere illustration of the fact that the overbreadth

here is indeed substantial. It does not require much in the way of

creativity to identify many, common parenting arrangements that will,

despite the fact

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