Case Summary: The maternal grandparents of two boys petitioned the Family Court for visitation with the boys, pursuant to 10 Del. C. §1031(7), the grandparent visitation statute.  The boys previously had a close relationship with their maternal grandparents, and the Division of Family Services had placed the boys with their grandparents for six months after the Family Court had deemed their mother unfit.  When the boys were returned to their mother’s care, the court advised the mother to promote a relationship between the boys and their grandparents.  Within a year of the boys’ return, however, the mother refused to allow the grandparents to contact or visit the boys.

The Family Court granted the grandparents’ visitation petition in April 2005, and the mother filed a motion for reargument shortly thereafter.  A hearing was scheduled for September 2005 to evaluate the visitation; however, no visits had occurred yet because the family could not find an agency willing to supervise the visitation.  At the September hearing, the court heard the mother’s motion, in which she challenged the grandparent visitation statute as unconstitutional on three grounds, arguing that the statute was:

1. Unconstitutional on its face, because it conflicts with the U.S. Supreme Court’s 2000 decision in Troxel v. Granville, 530 U.S. 57, striking down a Washington statute that permitted any third party to petition a court for visitation;
2. Unconstitutional on its face, because it is internally inconsistent; and
3. Unconstitutional as applied to her, because it infringes on her fundamental right to make decisions about her children’s care, custody and control.

The Family Court rejected all three of the mother’s arguments and upheld the statute.

First, the Family Court found that the Delaware statute does not conflict with the U.S. Supreme Court’s decision in Troxel.  Specifically, the court found that the statute in Troxel was broad, allowing Washington courts to grant visitation rights to any person “when visitation may best serve the best interest of the child.” Wash. Rev. Code §26.10.160 (3).  By contrast, the court found that the Delaware statute is much narrower, allowing only grandparents to petition for visitation.  Under the Delaware statute, grandparents bear the burden of proving that visitation is in the child’s best interests, and the statute provides that no visitation will be granted when both parents are living together and both object to the visitation.

The Family Court recognized that parents have a fundamental right to make decisions about how to raise their children, and that a statute cannot infringe on this right unless it is narrowly tailored to further a compelling government interest.  The court therefore subjected the statute to strict scrutiny.The court held that the statute was not unconstitutional on its face because “Delaware has a compelling interest in protecting minors from traumatic loss by permitting the maintenance of an established grandparent-grandchild relationship,” and because the statute is narrowly tailored to further that interest.

Second, the court rejected the argument that the statute was inconsistent, finding the language and intent of the statute to be “unambiguous.”

Third, the court rejected the mother’s argument that the statute was unconstitutional as applied to her.  The court had given special weight to the mother’s objection to visitation, and had ordered only supervised, limited visitation based on this objection.  Before ordering visitation, the court found that “special factors” weighed in favor of interfering with the mother’s rights to control the rearing of her children:  mental health concerns, the mother’s (and DFS’) previous reliance on the grandparents for help raising the boys, and great instability in the boys’ lives.  After considering the children’s best interests, the court held that “it is important for the children to have some continuity in their lives,” and that grandparent visitation was necessary to provide this continuity.

Finally, the court rejected the mother’s argument that her objection should be given the same deference as the objections of two parents living together would be.  A single parent’s objection to visitation does not prevent the court from ordering visitation, but the objections of both parents, when they are living together, prevent the court from doing so.  The court held that there is a valid reason for the statute’s differing treatment of parental objections:  Children in single-parent families may be more vulnerable to harm from the loss of a relationship with their grandparents.

Therefore, the Family Court held that the Delaware grandparent visitation statute was constitutional and ordered visitation to begin by March 1, 2006.

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