Petition for Writ of Certiorari — Reinhardt v. Reinhardt

’ Supreme Court, U.S.

FILED

98151 7 MAR1819

weit

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

JAN MARIE REINHARDT, et al. --PETITIONERS

VS.

PEGGY MISTICH REINHARDT, et al. --RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT STATE OF LOUISIANA

PETITION FOR WRIT OF CERTIORARI

Leo J. Palazzo, LA #22130

Michael D. Breinin, LA #24315

PALAZZO LAW FIRM

600 Loyola Avenue, Suite 300

New Orleans, LA 70113-3122

Telephone: (504) 586-1442

cu (F

The question presented is whether Louisiana Civil Code

Article 136, which affords extended family visitation under

extraordinary circumstances and when in the best interest of the

child, is an unconstitutional infringement of the fundamental

right of parents to make parental decisions.

LIST OF PARTIES

All parties do not appear in the caption of the case on

the cover page. A list of all parties to the proceeding in the

court whose judgment is the subject of this petition is as

follows:

JAN MARIE REINHARDT, petitioner

CHAD REINHARDT, petitioner

CHELSEA REINHARDT, petitioner

CHASE REINHARDT, petitioner

PEGGY MISTICH REINHARDT, respondent :

TYRELL WILEY REINHARDT, respondent

JAN GUIDRY REINHARDT, respondent

THE STATE OF LOUISIANA, ATTORNEY

GENERAL RICHARD IEYOUB, respondent

aa.

I EE NS i a atc pawesdeebie x

eR ee oe ee Pe xi

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............0c0ce- xii

STATEMENT OF THE CASE ..nccccccccccccccee 1

+ PETITION ...... 3

Cee ee a echo wae 27

INDEX TO APPENDICES

APPENDIX A:

The opinion of the Louisiana Supreme Court appears at

Appendix A to the petition and is published at 1998 WL

960224 (La.)

APPENDIX B:

The opinion of the Louisiana First Circuit Court of

Appeals appears at Appendix B to the petition and is published

at 720 So.2d 78.

-iii-

TABLE OF AUTHORITIES CITED

CASES

Aptheker v. Secretary of State,

378 U.S. 500, 508, 84 S.Ct. 1659,

1666. 32 Eee ee ee ok ise Vise eek es -10-

Banks v. Department of Public

Safety and Corrections, 598 So.2d

SEO RA AE el ND oe a Lk eee eS hee -15-

Blow v. Lottman, 75 S.D.

S27 AS So ae a, 6 kee yda Kos hae -18-

Brooks v. Parkerson, 454 S.E.2d

FR EP EOE 05 a eae a ROC -18-

Cantwell v. Connecticut, 310 U.S.

296, 307-308, 60 S.Ct. 900, 904-905,

RO EF Se TE oc Shc erik ase nes Wasa ees -10-

Clack vues, GE? BOE OOF occ icc eee b eee wes -17-

Creed v. Creed,; 647 So.2d

WM eA eo........ oe 4.

Duchesne v. Sugarman,

566 F.2d 817, 825 "Sg aD 2 gb BO Se ere palit -19-

Eisenstadt v. Baird, 405 U.S.,

at 460, 463-464, 92 S.Ct. at 1042,

1043-1044 (White, J., concurring in result) ......... -10-

Ginsberg v. New York,

Se Bae a Oe CLE LEE. Ce PRA ee es -]-

Griswold v. Connecticut, 381 U.S.,

65S. So oa a 20s us cee be eee. & -10-

Hawk v. Hawk,

$55 S.W. 24.573 (Tenn. 1993) 2... 06045. -17-, -21-, -22-

Herbst vy, Saver, 971 P.2d 395 (1998) ............. -22-

Hokies vy Louisions State Raci

Com’n, 580 So.2d 469 (App.4 Cir.1991),

MN GING: Te ae tS -15-

SIA SO LR SO een ak is ee a Rebke Kwede -14-

In Interest of CLS,; 649 So.2d 532

(anes ee) ae”

In Re Adoption of B.G:S.,

SORE OR ee Od AL OR a OK 6 ow ewe ee -15- z

In Re Custody of Landry,

662 So.2d 169 (La.App.1 Cir.1995)............00. “12.

In Re Custody of Sara Skyanne Smith,

Sree Fe okt CS oo ea a cee hk e hacen ees -20-

In the Interest of Howard, 382 So.2d 194........... -16-

pene D PSictel Diewiions

452 U.S. 18, 27, 101 S.Ct. 2153, 2160,

CITED. Sic hie sb cc kkc oe caer euds -15-

Lingo v. Kelsay,; 651 So.2d 499

CT TED. 8G. vi vise gdaeeensoneee che -12-

Love v. Love, 536 So.2d 1278

NS EEE oe ork a panies taken veces eens -13-

Martin v. Garza, 217 La. 532, 46 So.2d 760;

State ex rel. Martin v. Talbot,

Sie Ge ee re EE ich Ss ves ee Sea ks ok -16-

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ........ =) &

Meyer v. Nebraska, 262 U.S. 390,

eG Gre Or tat. FORZCISZS) nc cscs vedere -14-

Ra OF.” ak fg | GERRI Boren a Anne a ar eras rete ara -17-

Olmstead v. United States, 277 U.S. 438,

478, 48 S.Ct. 564, 572, 72 L.Ed.

944 (1928) (Brandeis, J., dissenting) .............. -12-

Paul v. Peniston, 235 La. 579,

Se eC RD bs ke a oe he's Na Ra eas -16-

Pierce v. Society of Sisters, 268 U.S.

55 OS A, OF ks OF bie LOTTO AS eo) oc eiti es -13-

-vi-

Bien

Prince v. Massachusetts, 321 U.S. 158,

RE ie ol ba wena Fa On,

-13-

Reinhardt v. Reinhardt, 720 So.2d 78

LM DED As bce Wada eek bed aanda -13-, -24-

Reinhardt y, Reinhardt, supra ............ccecees -13-

Reno v. Flores, 507 U.S. 292,

ee, EE es BP OT CAUUS) av kos coe dis céuaes -9-

Ge hr, CE Fe ac ck ctw Sceescens -]-

Roe v. Wade, 410 U.S. 113,

154, 93 S.Ct. 705, 727 (1973) citing

K Union Free School District.

395 U.S. 621, 627, 89 S.Ct. 1886,

SB EF bd eS CES vc cee icac cee -9-, -13-, -17-

Santosky v. Kramer, 455 U.S. 745,

458-59, 102 S.Ct. 1388, 1397,

FE ED ook soe Se es ce ben are eeRS -15-

Santosky v. Kramer,

ee TLE! en ae aoe de chin deneed ube -7]-

ED ia 5 5s he so eve dass coanwebs -8-

Shapiro v. Thompson, 394 U.S. 618,

634, 89 S.Ct. 1322, 1331,

De RE oo ok pec oes Oe aheakenoeees -9-

Sherbert v. Verner, 374 U.S. 398,

406, 83 S.Ct. 1790, 1795,

ID EsE Ae POSTADO) co Se oa cE Pee Cees aes

SOS STIS, SO Cee CIP TRD 6 oi ko cheek kee -7-,

State In Interest of Sylvester,

525 So.2d 604 (La.App.3.Cir.1988)............-.-

State in the Interest of D.D.,

650 So.2d 447. (La.App.3 Cir. 1996);

650 So.2d 447, 449, citing Stanley v. Illinois,

405 U.S. 645, 92 S.Ct. 1208,

St EA TANSIOIRS oe ee a

State v. Hernandez,

OU ae Bee CE co co ee Cees ko

State v. Matthews,

654 So.2d 868 (La.App.4Cir.1995) ...............

State v. Moses, App. 4 Cir.

1995, 94-0489 (La. App. 4 Cir. 5/16/95),

OO ee oo i a ee eas eS

-Vill-

2,

as

-14-

-14-

-15-

State v. Thomas, 638 So.2d 440

(La.App.5 Cir.1994), writ denied,

DOS ae FEO FO ss 00 es Be SS -15-

State v. Vanderlinder,,575 So.2d 521

(App. 5 Cir. 1991), writ denied,

nik. A” 3p. 2 gf ASS oils Sail G5 El Tae Aaa ag A ON -15-

Von Riff v. Azicri.

Te RE TEE 6 0s oak Oe be ke ob eee eS -21-

MO CI e A ERAT) ok choke ke eb icnc -8-, -10-

Woods v. Bard, 290 So.2d 675 (La. 1991) ......... -16-

STATUTES AND RULES

WD Chee SI RO OTN) oS cece kes haben -22-

Pee ease TE ok 5 OW oe ek ak Oe eh -xi-

Fourteenth Amendment,

United States Constitution ................... -Xil-, -7-

Fourth Amendment, United States Constitution ...... -xii-

Georgia statute OCGA §19-7-3 .............. -18-, -20-

Re I ee el as a eee ke -25-

Louisiana Civil Code Article 136 .................. -i-

-ix-

Louisiana Civil Code Article 136(B) ....... -xil-, -1-, -8-

Louisiana Constitution of 1974,

AS F RO 2 i 6k gh Sew ee eee -xli-, -1-, -11-

Ninth Amendment, United States Constitution ...... -xil-

REA SWRA) kaw bcb bee yds wie ee -20-

OTHER

Devlin, Privacy and Abortion Rights Under the

ie TRANS YW

ee : 7

5) Lat Sev: GES CISL oa en ek Cash -14-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment below.

OPINIONS BELOW

The opinion of the Louisiana Supreme Court appears at

Appendix A to the petition and is published at 1998 WL

960224 (La.)

The opinion of the Louisiana First Circuit Court of

Appeals appears at Appendix B to the petition and is published

at 720 So.2d 78.

-xi-

JURISDICTION

The date on which the Louisiana Supreme Court

decided this case was December 18, 1998. A copy of that

decision appears at Appendix A.

The Jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

-Xll-

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourteenth Amendment,

United States Constitution;

Ninth Amendment,

United States Constitution;

Fourth Amendment,

United States Constitution;

Louisiana Civil Code Article 136 (B);

Louisiana Constitution of 1974,

Article 1 Section 5.

-xili-

STATEMENT OF THE CASE

Before this Honorable Court is the issue of the

constitutionality of Louisiana Civil Code Article 136 (B).

Petitioner, Jan Marie Manno, through undersigned counsel

respectfully represents that:

1) The right to parent is a fundamental right

and any infringement upon that right is

subject to strict scrutiny;

2) Louisiana Civil Code Article 136 (B) violates

the United States Constitution;

3) Louisiana Civil Code Article 136 (B) violates

Article 1 Section 5 of the Louisiana

Constitution.

4) Conflict exists in state jurisdictions as to the

constitutionality of extended family

visitation statutes that do not require a

showing of harm to the child.

On May 15, 1997, the Honorable John L. Weimer of

the 17" Judicial District Court, Parish of Lafourche, State of

Louisiana, denied Petitioner’s motion pleading the

unconstitutionality of LA Civil Code Article 136 (B), and on

September 25", 1997, the Louisiana First Circuit Court of

Appeals in a two to one (2-1) decision affirmed the Trial

Court's ruling. On December 18, 1998 the Louisiana Supreme

Court affirmed the decision of the First Circuit Court of

Appeal. The rulings of these Louisiana courts are contrary to

both the United States Constitution and the Louisiana

ie &

Constitution. As an infringement of a constitutionally

guaranteed fundamental right, the right to make parental

decisions, Louisiana Civil Code Article 136 (B) is subject to

strict scrutiny. As such, the State must demonstrate a

compelling state interest and show that the statute is narrowly

tailored to meet such an interest. Petitioner avers that Civil

Code Article 136 (B) fails this test as there is no requirement

that “substantial harm” to the child be shown before

grandparent and extended family visitation is allowed.

Louisiana Civil Code Article 136 (B) is completely

void of the requirement of showing “substantial harm,” and as

written violates the fundamental right to make parental

decisions without unjustified government interference. Such

decisions include child rearing, education, family relationships

and associations. This statute must be stricken down and

declared unconstitutional by this Honorable Court.

REASONS FOR GRANTING THE PETITION

The Honorable Justices of the Supreme Court must

grant this writ application in order to review and ultimately

determine the constitutionality of Louisiana Civil Code Article

136 (B), which purpose serves to correct material injustices and

significantly affects the public interest by upholding the

fundamental rights of a parent to raise their child without the

interference of the state prior to a showing of "substantial

harm" to the child's welfare.

At this time there is division in the lower courts as to

the constitutionality of grandparent visitation statutes. The

Supreme Courts of Florida, Tennessee, Georgia, Oklahoma and

Washington have held statutes of similar construction to

Louisiana’s Civil Code Article 136 (B) unconstitutional absent

a requirement of substantial harm to the child. The ruling of the

Louisiana Supreme Court stands in direct conflict to the rulings

of other jurisdictions.

FACTUAL BACKGROUND

On October 25, 1986, Jan Marie Manno was married to

Darwin James Reinhardt (hereinafter referred to as

“Reinhardt”). During the marriage the parties had three

children, namely Chad, Chase and Chelsea. The children are

still minors at present. Prior to the marriage, during the

marriage and after the marriage, Reinhardt was physically,

mentally and emotionally abusive to Petitioner and her

children. After almost 10 years of abuse, Petitioner filed for

divorce and sought custody of her three minor children.

Under the terms of the Judgment of Divorce, Petitioner

was granted the sole custody of the three children, with

Reinhardt restricted to supervised visitation. The restrictions

placed on Reinhardt were based on his abusive behavior,

including prior attempts to kill Petitioner and then himself. On

March 16, 1995, even after protective and restraining orders

had been obtained against him, Reinhardt attacked Petitioner in

front of her three children. Reinhardt beat, punched and kicked

Petitioner. Reinhardt was charged and plead guilty to simple

battery and later sentenced to six (6) months incarceration.

On Monday, April 24, 1995, Reinhardt, in violation of

his restraining order and armed with a handgun, broke into the

residence of Petitioner, at which time he attempted to rape,

kidnap and kill Petitioner.

Reinhardt plead guilty to aggravated burglary charges

on February 15, 1996, and was later sentenced to 25 years in

prison. Reinhardt is presently awaiting trial on attempted

second degree murder charges.

During these criminal proceedings Reinhardt’s mother,

Peggy Mistich Reinhardt and his brother, Tyrell Wiley

Reinhardt filed on December 13, 1996, a petition for visitation

pursuant to LA Civil Code Article 136(B). Noteworthy was

the fact that two (2) years prior to the physical separation of

Petitioner and Reinhardt, Reinhardt had cut-off all relationships

between his side of the family, specifically his mother and his

brother, Tyrell Reinhardt.

Petitioner attempted to mitigate the issue of visitation

by tentatively agreeing to a limited, restricted, supervised

visitation schedule between the Reinhardts and her three minor

ie

children. During these limited supervised visitations, the

Reinhardts continued to support their son’s brutal actions and

went so far as to blame Petitioner and disparage her in front of

her children. These vicious unsupported character attacks

escalated into statements by the Reinhardts, in front of the three

children, describing their mother as a “whore” and condoning

their son’s actions.

On June 6, 1996, Petitioner on the advise and

recommendation of the children’s therapist, Dr. Marsha

Redden, filed a motion for termination of visitation between

her three children and the Reinhardts.

The Trial Court prior to making a ruling on future

visitation ordered all parties to be evaluated by a mental health

expert. After extensive and expensive evaluation by the court

appointed expert, Dr. Steven York, Dr. York recommended

further restrictions regarding the visitation of The Reinhardts

and the three children.

His recommendation excluded Tyrell Reinhardt from

visitation based on the children’s accurate perception of Tyrell

Reinhardt’s violent nature. Further he restricted Peggy

Reinhardt and Jan Guidry Reinhardt to visitation only once a

month for up to one or one and one-half hours under the

supervision of a mental health care provider. In addition, The

Reinhardts were allowed only one weekly recorded telephone

contact with the children.

After only three supervised visits between the children

and The Reinhardts, Dr. York made a drastic, unsubstantial

recommendation regarding unsupervised visitation. Dr. York

further indicated that he had conferred with the children’s

Me

therapist, Dr. Lynn Parker, who he represented was in

agreement with his decision. Upon verification of Dr. Parker’s

opinion concerning unsupervised visitation, Dr. Parker stated

that she did not agree to unsupervised visitation.

Dr. York, after conferring with Dr. Parker, then

indicated that his recommendations were only

recommendations of a best case scenario and that he would

defer to Dr. Parker’s opinion regarding future visitation.

Presently based on the parties being unable to agree on

the form of visitation the Trial Court has ordered that the

visitations continue under the supervision of Dr. York until the

children and The Reinhardts are to have unsupervised

visitation. Further, the Trial Court has ordered that Petitioner

be responsible for the costs associated with these visitations.

Petitioner, after making a noble effort to resolve this

matter and fearing for the welfare and well being and safety of

her children, filed a motion pleading the unconstitutionality of

LA Civil Code Article 136 (B) and a motion to terminate

visitation based on the unconstitutionality of LA Civil Code

Article 136 (B).

After a hearing on those issues, the Trial Court denied

both motions. The First Circuit Court of Appeals affirmed the

Trial Court's ruling. The Louisiana Supreme Court, with

assigning reasons, denied Petitioner’s writ application on

December 18, 1998. Petitioner now comes before the

Honorable Justices of the United States Supreme Court and

respectfully prays that the Louisiana statute be declared

unconstitutional based on the law of the U.S. Constitution and

the Constitution of Louisiana. Petitioner respectfully requests

-6-

this Honorable Court reverse the decisions of the Louisiana

courts and find that LA Civil Code Article 136(b) is

unconstitutional, null and void.

ARGUMENT

1) Thipddsaleons Wicat Chctelt Chet of Apsieats ores

constitutional because _it _ constitutes _an

; issible _interf ith fund

: ,

peer Constituti

This Honorable Court has a longstanding tradition

recognizing and protecting parents’ rights in the care, custody

and management of their children without undue governmental

interference. This protection is rooted firmly in the Fourteenth

Amendment of the United States Constitution. “The liberty

guaranteed by the Fourteenth Amendment to the Federal

Constitution denotes . . . the right of the individual . . to marry,

establish a home and bring up children, to worship God

according to the dictates of his own conscience, and generally

to enjoy those privileges long recognized at common law as

essential to the orderly pursuit of happiness by free men”.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

In fact, this Honorable Court has characterized the

right to make parental decisions as a fundamental right under

the United States Constitution. The “freedom of personal

choice in matters of family life is a fundamental liberty interest

protected by the Fourteenth Amendment.” Santosky v. Kramer,

455 U.S. 745, 753 (1982); Meyer v. Nebraska, supra; see

Roberts v. United States Jaycees, 468 U.S. 609, 618-20 ( 1984)

7.

(parents’ right to child rearing deserves “‘a substantial measure

of sanctuary from unjustified interference by the State”);

Stanley v. Illinois, 405 U.S. 645, 651-52 (1972) (parents’ right

to conceive and raise their children has been deemed essential);

Ginsberg v. New York, 390 U.S. 629, 639 (1968) (“The

parents’ claim to authority in their own household to direct the

rearing of their children is basic in the structure of our

society.””); Prince v. Massachusetts, 321 U.S. 158, 166 (1944)

(the custody, care and nurture of the child reside first in the

parents); Pierce v. Society of Sisters, 268 U.S. 510, 534-35

(1925) (parents have liberty interests to direct the upbringing

and education of their children).

Louisiana Civil Code Article 136 (B), violates these

rights, which are protected under the U.S. Constitution. The

Louisiana grandparent visitation statute infringes upon the

parents’ liberty rights to make decisions about the rearing of

their children and likewise intrudes upon the parents’ privacy

in making such decisions.

The effect of Article 136 (B) is to interfere with

parental rights regarding the custody, care and management of

their children. There must be a powerful countervailing

interest to permit such interference. Santosky, supra, at 607.

Indeed, this Honorable Court has interpreted this to mean that

there must be first a showing of substantial harm to the child.

Id.; Stanley, supra; see , ¢.g., Wisconsin v. Yodel, 406 U.S.

205, 230 (1972) (the children of Amish parents were not

harmed when they received an Amish education as opposed to

a public education); Pierce, supra, at 403 (parents’ decision that

child be proficient in foreign language was determined not to

be injurious to health, morals and understanding of child).

The standard utilized by Louisiana in determining

whether grandparents are entitled to visitation is the “best

interest of the child” standard. Louisiana Civil Code Article

136 (B) reads in pertinent parts as follows:

Under extraordinary circumstances, a

relative, by blood or affinity, or a former

stepparent or stepgrandparent, not granted

custody of the child may be granted

reasonable visitation rights if the court finds

that it is in the best interest of the child.

The “best interest of the child” standard has been

rejected by this Honorable Court as the controlling factor in

regard to decisions effecting the child. The best interest of the

child “. . . is not traditionally the sole criterion--much less the

sole constitutional criterion--for other, less narrowly channeled

judgments involving children, where their interest conflict in

varying degrees with the interests of others”. Reno v. Flores,

507 U.S. 292, 303, 113 S.Ct. 1439, 1447 (1993). This Court

further elaborated that the “best interests of the child is rot the

legal standard that governs parents’ or guardians exercise of

their custody. . .” Id. Further this Court wisely acknowledged,

“the best interests of the child is likewise not an absolute and

exclusive constitutional criterion for the government’s exercise

of the custodial responsibilities that it undertakes , which must

be reconciled with many other responsibilities.” Id.

Clearly, the “best interest of the child” standard has

been deemed deficient by this Honorable Court in matters

relating to a child’s welfare. As Civil Code Article 136 (B)

stands, the “best interest of the child” standard is the sole

criterion utilized in determining whether grandparent visitation

is proper.

2) ; Ee

fundamental right of privacy and is subject to strict Jer the United States Constituti

This Honorable Court has established that in cases

where the infringement of a fundamental right is concerned, the

state must satisfy a heavy burden. “Where certain ‘fundamental

rights’ are involved, the Court has held that regulation limiting

these rights may be justified only by a ‘compelling state

interest” Roe v. Wade, 410 U.S. 113, 154, 93 S.Ct. 705, 727

(1973) citing Kramer v. Union Free School District, 395 U.S.

621, 627, 89 S.Ct. 1886, 1890, 23 L.Ed.2d 583 (1969); Shapiro

v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22

L.Ed.2d 600 (1969); Sherbert v. Verner, 374 U.S. 398, 406, 83

S.Ct. 1790, 1795, 10 L.Ed 2d 965 (1963).

In addition to the requirement of a compelling state

interest, any “legislative enactments must be narrowly drawn

to express only the legitimate state interests at stake”. Id. citing

Griswold v. Connecticut, 381 U.S., at 485, 85 S.Ct., at 1682;

Aptheker v. Secretary of State, 378 U.S. 500, 508, 84 S.Ct.

1659, 1664, 12 L.Ed.2d 992 (1964); Cantwell v. Connecticut,

310 U.S. 296, 307-308, 60 S.Ct. 900, 904-905, 84 L.Ed. 1213

(1940); see Eisenstadt v. Baird, 405 U.S., at 460, 463-464, 92

S.Ct. at 1042, 1043-1044 (White, J., concurring in result).

Although the definition of a compelling state interests

is nebulous at best, examples of state intrusions into the family

that have been considered compelling are readily accessible.

Acting under the doctrine of state police power, the state may

require vaccinations of children against communicable diseases

as part of its interest in protecting citizens from injuries. See

Prince v. Massachusetts, supra. The state has a compelling

interest in stepping in and preventing harm to a child such as in

-10-

Prince where state legislation prohibiting the use of minors to

sell merchandise on the street was at issue. Id. The police

power of the state can be best summed up as the power to

intrude on the family in the interest of society as a whole and

in situations where the child is placed in peril.

The State also may rely on its parens patriae power.

This power allows the state to act from the viewpoint and in the

interests of the child. In the same vein as the police power, the

exercise of the parens patriae power is conditioned on a the

prerequisite finding of harm or potential harm to the child. In

Wisconsin v. Yoder, supra, this Honorable Court was faced

with the state of Wisconsin’s argument that its parens patriae

power allowed it to require compulsory education of children

beyond the eighth grade. This court rejected that argument

based on the finding that the case presented in-Yoder was “not

one in which any harm to the physical or mental health of the

child or to the public safety, peace, order, or welfare has been

demonstrated or may be properly inferred.” Id. at 230.

As in the above examples, Louisiana must demonstrate

the requisite showing of harm to the child before it may

exercise its power to intrude on the parenting right of

Petitioner. This requirement is completely excluded from the

text of

Civil Code Article 136 (B) and thus, 136 (B) fails to

demonstrate a compelling state interest.

3) Louisiana Civil Code Article 136 (B) violates Artic

1, Mattila 4 Ad die Ndialaiainn Cdanttetion

Louisiana Civil Code Article 136 stands in direct

violation of Louisiana’s Constitution. The Louisiana

Constitution of 1974 affords Louisiana citizens privacy rights

my

beyond the scope of the United States Constitution. Article 1,

Section 5 of the 1974 Louisiana Constitution expressly

guarantees that every individual shall be secure in his person

against unreasonable searches, seizures, or invasions of

privacy.

The concept of privacy is deeply rooted in Louisiana’s

heritage and is founded upon historical notions and federal

constitutional expressions of ordered liberty. Justice Brandeis,

sometimes called the father of the idea of privacy, recognized

this fundamental right of privacy when he wrote:

The makers of our Constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance

of man’s spiritual nature, of his feelings and of

his intellect... They sought to protect

Americans in their beliefs, their thoughts, their

emotions and their sensations. They conferred,

as against the Government, the right to be let

alone - the most comprehensive of rights and

the right most valued by civilized men.

Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564,

572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).

Histoncally, Louisiana Courts have acknowledged and

affirmed parents’ protected rights in the care, custody and

management of their children and that parental rights are

fundamental liberty interests warranting great deference and

protection under the law. State in the Interest of D.D., 650

So.2d 447. (La.App.3 Cir. 1996); 650 So.2d 447, 449, citing

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d

551 (1972). Louisiana courts have expressly stated that parents

Lye

enjoy the paramount right of custody of their children and may

be deprived of that right only for compelling reasons which

must be expressly determined and supported by convincing

evidence. See In Re Custody of Landry, 662 So.2d 169

(La.App.1 Cir.1995); Lingo v. Kelsay,; 651 So.2d 499

(La.App.3 Cir.1995); In_ Interest of CLS,; 649 So.2d 53?

(La.App.3 Cir.1994),

In addressing the issue of custody disputes between

parents and non-parents, Louisiana courts have ruled, when

possible, the child should remain in the natural parent’ s custody

to maintain family unity and help the child identify as part of

the natural family unit. See State In Interest of Sylvester, 525

So.2d 604 (La.App.3.Cir.1988). Additionally, the non-parent

bears the strict burden of proving by convincing evidence that

the parent’s custody would result in substantial harm to the

child. See Creed v. Creed,; 647 So.2d 1362 (La.App.3

Cir.1994). The non-parent’s burden of proof goes beyond just

a mere affirmative finding that the best interests of the child

would be served by placing custody of the child with the non-

parent; rather, the non-parent has to prove that the grant of

custody to the parent would be detrimental to the child. See

Love v, Love, 536 So.2d 1278 (La.App.3 Cir.1988).

The First Circuit Court of Appeals Judge Guidry in his

dissenting opinion on this matter, clearly and simply

summarizes the rule of law controlling in this case. Judge

Guidry first states, "Absent a requirement to show resulting

‘substantial harm,’ the state's interest here may be legitimate in

fostering extended family relationships, but it is not compelling

and clearly does not outweigh the parents’ constitutionally

protected right to autonomy in child rearing decisions."

Reinhardt v. Reinhardt, 720 So.2d 78 (La.App. 1 Cir.1998).

Further, Judge Guidry intelligently recognizes that the

<i 3.

provisions of Louisiana Civil Code Article 136 (B) are an

unconstitutional infringement and place an undue burden on

the constitutionally protected right of parents to decide whether

their child will be enlightened, guided or taught by extended

family members or whether it will in fact harm their child. Id.

That decision must be left to the parent absent a showing of

substantial harm to the child.

Prior to the adoption of the 1974 Louisiana

Constitution, this Honorable Court recognized that one aspect

of the “liberty” protected by the Due Process Clause of the

Fourteenth Amendment is “a right of personal privacy, or a

guarantee of certain areas or zones of privacy.” Roe v. Wade, |

410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). While the |

outer limits of this aspect of privacy had not been marked by |

this Court, it was clearly recognized that freedom of personal

choice in matters of family life was a fundamental liberty |

interest protected by the Fourteenth Amendment. Stanley v, |

Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); |

Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.

645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct.

571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390,

43 S.Ct. 625, 67 L.Ed. 1042 (1923).

Article I, Section 5 of the 1974 Louisiana Constitution

expressly guarantees that every individual shall be secure in his

“person” against “unreasonable searches, seizures, or invasions

of privacy.” Since 1974, Louisiana courts have interpreted this

right to privacy declared in Article I, Sec. 5 to incorporate )

protection for several different categories of privacy interests. i

See Devlin, Privacy and Abortion Rights Under the Louisiana '

State Constitution: Could Roe v. Wade be Alive and Well in

the Bayou State?, 51 La.L.Rev. 685 (1991). This affirmative

right to privacy incorporates the principles of the decisions of

-14-

mai a aincincaaaamam dared co eacmcemeas

this Court in explicit statement and includes the right of an

individual to make, without unjustified government

interference, personal decisions relating to marriage,

procreation, contraception, family relationships, child rearing

and education. State v. Perry, 610 So.2d 746 (La. 1992);

Hondroulis v. Schuhmacher, 553 So.2d 398 (La. 1989).

In addition, it has been well recognized by Louisiana

courts that the Declaration of Rights of the Louisiana

Constitution provides more specific and broader protection of

individual liberties than does the Bill of Rights or other

provisions of the Federal Constitution. LSA - Constitution

Article I, Section 1. Louisiana courts have held the following,

specifically: (1) JLouisiana’s constitutional freedom of

expression and right to privacy provisions affords a stronger

protection for anonymity than the United States Constitution.

State v. Moses, App. 4 Cir. 1995, 94-0489 (La. App. 4 Cir.

5/16/95), 655 So.2d 779; (2) Provisions of the Louisiana

Constitution protecting citizens against “invasion of privacy”

afford a higher standard of individual liberty than the Fourth

Amendment of the United States Constitution. State _v.

Matthews, 654 So.2d 868 (La.App.4Cir.1995); (3) The

Louisiana Constitution affords a higher standard of individual

liberty than the Fourth Amendment of United States

Constitution, as Louisiana Constitution also protects against

“invasion of privacy.” State v. Thomas, 638 So.2d 440

(La.App.5 Cir.1994), writ denied, 663 So.2d 718 (La.1995); (4)

The Louisiana State Constitution’s declaration of right to

privacy is not duplicative of or merely coextensive with Fourth

Amendment; the State Constitution contains higher standard of

individual liberty than that afforded by Federal Constitution.

Banks v. Department of Public Safety and Corrections, 598

So.2d 515 (App. 1 Cir. 1992); (5) The Right of Privacy under

Louisiana Constitution is broader than the freedom against

-15-

unreasonable search and seizure under Fourth Amendment.

Holthus v. Louisiana State Racing Com’n, 580 So.2d 469

(App.4 Cir.1991), writ denied, 584 So.2d 1162; (6) Privacy

rights granted by Louisiana Constitution afford higher standard

of individual liberty than those granted by Federal

Constitution. State v. Vanderlinder,.575 So.2d 521(App. 5

Cir. 1991), writ denied, 580 So.2d 377; (7) The declaration of

privacy embodied in this section embodies a higher standard of

individual liberty than that afforded by jurisprudence

interpreting the Fourth Amendment of the Federal Constitution

(U. S. C. A. Const. Amend. 4). State v. Hernandez, 410

So.2d 1381 (1982).

Louisiana courts consider a parent’s interest in a

meaningful relationship with her children is “manifestly a

liberty interest protected by the Fourteenth Amendment”, In Re

Adoption of B.G.S., 556 So.2d 545 (La.1990). This Court has

declared that a biological parent’s right to “the companionship,

care, custody and management” of her children is a liberty

interest far more important than any property right. Santosky

yv. Kramer, 455 U.S. 745, 458-59, 102 S.Ct. 1388, 1397, 71

L.Ed.2d 599 (1982); Lassiter v. Dept. of Social Services, 452

U.S. 18, 27; 101 S.Ct. 2153, 2160, 68 L.Ed.2d 640 (1981).

The integrity of the family and the right of a parent to

raise her children has been recognized by Louisiana courts as

a fundamental right or liberty protected by the Fourteenth

Amendment, In the Interest of Howard, 382 So.2d 194.

The interest of parents in the custody and control of

their children is an interest or right subject to constitutional

protection. Under the Louisiana Constitution, the standard of

“strict judicial scrutiny” is applied to review state action which

imposes a burden on decisions as fundamental as those

included within the right of personal privacy.

~16-

ee

As stated by Justice Tate in his concurring opinion in

State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228

(1958):

The right of a parent to his child existed before

governments or other social institutions of

mankind. This natural right proceeds from our

Creator and exists independently of the state:

the state (and particularly by a democratic

government where rights not delegated thereto

by the people are reserved to the people, U.S.

Constitution, Amendment X, Art. 1, Section

15, La. Constitution of 1921, LSA) does not in

my humble opinion possess the power to take

away in favor of a stranger the God-given right

of a parent to his child, in the absence of the

parent’s forfeiture or abandonment of such

right or of positive detriment to the child. Cf.,

State ex rel. Martin v. Garza, 217 La. 532, 46

So.2d 760; State ex rel. Martin v. Talbot, 161

La. 192, 108 So. 411.

In Woods v, Bard, 290 So.2d 675 (La. 1991), the court

stated,““When a parent competes with a non-parent of a child,

the parent’s right is superior.”

Accordingly, it is axiomatic that since the parent’s

authority to raise their children is a basic, fundamental right, it

cannot be usurped or impinged by the government except when

doing so serves a compelling state interest and accomplishes its

goals with the least intrusive means. See

Moore v. City of East

Cleveland, 431 U.S. 494 (1977); Roe v. Wade, 410 U.S. 1 13,

155 (1973).

Fy 2

In recognizing the importance of parental rights, the

courts have clearly established that a compelling state interest

is one which involves the prevention of harm to the child.

Clark v. Kleidon, 682 So.2d 887. Therefore, there must be a

demonstration of harm to the child before the state can interfere

into the fundamental right of privacy of the parent. In other

words, there must also be an actual threat to the child’s

physical, emotional or mental well-being prior to the state

intruding into the parent’s fundamental right. Absent such a

demonstration of substantial harm, as in the instant case, the

parent’s constitutional authority would be usurped in violation

of Article I Section 5 of the Louisiana Constitution. Without

a substantial danger of harm to the children, a court may not

constitutionally impose its own subjective notions of the best

interest of the children. Hawk v. Hawk, 855 S.W. 2d 573

(Tenn. 1993).

The Louisiana Civil Code Article 136 is

unconstitutional because it fails to require a demonstration of

harm to the children prior to unduly intruding upon the parent’s

constitutional rights to make parental decisions. In addition to

the fact that there must be a compelling state interest, the

challenged statute must also be the least intrusive means of

furthering that state interest. Even if one were to argue that

there was a compelling state interest being served by granting

grandparent visitation over the objection of the parents, the

resulting effect of promoting litigation between family

members, bringing the intra-family problems to court and

possibly subjecting minor children to judicial inquiry is not the

“least intrusive” means of furthering the state interest. A

judicial comparison of competitors for custody of a child does

violence to the rule of “parental rights.” See Blow v. Lottman,

75 $.D. 127,131 59 N.W. 2d 825 (1953).

-18-

In light of the consistent recognition that Louisiana

courts have given to parental rights, it is proper for parents to

expect privacy regarding whom their children can and cannot

visit, regardless of familial relation.

an 1 alle: lati iS

, +_visitati fitutional

infrin of tal right

Louisiana’s grandparent visitation statute, Civil Code

Article 136, stands in direct conflict to the recent holdings of

other jurisdictions where the constitutionality of grandparent

visitation statutes was challenged. Several state jurisdictions

have, because of their inherent unconstitutionality, correctly

stricken down grandparent visitation statutes. These statutes,

written in a very similar manner to Civil Code Article 136,

were found unconstitutional based on the lack of a requirement

of a finding of substantial harm to the child prior to allowing

visitation.

The Supreme Courts of Florida, Georgia, Washington,

Oklahoma and Tennessee have correctly addressed this issue.

In Brooks v. Parkerson, 454 S.E.2d 769, 770 (Ga. 1995), the

child’s maternal grandmother petitioned for visitation under

Georgia statute OCGA §19-7-3. The petition was opposed by

the child’s parents who subsequently filed a motion to dismiss

on the grounds that the statute was facially unconstitutional.

OCGA §19-7-3 allowed the court to “grant any grandparent of

the child reasonable visitation rights upon proof of special

circumstances which make such visitation rights necessary to

the best interest of the child.” Id. at 771. The court properly

held that the grandparent visitation statute failed to require a

showing of harm to the child prior to ordering visitation, and

thus was declared unconstitutional. In reaching its ruling, the

court recognized well-established law that parents have an

-19-

interest to raise their children without unreasonable state

interference protected by the United States Constitution. Id.

Relying on prior decisions of this Court, the Georgia

court correctly acknowledged that “state interference with a

parent’s right to raise children is justifiable only where the state

acts in its police power to protect the child’s health or welfare,

and where parental decisions in the area would result in harm

to the child.” Id. at 772. It reasoned that even if a special bond

exists between the child and grandparent which would benefit

the child, the impact of a lawsuit to enforce maintenance of that

bond over the parents’ objection could only have a deleterious

effect on the child. Id. at 773.

Justice J. Sears in his concurring opinion stated:

The family requires the most delicate mixture

of nature and convention, of human and divine,

to subsist and thrive. . . However, as important

as grandparents can be in the lives of their

grandchildren, the relationship between parent

and child is paramount. For this reason I

cannot believe in either the constitutionality or

the political correctness of any law that allows

a court, using its own notions of what “special

circumstances” are, to pierce the delicate,

complex and sacred unity of parent and child

against the wishes of fit parents and without a

showing of absolute necessity. . . absent abuse

and neglect, parents and their children have the

right to “remain together without coercive

interf.rence of awesome power of the state.”

Duchesne v. Sugarman, 566 F.2d 817, 825 (2™

Cir. 1977). . .Between parent and child, there

is no monster like separateness. It can grow

-20-

ESE OE LTTE

even faster than children, shutting first the

heart, then the home, then history. The rights

that some grandparents may seek under the

liberal rules of the statute invalidated today

could separate fit parents from responsibility

for and authority over their children, thereby

undermining the privacy and primacy of the

American family. The statute cannot be

allowed to stand.

265 GA 189, 195, 196, 454 S.E. 2d 769, 774, 775.

| The recent ruling of the Washington Supreme Court in

the matter of In Re Custody of Sara Skyanne Smith, 969 P.2d

21 ( Wa.1998), is particularly illustrative of a correct decision

striking down an unconstitutional visitation statute that does

not fulfill the requirements of strict scrutiny. Scrutinizing the

“best interest of the child” standard of RCW 26.10.160(3) , the

court held:

Short of preventing harm to the child, the

standard of ‘best interest of the child’ is

insufficient to serve as a compelling state

interest overruling a parent’s fundamental

rights. State intervention to better a child’s

quality of life through third party visitation is

not justified where the child’s circumstances

are otherwise satisfactory. To suggest

otherwise would be the logical equivalent to

asserting that the state has the authority to

break up stable families and redistribute its

infant population to provide each child with the

best family.” It is not within the province of

the state to make significant decisions

BS ee Ee Pere ae

-21-

concerning the custody of children merely

because it could make a “better” decision.

Id. at 31. The court went further and stated, “parents have a

right to limit visitation of their children with third persons. The

law’s concept of the family rests ‘on a presumption that parents

possess what a child lacks in maturity, experience, and capacity

for judgment . . .”” Id. [citation omitted].

In Von Eiff v. Azicri, 720 So.2d 510 (1998), the

Florida Supreme Court held that because the Florida statute

allowing grandparent visitation did not require a showing of

demonstrable harm to the child, it would not survive the

compelling state interest test. According to the court, “neither

the legislature nor the courts may properly intervene in parental

decision-making absent significant harm to the child threatened

by or resulting from these decisions”. Id., at 514.

Further, in Hawk v. Hawk, 855 S.W. 2d 573 (Tenn.

1993), the Tennessee Supreme Court held that Tennessee

Grandparents’ Visitation Act violated the State Constitutional

Right to privacy in making parental decisions. The Tennessee

Supreme Court in Hawk reasoned:

By holding that an initial showing of harm to a

child is necessary before the State may

intervene to determine the “best interests of the

child,” we approve the reasoning of both

Tennessee and federal cases that have balanced

various state interests against parental privacy

rights. Implicit in Tennessee case and statutory

law has always been the insistence that a

child’s welfare must be threatened before the

State may intervene in parental decision-

making.

a.

The requirement of harm is the sole protection

that parents have against pervasive state

interference in the parenting process.

We, too, agree that neither the legislature nor a

court may properly intervene in parenting

decisions absent significant harm to the child

from those decisions. ... An approach requiring

a court to make an initial finding of harm to the

child before evaluating the “best interests of the

child” works equally well in this case to

prevent judicial second-guessing of parental

decisions...

Id. at 580-81.

The Hawk court properly rejected the argument that the

grandparent-grandchild relationships always benefit children,

because it “overlooks the necessity of a threshold finding of

harm before the state can intervene in the parent-child

relationship.” Id. at 581.

The Hawk court concluded its decision by stating:

We hold that Article 1, Section 8 of the

Tennessee Constitution protects the privacy

interest of these parents in their child-rearing

decisions, so long as their decisions do not

substantially endanger the welfare of their

children. Absent some harm to the child, we

find that the state lacks a sufficiently

compelling justification for interfering with this

fundamental right.

hs,

The Oklahoma Supreme Court, ruling in Herbst v.

Sayer, 971 P.2d 395 (1998), struck down Oklahoma’s

grandparent visitation statute, 10 O.S. Supp. 1996 § 5 (A)(1),

due to its lack of a requirement of substantial harm to the child.

The court reasoned:

. . . a Vague generalization about the positive

influence of many grandparents have upon their

grandchildren 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. . .If operating

over the objection of fit parents, grandparent

visitation may be imposed only upon a showing

that the child would suffer harm without it.

Id. at 398. In addressing the conflict between the fundamental

rights of parents to raise their children and the statute mandated

grandparent visitation, the court found “ . . .in favor of the

preservation of the parents’ constitutional rights.” Id. The

Oklahoma Supreme Court clearly stated that, “the relationship

between parent and child must be held paramount.” Id.

Turning its attention to the “best interest of the child”

standard of the Oklahoma grandparent visitation statute, the

court unequivocally rejected this provision. It stated:

Herbst argues this case is ultimately about his

grandchild’s ‘best interests’. This argument

loses sight of the threshold which must be met

in order to address the child’s best interests in

the first place. To reach the issue of a child’s

best interests, there must be a requisite showing

of harm, or threat of harm, to bring the issue

before the court . . .Absent a showing of harm,

(or threat thereof) it is not for the state to

-24-

bed" ME Oe FE ET Re aS Re a LS ES HC Ee eae Sn

a Tn ny a ae a am eee ee ne os ee *

“

choose which associations a family must

maintain and which the family is permitted to

abandon. This case does not meet the threshold

test to put the child’s best interests at issue.

Id. The court summarized by stating that Oklahoma’s

grandparent visitation statute was unconstitutional because it

“falls short of a compelling state interest.” Id. at 399.

In contrast to the above cases stands the ruling of the

Louisiana First Circuit Court of Appeals.’ The Louisiana First

Circuit held:

Civil Code article 136B is not substantially

intrusive of the parental right of privacy in

child rearing. The codal article is narrowly

drawn to further visitation with the extended

family, but only under set, restrictive

conditions. We note that the article specifically

requires a threshold finding by a court of

‘extraordinary circumstances.’ . . .If the court

finds such circumstances the court must next

determine if the visitation is in the ‘best interest

of the child.’

Reinhardt _v. Reinhardt, 720 So.2d 78, 80 (La.App.1*

Cir. 1998).

Although the court makes repeated mention of

“extraordinary circumstances” as the threshold requirement of

' The Louisiana Supreme Court affirmed the First Circuit

Court of Appeals’ holding and adopted its opinion . Therefore

Petitioner must rely on the decision in Rei

Reinhardt v. Reinhardt,

720 So.2d 78 (La.App. 1 Cir.1998) as a basis for her argument.

26.

extended family visitation, no definition is provided. The only

possible definition lies in the reasoning of the court that “Civil

Code article 136 is found in the code section governing

divorce. Thus it provides for court imposed visitation with the

children of divorced parents.” Id. at 80. The court further

elaborates by stating that “after the fragmentation of the

children’s primary family through divorce, the state has a

legitimate and substantial interest in encouraging beneficial

extended family relationships with children. Id.

Finally, the court reasons that “the state mandates

ascendant support of descendants in need. La. C.C. art. 229. In

anticipation of a possible order of future support, the state and

the ascendants have a legitimate and substantial interest to

maintain extended family relationships through reasonable

visitation.” Id.

The only conc! sion that may be drawn from the

court’s argument is that an “extraordinary circumstance” is a

circumstance in which the parents are divorced and the

custodial parent is disallowing grandparent and extended

family visitation. Additionally, it appears that the court

considers the rendering of financial assistance and support by

the grandparents as ascendants to the parents and children as

descendants a proper prerequisite for court mandated visitation.

Nowhere in the majority’s reasoning is the issue of a

showing of substantial harm addressed. The majority finds the

“best interest” standard contained in article 136 (B) as a

sufficient basis for making the determination of visitation. Only

in the dissent by Judge Guidry are the issues of substantial

harm and exactly what’ constitutes “extraordinary

circumstances” given attention. Addressing those issues Judge

Guidry stated in part:

Other circuits in this state have looked to the

language of 136(B) and found divorce, death

and interdiction of one or both parents to be

‘extraordinary circumstances’ in which

extended family relationships may serve to

enlighten, guide and teach children. The

extraordinary circumstances language of

136(B) nor the codal “best interest” provisions

do not rise to the level of, nor specifically

require a showing of substantial harm if non-

parent visitation is not granted.

Id. at 81.

Petitioner urges this Honorable Court to find as did

Judge Guidry that article 136(B), in lacking a requirement of

substantial harm, is constitutionally deficient.

The Florida, Oklahoma, Georgia, Tennessee and

Washington cases are directly analogous and persuasive to the

instant case. They unequivocally represent that other

jurisdictions are in conflict with Louisiana in regard to the

legitimacy and constitutionality of grandparent visitation

statutes. The above cited jurisdictions stand in direct conflict to

the holding of the Supreme Court of Louisiana. The Louisiana

courts have ruled that grandparent visitation is a compelling

state interest, even absent the showing of substantial harm to

the child. This ruling cannot be left to stand. This Honorable

Court must grant Petitioner’s Writ of Certiorari in this matter

and resolve the issue of grandparent visitation for the benefit of

all jurisdictions.

2-

CONCLUSION

The right to make parental decisions is a fundamental

right guaranteed by the United States and Louisiana

Constitutions. As such, any infringement or limitation of this

right is subject to strict scrutiny. Louisiana’s grandparent

visitation statute, Civil Code article 136 (B), fails to meet this

standard because it lacks the requirement of a demonstration of

harm to the child prior to the ordering of extended family

visitation. As the rulings of jurisdictions in conflict with

Louisiana have shown, this demonstration of harm is a

prerequisite to a finding of a compelling state interest. Absent

such, the statute is facially unconstitutional. For these reasons

this Honorable Court must find Louisiana Civil Code article

136 (B) unconstitutional.

Respectfully siete 6, ae

“

iil ZA

. PALAZZO, LA #22130

0 Loyola Avenue, Suite 300

New Orleans, Louisiana 70113

Telephone: (504) 586-1442

Attorney for Jan Marie Reinhardt, et al. --Petitioners

Date: March iss 1999

eames ;

-28-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1998

JAN MARIE REINHARDT, et al. --PETITIONERS

VS.

PEGGY MISTICH REINHARDT, et al. --RESPONDENTS

PROOF OF SERVICE

I, Leo J. Palazzo, do swear or declare that on this date,

March us © 1999, as required by Supreme Court Rule 29 I have

served the enclosed PETITION FOR A WRIT OF

CERTIORARI on each party to the above proceeding or that

party’s counsel, and on every other person required to be

served, by depositing an envelope containing the above

documents in the Untied States mail properly addressed to each

of them and with first-class postage prepaid.

The names and addresses of those served are as

follows:

-29.

Stanley P. Lemoine

Clerk of Court

First Circuit Court of Appeal

P.O. Box 4408

Baton Rouge, Louisiana 70821

Judge John L. Weimer III

17" Judicial District Court

Parish of Lafourche

P.O. Box 231

Thibodaux, Louisiana 70302

Carlos M. Finalet, III

Office of the Attorney General

STATE OF LOUISIANA

P.O. Box 94005

Rebecca N. Robichaux

4571 Highway |

Raceland, LA 70394

Baton Rouge, Louisiana 70804-9005

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on MarchfZ_

—

, 1999, ~—

o.

“

“Leo J. Palazzo,

LA #22130

-30-

A-l

APPENDIX A

THE SUPREME COURT OF THE

STATE OF LOUISIANA

PEGGY MISTICH REINHARDT, ET AL

VS. No. 98-C-2697

JAN MARIE MANNO REINHARDT,

ET AL

IN RE: Reinhardt, Jan Marie Et Al; — Defendant(s); Apply-

ing for Writ of Certiorari and/or Review; Parish of Lafour-

che 17th Judicial District Court Div. “A” Number 79013;

to the Court of Appeal, First Circuit, Number CA97 1889

December 18, 1998

Denied.

A-2

COLOGERO, C.J. would grant the writ.

VICTORY, J. would grant the writ.

KNOLL, J. not on panel.

Supreme Court of Louisiana

December 18, 1998

/s! Mlegible

Clerk of Court

For the Court

A-3

APPENDIX B

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

Post Office Box 4408

Baton Rouge, Louisiana 70821-4408

Docket Number : 97/CA/1889 DATE: Sep. 25 1998

PEGGY MISTICH REINHARDT AND TYRELL WILEY

REINHARDT

VERSUS

JAN MARIE MANNO REINHARDT AND DARWIN

JAMES REINHARDT

TO:

Leo J. Palazzo Rebecca N. Robichaux

600 Loyola Ave., Suite 300 4571 Highway 1

New Orleans, LA 70113 Raceland, LA 70394

Bennett Wolff Diana M. Sanders

600 Loyola Ave. P. O. Box 297

Suite 310 Raceland, LA 70394

New Orleans, LA 70113

Bertha M. Hillman

P. O. Box 1062

Thibodaux, LA 70302

Carlos M. Finalet, III

P. O. Box 94005

Baton Rouge, LA

70804-9005

A4

NOTICE OF JUDGMENT

You are hereby served with a copy of the opinion in the

above entitled case.

Your attention is invited to Rule 2-18 (Rehearing) of

the Uniform Rules of the Courts of Appeals, effective July

1, 1982.

I hereby certify that this opinion and notice of judgment

were mailed to the trial judge, the clerk of the trial court,

all appeal counsel of record, and all parties not represented

by counsel this date.

/s/ Karen West

STANLEY P. LEMOINE, CLERK

COURT OF APPEAL, FIRST CIRCUIT

AMENDED

TIME DELAY FOR REHEARING, C.C.P. ART. 2166;

C.Cr.P. ART. 922; Act No. 451, EFFECTIVE AUGUST 30,

1983.

FEE FOR REHEARING, R.S. 13:352, AS AMENDED,

EFFECTIVE AUGUST 30, 1986.

PO TTT ee OS ee Po Ctr eh ee ate a ee Eee en, ae

A-5

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

Number 97 CA 1889

PEGGY MISTICH REINHARDT, et al

VERSUS

JAN MARIE MANNO REINHARDT, et al

Judgment Rendered: September 25, 1998

se ¢ @ © #8 ee e &

Appealed from the

Seventeenth Judicial District Court

in and for the Parish of Lafourche

State of Louisiana

Suite No. 79013 Div. “A”

Honorable John L. Weimer, Judge

ses e@s8tee#8e# 8 @ 8 Ss

Rebecca N. Robichaux Counsel for Plaintiff-

Raceland, LA Appellees - Peggy Mistich

Reinhardt, Tyrrell Wiley

Reinhardt, & Jan Guidry

Reinhardt

Leo J. Palazzo Counsel for Defendant -

New Orleans, LA Appellant - Jan Marie

Manno Reinhardt

A6

Dianna M. Sanders Counsel for Defendant -

Raceland, LA Darwin J. Reinhardt

Bertha Hillman Counsel for Defendant -

Thibodaux, LA Chad, Chase & Chelsea

Reinhardt (children)

Carlos Finalet, III Counsel for Attorney

Attorney General’s Office General -

Baton Rouge, LA Richard P. Ieyoub

* * * * * * © & K *

BEFORE: FITZSIMMONS, GUIDRY, AND CHIASSON,

JJ.4

1 Judge Remy Chiasson, retired, is serving as judge pro tempore by special

appointment of the Louisiana Supreme Court.

|

|

1

|

FITZSIMMONS, J.

Defendant-appellant, Jan Marie Manno Reinhardt (Ms.

Manno), filed a motion to terminate visitation between her

children and paternal relatives. Ms. Manno argued that the

visitation was not in the best interest of the children and at-

tacked the constitutionality of article 136B. After a hearing,

the district court denied the motion to terminate and found

Civil Code article 136B constitutional. The only issue on ap-

peal is the constitutionality of article 136B. We affirm.

Article 136B provides for visitation with a relative, by

blood or affinity, and step-grandparents or former step-

parents. The visitation article requires “extraordinary cir-

cumstances.” The trial court must then assess if it is in the

“best interest” of the children. Ms. Manno argues that arti-

cle 136B infringes on her fundamente] parental right to raise

her children, and decide whom they should see.

Statutes are presumed to be valid. If possible, the con-

stitutionality of a statute should be upheld. The burden of

proof rests with the party attacking the statute. Soloco, Inc.

v. Supree, 97-1256 p.3 (La. 1/12/98); 707 So.2d 12, 114; State

v. Gamberella, 633 So.2d 595, 601-02 (La. App. Ist Cir.

1993), writ denied, 94-0200 (La. 6/24/94; 640 So.2d 1341. The

U.S. Constitution and the Louisiana Constitution recognize

the fundamental liberty interest or right of personal privacy

in decisions relating to marriage, child rearing, and family

relationships. Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388, 1894-95, 71 L.Ed.2d 599 (1982); Zablocki v.

Redhail, 434 U.S. 374, 384-86, 98 S.Ct. 673, 680-81, 54

A8

L.Ed.2d 618 (1978); State v. Perry, 610 So.2d 746, 755-56

(La. 1992); Gamberalla, 633 So.2d at 604. In Louisiana, the

standard of strict scrutiny is applied to review state action

that imposes a burden on decisions as fundamental as those

included within the right of personal privacy.2 Under the

standard of strict scrutiny, the state action “may be justified

only by a compelling state interest, and the state action must

be narrowly confined so as to further only that compelling

interest,” Perry, 610 So.2d at 760; Gamberella, 633 So.2d

at 604; State, Department of Social Services v. McCorkle,

97-13 pp. 7-8 (La. App. 5th Cir. 4/29/97); 694 So.2d 1077, 1081,

writ denied, 97-1399 (La. 9/5/97); 700 So.2d 517.

However, the fundamental right of personal privacy is

not absolute. Gamberella, 633 So.2d at 604. “The well-being

of its children is of course a subject within the (s)tate’s con-

stitutional power to regulate. ...” Ginsburg v. New York,

390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968).

The state regulates parental rights in many areas: for ex-

ample, child custody, child visitation, child labor, schooling,

and health. Additionally, when analyzing the effect of a

regulation on the rights of parents to privacy in family deci-

sions and child rearing, the interest and rights of the children

and relatives should also be considered and balanced.

Gamberella, 633 So.2d at 604; see Sightes v. Barker, 684

N.E. 2d 224, 228 & 232 (Ind. Ct. App.), transfer denied, 690

N.E. 2d 1187 (Ind. 1997); Ridenour v. Ridenour, 120 N.M.

352, 355-56, 901 P.2d 770, 773-74 (N.M. Ct. App.), cert. denied,

120 N.M. 68, 898 P.2d 120 (1995).

2Because strict scrutiny is the highest level of review on this issue, it is

not necessary to review the statute under the U.S. Constitution.

A-9

Civil Code article 136 is found in the code section gover-

ning divorce. Thus, it provides for court imposed visitation

with the children of divorced parents. See Lingo v. Kelsay,.

94-1038 p.2 (La. App. 3d Cir. 3/3/95); 651 So.2d 499, 500. After

the fragmentation of the children’s primary family through

divorce, the state has a legitimate and substantial interest

in encouraging beneficial extended family relationships with

children. See Sightes v. Barker, 684 N.E. 2d at 231;

Michael v. Hertzler, 900 P.2d 1144, 1151 (Wyo. 19965);

Campbell v. Campbell, 896 P.2d 635, 643 (Utah App. 1995);

Hollingsworth v. Hollingsworth, 34 Ohio App.3d 18, 16,

516 N.E.2d 1250, 1253 (1986). In cases, like this one, where

one parent is infrequently or not even involved with the

children,’ the children’s relationship with one side of their

extended family may be lost in the absence of grandparent

or family member visitation. See Lindsey v. House, 29, 790

p.4 & n.2 (La. App. 2d Cir. 9/24/97); 699 So.2d 1190, 1192;

Ray v. Ray, 94-1478 pp.2-3 (La. App. 3d Cir. 1995); 657 So.2d

171, 173. Additionally, as noted by the district court, the state

mandates ascendant support of descendants in need. La. C.C.

art. 229. In anticipation of a possible order of future support,

the state and the ascendants have a legitimate and substan-

tial interest to maintian extended family relationships

through reasonable visitation. The sum of these facts and

concerns is compelling interest by the state in stabilizing

broken or single parent families through visitation with ex-

tended family members.

Civil Code article 136B is not substantially intrusive

of the parental right of privacy in child rearing. The codal

article is narrowly drawn to further visitation with extended

3 The father is in prison.

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family, but only under set, restrictive conditions. We note

that the article specifically requires a threshold finding by

a court of “extraordinary circumstances.” It is imperative

that trial courts articulate in cogent reasons for judgment,

oral or written, the exact nature of the “extraordinary cir-

cumstances.” If the court finds such circumstances, the court

must next determine if the visitation is in the “best interest

of the child.” The reverse order of review or analysis is not

acceptable. Civil Code article 136B (1) - (5) provides factors

for the trial court to use in the “best interest” determina-

tion. The trial court’s “best interest” analysis should also

be contained in the reasons for judgment.

To avoid an unconstitutional application of article 136B,

the trial court must be protective of the parent’s fundamen-

tal right of privacy in child rearing and cognizant of the “ex-

traordinary circumstances” and “best interest” codal re-

quirments. This is true in the initial hearing and any subse-

quent modification. The mere status of the mover for visita-

tion as a grandparent, relative, or step-relation is not suffi-

cient to meet the requirements of article 136B. Civil Code

article 136B does not presume a beneficial extended family

relationship. See Ridenour, 120 N.M. at 356, 901 P.2d at

774. The burden is on the mover to show “extraordinary cir-

cumstances” and that the visitation is in the children’s “best

interest.” Neither should liberal visitation, often granted to

a non-custodial or non-domiciliary parent, be automatically

granted to a grandparent, relative, or a step-parent or step-

grandparent. As the mandated visitation to non-parents is

increased, the infringement and burden on the fundamen-

tal right of privacy in child rearing increases proportional-

ly. In the absence of an increasingly compelling state interest,

visitation that unduly burdens the parental right would be

—————E—

A-11

an unconstitutional infringement.

After a strict scrutiny review, we find that Civil Code

article 136B is constitutional. The state’s interest is compell-

ing. The article is narrowly drawn and rationally related to

the state interest. It is not unduly intrusive on the parental

right of privacy, and acts as an appropriate balance of the

competing interests of the parent, the extended family, and

the children. See Sightes, 684 N.E. 2d at 233; Ridenour,

120 N.M. at 356, 901 P.2d at 774; Sketo v. Brown, 559 So.2d

381, 382 (Fla. 1st DCA 1990); Hollingsworth, 34 Ohio App.

3d at 16, 516 N.E. 2d at 1253-54.

For these reasons, we affirm the trial court’s ruling

upholding the constitutionality of Civil Code article 136B.

The costs of the appeal are assessed to appellant, Ms. Manno.

AFFIRMED.