This opinion is subject to revision before final

publication in the Pacific Reporter.

2015 UT 84

IN THE

SUPREME COURT OF THE STATE OF UTAH

———————

TRACY JONES AND ELLIE JONES, 

Petitioners,

v.

SHARON JONES,

Respondent.

———————

No. 20130815

Filed September 16, 2015

———————

On Certiorari to the Utah Court of Appeals

———————

Third District, Salt Lake

The Honorable Judith S.H. Atherton

No. 094904262

———————

Attorneys:

Bryant J. McConkie, Adam Wentz, Salt Lake City, for appellants

Paul R.Q. Wolfson, Shirley Woodward, Sonya L. Lebsack, Gerard 

Sinzdak, Washington, D.C., Anthony C. Kayne, Emily Wegener, 

Salt Lake City, for appellee

———————

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, and JUDGE FAUST 

joined.

Having recused herself, JUSTICE DURHAM does not participate 

herein; DISTRICT COURT JUDGE ROBERT P. FAUST sat.

JUSTICE PARRISH sat for oral argument. Due to her resignation from 

this court, however, she did not participate herein.

———————
JONES v. JONES

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 In this case we consider the legal basis for an order of visitation for a child‘s grandparents, issued over the wishes of the parent. The order in question was issued after a trial under the terms 

of Utah Code section 30-5-2. Our court of appeals invalidated the 

order as a violation of the custodial parent‘s constitutional right to 

the custody, care, and control of her child. Jones v. Jones, 2013 UT 

App 174, ¶¶ 32–35, 307 P.3d 598.

¶2 We affirm the judgment of the court of appeals. In so doing, we hold that a visitation order under section 30-5-2 is subject 

to strict scrutiny review, requiring proof that a grandparent visitation order is narrowly tailored to advance a compelling governmental interest. Under the operative statute as applied by the district court in this case, we find only one interest that even arguably qualifies as compelling—a showing of ―harm‖ resulting from 

the loss of a ―substantial relationship‖ with a grandparent, where 

the grandparent ―acted as the grandchild‘s custodian or caregiver.‖ UTAH CODE 30-5-2(2)(d). And finding no such proof on the 

record here, we hold that the grandparents failed to establish a 

legally sufficient basis for an order of visitation.

I

¶3 In November of 2007, I.J. was born to Sharon Jones1 and

Tracy Jones Jr., her then-husband. Tracy‘s parents, Tracy Sr. and 

Ellie Jones, lived more than an hour away. They visited their 

granddaughter and her parents about once or twice a month. Occasionally they also babysat. 

¶4 Sharon and Tracy Jr. had a troubled marriage. Evidence in 

the record indicates that Tracy Jr. struggled with addiction and 

was physically and emotionally abusive. The couple divorced 

when I.J. was around fourteen months old. Custody was split 

equally between them at that time. 

¶5 For six weeks, beginning in late January of 2009, Tracy Jr. 

moved in with his parents. During this time, I.J., who was less 

than eighteen months old, spent several days a week in her 

 

1 Sharon has since remarried and now goes by the name of Sharon Dunn.
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Opinion of the Court

3

grandparents‘ home with Tracy Jr. And when Tracy Sr. and Ellie

were not at their full-time jobs, they took part in the day-to-day 

care of I.J.—changing diapers, feeding, etc. In early May of that 

same year, Tracy Jr. died of a heroin overdose while I.J. was in his 

custody. Once authorities discovered Tracy Jr.‘s body—and I.J.,

who was alone in her deceased father‘s care—they returned I.J. to 

her mother‘s custody. 

¶6 From this point on, I.J.‘s grandparents and mother began to 

disagree over visitation. Tracy Sr. and Ellie requested overnight 

visits with their granddaughter, but Sharon felt that I.J. was not 

ready. She told the grandparents that I.J. was ―struggling‖ to understand what had happened to her father, and that she thought it 

was best that she try to ―get [I.J] back into a routine‖ before allowing the grandparents to take I.J. for weekend or overnight trips. 

Instead Sharon proposed that the grandparents call twice a week 

and that they plan sporadic ―day visits.‖ The grandparents were 

not happy with this arrangement. They asked to ―have every other weekend with [I.J.] (Friday night to Sunday night).‖ But for a 

time they respected Sharon‘s wishes and accordingly stuck with

phone calls and occasional day visits.

¶7 In time, however, the grandparents thought better of this

arrangement. They renewed their request for an overnight weekend visit. When Sharon denied this request (explaining that she 

had scheduled time with other family members on the weekend 

in question), the grandparents accused her of ―stripping‖ them of 

their relationship with I.J. They then demanded the right to take 

I.J. for two weekends a month from Friday through Sunday, to 

have a summer vacation with I.J. each year, and to have a right of 

visitation on all major holidays and on I.J.‘s birthday. When Sharon did not reply, the grandparents followed up with an email 

threatening to sue for a right of visitation. Sharon then made a 

counter-offer—of visitation on one Saturday every other month, 

with the condition that she or another family member be present 

during the visit. The grandparents responded that they would 

―see [her] in court.‖ They then filed a petition for visitation under 

Utah Code section 30-5-2. 

¶8 In their visitation petition, the grandparents sought unsupervised visitation with I.J. for two weekends a month (from Friday evening through Sunday evening), two full consecutive 

weeks during the summer for a vacation, and half of all major hol-
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Opinion of the Court

4

idays and I.J.‘s birthdays. In evaluating the basis for this request, 

the grandparents‘ expert, Dr. Heather Walker, observed I.J.‘s interactions with her grandparents to assess whether (a) they were 

―fit and proper persons to have visitation‖; (b) visitation ―ha[d]

been denied‖ to them; (c) they had ―acted as a grandchild‘s custodian or caregiver‖; (d) visitation was ―in the best interest of the 

grandchild,‖ based on an assessment of the ―nature and extent 

and degree of the child‘s natural attachment to her grandparents,‖ 

how well they interacted with each other, ―the child‘s preferences,‖ and how contact with the grandparents might ―affect the 

child‘s ability to deal with the death and loss of her father.‖ After 

reading some affidavits, spending twenty minutes or so with Sharon, and observing I.J.‘s interactions with her grandparents for 

about an hour, Walker prepared an expert report. She concluded

that I.J. ―should have time with her grandparents‖ for ―her emotional well[-]being and her best interest.‖ 

¶9 A two-day trial was then held on the visitation petition. 

Walker testified that I.J. was perfectly comfortable in the presence 

of her grandparents and that their relationship appeared to be 

―positive.‖ She then began testifying, over Sharon‘s counsel‘s objection, to something nowhere explicitly contained in her report—

that it would be ―harmful‖ to I.J. to have her relationship with her 

grandparents severed or too limited. Specifically, Walker expressed concerns that I.J. not knowing her deceased father‘s parents could potentially be ―harm[ful]‖ to her in that she might 

―overidentify‖ with her deceased father and ―put him on a pedestal‖ and thereby commit the same kinds of life mistakes he had

made because she would not be ―allowed to grieve and realize[] 

that there were good and bad [things] about [her] father.‖ Walker 

further expressed ―concern‖ about I.J. living in Price, Utah, because of its small size and the associated chance that I.J. might run 

into her grandparents. In her view, if that happened and I.J. were 

suddenly ―whisked away,‖ it ―would be kind of strange‖ for her 

because she might remember her grandparents but not understand why she couldn‘t speak with them. She further concluded

that ―[i]t could be kind of [a] potentially . . . huge problem‖ in the 

future when I.J. started school in Price because people at the 

school might know her grandparents (on account of the small 

community) and therefore those people might ―start making 

comments to her,‖ thus resulting in some species of harm. 

¶10 On cross-examination, Sharon‘s counsel challenged the basis of Walker‘s opinions. When asked whether there was ―any re-
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5

search that suggests that a[n] [eighteen-month old] child‘s 

memory of a deceased father . . . has any developmental impact 

on the child‘s ability to grow up and be a well-adjusted human 

being,‖ Walker responded ―no.‖ When asked whether she could 

―conclude that a child has a substantial relationship with a grandparent if it‘s not clear to you whether or not they are attached to 

that grandparent?,‖ Walker responded as follows: ―You can if the 

child is older [than I.J. was]. It‘s probably easier to determine the 

substantiality of the relationship [in that circumstance].‖ But on 

account of I.J.‘s age (being younger than two), Walker simply had 

―to go by what people have said‖ with respect to there being a 

substantial relationship between I.J. and Petitioners. She then admitted twice that she ―could not conclude that there was any attachment between [I.J.] and the [Petitioners].‖ 

¶11 Sharon‘s counsel also questioned Walker‘s conception of 

what counts as ―harm‖ under the statute. When Walker insisted 

that visitation was appropriate because it ―would be in [I.J.‘s] best 

interest,‖ Sharon‘s counsel challenged the basis for any allegation 

of ―harm‖ to I.J. Counsel suggested that Walker‘s testimony was 

really ―dealing more with [her] evaluation of . . . [I.J.‘s] best interests.‖ In response, Walker indicated that was ―correct,‖ but suggested that ―lack of best interest would be harm.‖ Counsel then 

pressed Walker further, asking whether she thought there was 

any ―difference between what‘s in the best interest of a child and 

whether or not something will cause them emotional harm.‖ 

Walker said there was a difference but that ―what is in a child‘s 

best interest would be for them to not have the possibility of emotional harm,‖ and that in her opinion there was such a possibility 

here based on her earlier testimony. Based on her observations, 

Walker recommended one daytime visit per month for somewhere between three to seven hours per visit. And, in Walker‘s 

opinion, overnight visits might be appropriate in a few years. 

¶12 Sharon put on her own expert, Dr. Monica Christy. Christy 

similarly challenged Walker‘s conclusions, testifying that ―there‘s 

no research showing that in a normal grandparent relationship 

there would be harm done to the child if that grandparent was not 

available.‖ She concluded that the only established ―harm‖ that 

would accompany the ―loss of a grandparent‖ relationship would 

be ―[i]f they were the primary caretaker,‖ or played ―a parenttype role‖ in the child‘s life. 

¶13 The court ruled in favor of the grandparents. It found that 

Sharon was ―a very fit, proper, caring mother,‖ but nonetheless 
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Opinion of the Court

6

concluded that the grandparents had rebutted the statutory presumption ―that a parent‘s decision with regard to grandparent 

visitation is in the grandchild‘s best interest.‖ The court further 

concluded that Sharon had ―denied and unreasonably limited‖ 

visitation; the grandparents had a ―substantial relationship with 

[I.J.]‖; the denial of visitation had ―likely caused harm to [I.J.]‖;

and that grandparent visitation was in I.J.‘s ―best interest.‖ The 

court consequently ordered unsupervised visitation every other 

weekend, alternating between overnight visits from Friday to Saturday evenings and eight-hour visits on Saturday afternoons. 

¶14 Sharon subsequently sought to place certain limitations on 

the grandparents‘ visits with I.J. She asked that a member of her

family drop I.J. off (rather than having the grandparents pick her 

up), that they refer to themselves as ―Ellie and Tracy,‖ and that 

they not take I.J. to any fast-food restaurants. In response, the 

grandparents canceled the first planned visit and initiated a contempt proceeding. The district court reserved ruling on the motion but held that the grandparents were entitled to disregard 

some of Sharon‘s restrictions (the requests as to fast-food and 

drop-off). 

¶15 Sharon appealed, challenging the trial court‘s visitation order as an infringement of her fundamental rights as a parent. The 

court of appeals reversed, holding that strict scrutiny applied, that 

there was no compelling interest supporting the visitation award, 

and that the award was not narrowly tailored. Jones v. Jones, 2013 

UT App 174, ¶¶ 24, 32–35, 307 P.3d 598. Specifically, the court of 

appeals reasoned that the government‘s interest in ordering visitation with the grandparents was not compelling because there was 

insufficient compelling evidence that ―Grandparents had a substantial relationship with Child and that Child would be harmed 

by denied visitation.‖ Id. ¶ 32. Further, the court held that the 

court-ordered visitation was not narrowly tailored, even if there 

was a compelling interest, as the ―level of visitation [ordered] . . . . 

is more substantial than the visitation many grandparents enjoy, 

especially those who, like Grandparents here, live in a different 

city from their grandchild.‖ Id. ¶ 35.

¶16 Petitioners sought a writ of certiorari, which we granted.

Our review of the court of appeals‘ decision is de novo. State v. 

Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444. In reviewing the court of 

appeals‘ decision, however, we consider whether it ―accurately 
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reviewed the trial court‘s decision under the appropriate standard 

of review.‖ Id. (internal quotation marks omitted). 

II

¶17 The case before us presents both statutory and constitutional questions. To sustain an order of visitation under Utah 

Code section 30-5-2, the grandparents bore the burden of rebutting a ―presumption that a parent‘s decision with regard to 

grandparent visitation is in the grandchild‘s best interests‖—a 

burden informed by ―factors‖ enumerated in the statute. UTAH 

CODE § 30-5-2(2). Under controlling precedent from the U.S. Supreme Court, any decision to override a parent‘s decision regarding visitation is also subject to scrutiny under the Due Process 

Clause of the Fourteenth Amendment. See Troxel v. Granville, 530 

U.S. 57, 65 (2000). Thus, the grandparents‘ right to visitation in 

this case is sustainable only if the order in question also survives 

under the governing standard of constitutional scrutiny.

¶18 That much is clear. The governing statutory and constitutional standards are less so. The statute enumerates ―factors‖ that 

the court may ―consider[] to be relevant‖ in deciding whether 

grandparents have rebutted the presumption in favor of the parent‘s decision regarding visitation. UTAH CODE 30-5-2(2). But it 

doesn‘t say much more. It doesn‘t tell us how those factors are to 

be balanced or weighted.

¶19 The constitutional standard is even fuzzier. The fuzziness 

stems from the governing decision in Troxel, 530 U.S. at 57. Troxel

recognized a fundamental right of parents to limit grandparent 

visitation. Id. at 72–73. And it struck down a Washington visitation statute on constitutional grounds—as applied in a case in 

which a trial judge‘s ―mere disagreement‖ with the parent‘s determination of the effect of visitation on the child‘s ―best interests‖ 

was deemed sufficient to sustain a grandparent visitation order. 

Id. at 67–69. Yet the plurality opinion in Troxel declined to ―define 

. . . the precise scope of the parental due process right in the visitation context‖ or to articulate the operative standard of scrutiny. Id.

at 73. Instead of prescribing a constitutional standard, the plurality struck down the Washington statute as applied based on a casespecific opposition to the operation of the Washington provision 

in question—expressing concerns as to the ―sweeping breadth‖ of 

a statutory provision that permitted ―any person‖ to be awarded 
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Opinion of the Court

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visitation at ―any time‖ based purely on a ―best interest‖ analysis 

that failed to give any ―special weight‖ to the presumption in favor of a parent‘s assessment of a child‘s welfare. Id. at 61, 69. 

¶20 That decision resolved the constitutional question in Troxel. 

But it yielded little guidance for lower courts going forward. From 

Troxel we know that parents have a fundamental right to make 

decisions about visitation, that their decisions are entitled to ―special weight,‖ and that the presumption in favor of their decisions 

may not be overridden by a ―mere disagreement‖ over a child‘s 

best interests. But we know little more than that. We do not have a 

clear statement of the operative standard of scrutiny—and thus no 

way to know exactly how much ―special weight‖ the parent‘s decision gets or what kind of proof is required to overcome it. See id. 

at 80 (Thomas, J., concurring in the judgment) (identifying this 

concern).

¶21 Case-by-case decisionmaking of this sort is perhaps understandable. In matters as sensitive and difficult as grandparent visitation, the course of case-by-case balancing may seem to represent the course of judicial restraint. In the broad run of cases in the 

lower courts, however, the Troxel approach paves a path for uncertainty. To decide a case like the one pending before us today 

we must identify and apply a standard of scrutiny. 

¶22 We do so in the paragraphs below. First, we conclude that 

the high court‘s recognition of a ―fundamental‖ right of a parent 

to regulate the visitation of a child implies a standard of strict 

scrutiny. That standard, we conclude, requires a party seeking to

override a parent‘s decision on visitation to present concrete proof 

that a visitation order is narrowly tailored to advance a compelling government interest. Second, turning to the district court‘s 

decision under the Utah statute, we find only one interest evaluated by the court that even arguably qualifies as compelling—

proof of ―harm‖ resulting from the loss of a ―substantial relationship‖ with a grandparent, as where the grandparent ―acted as the 

grandchild‘s custodian or caregiver.‖ UTAH CODE § 30-5-2(2)(d). 

We resolve this case based on a failure of proof under this statutory factor. 

¶23 In so doing, we leave for another day the precise content of 

the compelling interest test that governs in this area. We need not 

and do not decide whether the interference with a grandparent‘s 
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9

―custodian or caregiver‖ relationship would be enough to sustain 

a visitation order under the standard of strict scrutiny. Instead we 

simply find a lack of record support for the statutory harm asserted by the grandparents and accepted by the district court in this

case (leaving for a future case the question whether such harm 

would be sufficient as a matter of strict scrutiny).2

A

¶24 The courts that have confronted the question of the standard of scrutiny under Troxel have charted a range of courses. Most 

have adopted a standard of strict scrutiny, or at least a requirement of proof of substantial ―harm‖ as a prerequisite to an award 

of third-party visitation.3 But others have applied a somewhat 

 

2 In affirming the judgment of the court of appeals—and vacating the visitation order—on this basis, we do not reach the question of narrow tailoring. Thus, we do not consider the question 

whether the visitation order in question may also fall short on the 

ground that it was more extensive than necessary to protect any 

compelling governmental interest. Jones v. Jones, 2013 UT App 174, 

¶¶ 34–35. The court of appeals thought so because the time for 

ordered visitation was ―more substantial than the visitation many 

grandparents enjoy, especially those who, like Grandparents here, 

live in a different city from their grandchild.‖ Id. ¶ 35. That may or 

may not be the right yardstick for measuring narrow tailoring. At 

least arguably, there could be a case in which the most narrow basis for avoiding substantial harm to a child would be to award visitation greater than that available to ―many grandparents.‖ We do 

not reach that question, however, as we resolve the case on different grounds.

3 See Ex parte E.R.G., 73 So. 3d 634, 645–46 (Ala. 2011); Linder v. 

Linder, 72 S.W.3d 841, 855 (Ark. 2002); Roth v. Weston, 789 A.2d 

431, 441–42 (Conn. 2002); Doe v. Doe, 172 P.3d 1067, 1077 (Haw. 

2007); Lulay v. Lulay, 739 N.E.2d 521, 532 (Ill. 2000); In re Marriage 

of Howard, 661 N.W.2d 183, 188–89 (Iowa 2003); Koshko v. Haining, 

921 A.2d 171, 187, 191 (Md. 2007); Blixt v. Blixt, 774 N.E.2d 1052, 

1059 (Mass. 2002); SooHoo v. Johnson, 731 N.W.2d 815, 821 (Minn. 

2007); Moriarty v. Bradt, 827 A.2d 203, 222 (N.J. 2003); Hiller v. 

Fausey, 904 A.2d 875, 885 (Pa. 2006); Smallwood v. Mann, 205 

S.W.3d 358, 362 (Tenn. 2006); Glidden v. Conley, 820 A.2d 197, 205 

(continued . . .)
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looser standard, opening the door to more discretionary balancing 

by the court.4

¶25 Uncertainty in the operative constitutional standard is 

troubling. The stakes are high in a matter of rights of visitation. 

We owe it to the parties to identify the operative standard of scrutiny. Anything less leaves the appearance of case-by-case policymaking. We therefore confront the question that the high court 

has left unresolved. 

¶26 We start with the threshold premise that the court has established—that a parent‘s right to decide who has a right of visitation with her child is ―fundamental‖ under the Due Process 

Clause. Troxel, 530 U.S. at 66. That premise is dispositive. When 

the court has recognized a due process right it deems ―fundamental,‖ it consistently has applied a standard of strict scrutiny to the 

protection of such a right.5

 

(Vt. 2003); In re Parentage of C.A.M.A., 109 P.3d 405, 410 (Wash. 

2005).

4 See Crafton v. Gibson, 752 N.E.2d 78, 91–92 (Ind. Ct. App. 2001) 

(using rational basis test); W. Va. ex rel. Brandon L. v. Moats, 551 

S.E.2d 674, 684–85 (W. Va. 2001) (using various factors to weigh 

best interest of the child against whether there is substantial interference with parental rights).

5 See, e.g., Lawrence v. Texas, 539 U.S. 558, 593 (2003) (―Our opinions applying the doctrine known as  ̳substantive due process‘ 

hold that the Due Process Clause prohibits States from infringing 

fundamental liberty interests, unless the infringement is narrowly 

tailored to serve a compelling state interest.‖); Reno v. Flores, 507 

U.S. 292, 301–02 (1993) (―[A]  ̳substantive due process‘ claim relies 

upon our line of cases which interprets the Fifth and Fourteenth 

Amendments‘ guarantee of  ̳due process of law‘ to include a substantive component, which forbids the government to infringe 

certain  ̳fundamental‘ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to 

serve a compelling state interest.‖ (emphasis omitted)); ERWIN 

CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 

10.1 (4th ed. 2011) (―The Supreme Court has held that some liberties are so important that they are deemed to be  ̳fundamental 

(continued . . .)
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¶27 The strict scrutiny standard is a stiff one. Under this standard, a fundamental right is protected except in the limited circumstance in which an infringement of it is shown to be ―narrowly 

tailored‖ to protect a ―compelling governmental interest.‖6

¶28 This is not the only standard that conceivably could apply. 

In a few instances the high court has invoked sui generis standards 

of scrutiny in cases involving rights it deems ―fundamental‖ (but 

nonetheless subject to some lower level of protection).

7

¶29 Perhaps the high court, in time, will embrace some sort of 

intermediate standard of scrutiny for child visitation cases. But 

the enterprise of so doing—of abandoning the usual standard for 

a lesser one that balances the relevant interests in a new way—is 

an uncomfortable venture for a lower court. Such a venture seems 

more an act of policymaking than of application of controlling 

law. So, unless and until the United States Supreme Court prescribes a different standard in this field, we are left to view its determination of a fundamental parental right of control over visitation as the prescription of the standard of strict scrutiny.8

 

rights‘ and that generally the government cannot infringe upon 

them unless strict scrutiny is met.‖).

6 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (articulating 

this standard for fundamental rights under the Due Process 

Clause); Reno, 507 U.S. at 302 (same).

7 E.g., Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 874

(1992) (adopting ―undue burden‖ test for assessment of infringement of fundamental right of abortion); Crawford v. Marion Cty.

Election Bd., 553 U.S. 181, 189–90 (2008) (applying a ―balancing 

approach‖ for assessment of infringement of fundamental right to 

vote); Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (alluding to ―the 

fundamental character of the right to marry‖ while suggesting 

that ―reasonable regulations that do not significantly interfere 

with decisions to enter into the marital relationship may legitimately be imposed‖).

8 Such a determination is not, as the grandparents in this case 

argue, foreclosed by our precedent. Our lone decision in the wake 

of the Troxel decision is Uzelac v. Thurgood, 2006 UT 46, 144 P.3d 

1083. Uzelac upheld a grandparent visitation order over a constitu-

(continued . . .)
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Opinion of the Court

12

¶30 That leaves the matter of defining the interests that are sufficiently ―compelling‖ to satisfy strict scrutiny in this field. Although Troxel itself does not answer that question, other opinions 

of the court in this area provide helpful guidance. To sustain an 

incursion on a fundamental right of a parent, the U.S. Supreme 

Court has required proof that substantial harm to a child is at 

stake. See, e.g., Parham v. J.R., 442 U.S. 584, 602–03 (1979); Prince v. 

Massachusetts, 321 U.S. 158, 166–67 (1944).

¶31 The court‘s cases do not give an exhaustive list of harms 

that may qualify, but the examples in its cases suggest that the bar 

is a high one. The state may override a parent‘s right to direct the 

upbringing of a child, for example, in a case involving proof of 

―child neglect and abuse,‖ where the child‘s ―physical or mental 

health is jeopardized,‖ Parham, 442 U.S. at 602–03, or where a parent is ―unfit‖ in a manner causing a potential ―harm[]‖ to the 

child, Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and 

Mary, 268 U.S. 510, 534 (1925).

9

 

tional challenge asserted by a parent. And, as the grandparents in 

this case note, the Uzelac decision did so without embracing a 

standard of strict scrutiny (or any other standard). Instead, we 

upheld the order in question based on our sense of the facts of the 

case—that the grandmother had taken ―care of the child on a daily 

basis throughout most of the child‘s first four years of life,‖ and 

that expert testimony established that ―the loss of contact with the 

[grandparents]‖ would have been ―devastating and cause[d] the 

child to suffer.‖ Id. ¶ 42. 

9 See also Santosky v. Kramer, 455 U.S. 745, 767 & n.17 (1982) 

(state‘s parens patriae power of termination ―arises only at the dispositional phase, after the parents have been found unfit‖); Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (requiring proof of ―harm 

to the physical or mental health of the child‖ to sustain a state law 

compelling high school attendance over the religious objections of 

parents); Stanley v. Illinois, 405 U.S. 645, 652 (1972) (agreeing that

―neglectful parents may be separated from their children‖); Prince 

v. Massachusetts, 321 U.S. 158, 166–67 (1944) (noting there is a 

―private realm of family life which the state cannot enter . . . . [but 

that parental rights] do[] not include liberty to expose . . . . the 

child to communicable disease or . . . . to ill health or death‖);

(continued . . .)
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¶32 The foregoing shows that the state interest in overriding a 

parent‘s fundamental rights is ―compelling‖ only in circumstances 

involving the avoidance of harm that is substantial.

10 But it hardly 

paints a bright line of the standard of substantiality. We know 

from Troxel that a mere conclusion that a child‘s ―best interests‖ 

may be advanced by an award of visitation is insufficient. 530 U.S. 

at 67. Beyond that, however, it is difficult to do more than to say 

that proof of substantial harm is required.

 

Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (holding that the targeted evil of the statute—children being taught a modern foreign 

language—―is not injurious to the health, morals or understanding of the ordinary child . . . . [and that] [n]o emergency has arisen . . . . so clearly harmful as to justify its inhibition with the consequent infringement of [parental and constitutional] rights long 

freely enjoyed‖).

10 Other courts have reached similar conclusions. See Oliver v. 

Feldner, 776 N.E.2d 499, 507 (Ohio Ct. App. 2002) (―It is clear from 

Troxel that a strict-scrutiny analysis must be applied to both the 

nonparental-visitation statute and to the method in which the 

statute is applied . . . .‖); Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 

2001) (observing that ―the [Troxel] Court left no doubt about the 

status of parents‘ interest in the care, custody and control of their 

children,‖ and holding that the recognition of a fundamental right 

triggered strict scrutiny analysis); Hiller v. Fausey, 904 A.2d 875, 

885 (Pa. 2006) (concluding that strict scrutiny applied despite the 

fact that ―the United States Supreme Court declined in Troxel to 

articulate a standard of review regarding infringements of this 

fundamental right‖); Roth v. Weston, 789 A.2d 431, 441 (Conn. 

2002) (―[C]onsistent with the [Troxel] court‘s determination that a 

parent‘s interest in the care, custody and control over his or her 

children is  ̳perhaps one of the oldest of the fundamental liberty 

interests recognized by [the] Court[,]‘ the application of the strict 

scrutiny test is required to any infringement it may suffer.‖ (alteration in original)); see also Rideout v. Riendeau, 761 A.2d 291, 300, 

303 (Me. 2000) (upholding state‘s grandparent visitation statute 

under Troxel after applying strict scrutiny); Harrold v. Collier, 836 

N.E.2d 1165, 1171–73 (Ohio 2005) (same).
JONES v. JONES

Opinion of the Court

14

¶33 We so hold. But in so doing we stop short of attempting to 

define the compelling interest line with greater precision. Instead 

we avoid that question on the statutory grounds applied below: 

We find only one basis in the statutory standard invoked by the 

district court that could even arguably qualify as establishing any 

substantial harm, and, absent evidence to support a showing of 

such harm in this case, we affirm the court of appeals‘ decision 

vacating the visitation order entered in this case.

B

¶34 Utah Code section 30-5-2 prescribes a presumption in favor 

of parents‘ decisions regarding visitation. Consistent with the 

Troxel decision, the statute requires a grandparent seeking visitation to rebut a ―presumption that a parent‘s decision with regard 

to grandparent visitation is in the grandchild‘s best interests.‖ 

UTAH CODE § 30-5-2(2). Beyond that, the statute gives little guidance as to the basis for rebutting the presumption. It directs only 

that the court may grant ―reasonable rights of visitation‖ to 

grandparents if it ―finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant.‖ Id. Then, without indicating how the listed factors are to be 

balanced or weighted, the statute prescribes a list of potentially 

relevant considerations—

whether: (a) the petitioner is a fit and proper person to 

have visitation with the grandchild; (b) visitation 

with the grandchild has been denied or unreasonably limited; (c) the parent is unfit or incompetent; (d) 

the petitioner has acted as the grandchild‘s custodian or caregiver, or otherwise has had a substantial 

relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to 

the grandchild; (e) the petitioner‘s child, who is a 

parent of the grandchild, has died, or has become a 

noncustodial parent through divorce or legal separation; (f) the petitioner‘s child, who is a parent of the 

grandchild, has been missing for an extended period 

of time; or (g) visitation is in the best interest of the 

grandchild. Id.

¶35 In the trial proceedings leading to the visitation order in 

this case, the parties and the court focused on these statutory fac-
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Opinion of the Court

15

tors.11 The grandparents presented evidence under several of the 

factors, and the district court‘s findings were guided by them. Ultimately, the basis of the visitation order was that the grandparents had rebutted the presumption ―that a parent‘s decision with 

regard to grandparent visitation is in the grandchild‘s best interest.‖ The decision was based on the following findings: Sharon 

had ―denied and unreasonably limited‖ visitation with the 

grandparents; the grandparents had a ―substantial relationship 

with [I.J.] until the denial of visitation, and the denial has likely 

caused harm‖ to I.J.; and visitation was in I.J.‘s ―best interest.‖ 

¶36 Our review of the basis for this decision must be informed 

by the above-noted constitutional limitations. To withstand strict 

scrutiny, a grandparent visitation order must be narrowly tailored 

to advance a compelling governmental interest, or in other words 

to protect against substantial harm to the child. The only harm 

mentioned expressly by statute—or considered expressly by the 

parties or the district court—is the interference with a ―substantial 

relationship‖ between I.J. and her grandparents.12 Even assuming 

 

11 That approach was not mandated by statute, and it may not 

be advisable in future proceedings in light of the standard of strict 

scrutiny that applies under the Due Process Clause. The statutory 

list is exemplary, not exclusive. And under the Constitution, the 

compelling governmental interest test requires proof of substantial harm to the child that would ensue absent a visitation order. 

So a grandparent seeking a visitation order over a parent‘s wishes 

would be advised to focus on establishing substantial harm—e.g., 

a real risk of injury to the child‘s mental health—in a manner supported by competent medical evidence. Proof of loss of a ―substantial relationship‖ like that of a ―custodian or caregiver‖ might 

be supportive of such proof. But in light of the strict scrutiny 

standard governing in this field, additional proof might well be 

advisable.

12 The statute also recognizes another potential harm implicitly—in noting the potential relevance of a finding that the parent is 

―unfit or incompetent.‖ UTAH CODE § 30-5-2(2)(c). A finding of unfitness or incompetence could quite likely sustain a compelling 

basis for a grandparent visitation order. See Stanley v. Illinois, 405 

U.S. 645, 649 (1972) (accepting that the state could deprive an unfit 

(continued . . .)
JONES v. JONES

Opinion of the Court

16

for the sake of argument (and without resolving the matter conclusively) that the loss of a ―custodian or caregiver‖ relationship 

would be enough to show substantial harm, however, there was 

insufficient evidence of such a relationship in this case. We affirm 

the court of appeals‘ vacatur of the visitation order on that basis.

¶37 The statutory ―harm‖ that was the focus of the proceedings 

below concerned the loss of a ―substantial relationship‖ of a specific sort—that of a ―custodian or caregiver,‖ or something along 

those lines. UTAH CODE § 30-5-2(2)(d). This limitation is important. 

In a very real sense, all grandparental relationships are ―substantial.‖ The cross-generational connection of a child to her grandparents is of unquestioned value and significance. But under 

Troxel, and particularly under the strict scrutiny standard that that 

decision seems to require, the mere (but unquestioned) significance of the grandparental relationship cannot be enough to override a parent‘s fundamental right to raise a child as she sees fit. 

Nor can a vague sense that the child would be better off with 

grandparents in her life. See Troxel, 530 U.S. at 67. Grandparent 

visitation orders must be limited to the exceptional case where the 

failure to override the parent‘s wishes would cause substantial 

harm to the child.

¶38 The exceptional case identified by statute (which we presume without deciding may be enough to satisfy strict scrutiny) is 

the case where the grandparents‘ role is akin to that of a parent—

where the grandparent has filled the role of ―custodian or caregiver‖ or something similar. No such proof was presented here.

¶39 By all accounts, the relationship between I.J. and her 

grandparents was a warm, healthy, loving one. And, as the 

grandparents‘ expert testified, there is reason to believe that ―[t]he 

more time this child spends with her grandparents and paternal 

relatives, the better off she will be in terms of knowing and understanding that many people love her.‖ But again a mere ―best interests‖ determination is insufficient to override a fundamental 

parental right. And the mere existence of a healthy, loving grand-

 

father of his parental rights, but requiring first that he be granted 

a hearing on his fitness before such action). But this factor was not 

implicated here, as the court found Sharon to be a ―very fit, proper, caring mother.‖ 
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Opinion of the Court

17

parental relationship falls short. By statute, the kind of ―substantial relationship‖ that can sustain proof of ―harm‖ to the child is 

that of a ―custodian or caregiver‖ or the like.

¶40 The operative statutory provision encompasses not only 

those who ―acted as the grandchild‘s custodian or caregiver,‖ but 

also grandparents who ―otherwise . . . had a substantial relationship with the grandchild.‖ UTAH CODE § 30-5-2(2)(d) (emphasis 

added). Not every grandparental relationship counts as ―substantial‖ under this provision, however. Under the ejusdem generis 

canon of construction, and in light of the doctrine of constitutional 

avoidance, we give a limiting construction to this provision. 13 We 

limit the ―other[]‖ ―substantial relationship[s]‖ encompassed by 

the cited provision to those that are comparable to a ―custodian or 

caregiver‖ relationship. 

¶41 The record cannot sustain a determination that the grandparents had that kind of relationship with I.J. This is not a case 

like Uzelac v. Thurgood, where the grandmother ―took care of the 

child on a daily basis throughout most of the child‘s first four 

years of life,‖ such that she had an ―emotional attachment . . . as 

strong as [that] seen between parents and children‖ and the ―loss 

of contact‖ would have been ―devastating and caused the child to 

suffer.‖ 2006 UT 46, ¶ 42 (alteration in original). Instead, the record in this case shows that the grandparents helped to care for I.J. 

for three or four days a week over a six-week period in early 2009, 

when I.J. was not yet eighteen-months old. During that time, 

 

13 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE 

INTERPRETATION OF LEGAL TEXTS 199 (2012) (―Where general words 

follow an enumeration of two or more things, they apply only to 

persons or things of the same general kind or class specifically 

mentioned.‖); State ex rel. A.T. v. A.T., 2001 UT 82, ¶ 12, 34 P.3d 

228 (―The doctrine of ejusdem generis applies in instances where an 

inexhaustive enumeration of particular or specific terms is followed by a general term or terms that suggest a class. The doctrine declares that in order to give meaning to the general term, 

the general term is understood as restricted to include things of 

the same kind, class, character, or nature as those specifically 

enumerated, unless there is something to show a contrary intent.‖).
JONES v. JONES

Opinion of the Court

18

moreover, the grandparents were not the child‘s legal guardian or 

custodian. Her father, Tracy Jr., was the child‘s custodian, and he 

was living in the same household during that time. Throughout 

this six-week period, it appears that all three individuals—Tracy 

Jr. and his parents (I.J.‘s grandparents)—shared in the responsibility of caring for I.J. The grandparents, after all, both worked full 

time, and Tracy Jr. was living in the home. 

¶42 Given the nature of the grandparents‘ role and the short 

span of their involvement in I.J.‘s day-to-day care, there is no basis 

for finding that they had a substantial ―custodian or caregiver‖ 

type of relationship with their grandchild. This is reflected, in 

part, in the expert testimony. The grandparents‘ expert opined 

that the relationship was ―positive‖ but stated that she ―could not 

conclude that there was any attachment‖ between I.J. and her 

grandparents. The district court, moreover, never found that there 

was a ―custodian or caregiver‖ type of relationship with I.J. It held 

only that the relationship was ―substantial,‖ in some vague sense, 

and that the cessation of such relationship ―likely caused‖ some 

unidentifiable ―harm‖ to the child. That is insufficient. 

¶43 The evidence at trial did include some vague references to 

―harm‖ identified by the grandparents‘ expert. But the expert‘s 

testimony, for the most part, seemed to equate ―harm‖ with any 

decision that is not in the child‘s best interest. And to the extent 

the expert alluded to the possibility of harm in the form of ―developmental impact on the child‘s ability to grow up and be a 

well-adjusted human being,‖ she conceded that there was no concrete basis or ―research‖ to support that conclusion. Most important, moreover, is the fact that the district judge never found 

any harm of this sort. She simply found that the loss of the kind of 

(non-caregiver) relationship the grandparents had with I.J. ―likely 

caused‖ harm—presumably in the same sense in which any child 

would be harmed by the loss of such a relationship.

¶44 That is insufficient under the statute, as informed by the 

standard of strict scrutiny. A grandparent visitation order requires proof of a potential for substantial harm to the child, and 

by statute the only harm that is implicated here is the loss of a 

substantial relationship like that of a custodian or caregiver. Absent such proof, we hold that the grandparents in this case failed 

to carry their burden of showing that a visitation order was necessary to prevent substantial harm to the child.
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Opinion of the Court

19

III

¶45 Family connections are fundamental stitches in the fabric of 

our society. It is hard to fault the grandparents in this case for 

seeking to preserve their relationship with their granddaughter. 

And we can understand the district judge‘s apparent interest in 

preserving a need for these grandparents to have a meaningful 

relationship with I.J. That is a laudable goal. As compassionate 

human beings we can hope that all grandparental relationships 

will be healthy, meaningful, and respected.

¶46 But court-ordered relationships are another matter. In this 

sensitive field the United States Supreme Court has recognized a 

fundamental right of parents to control the upbringing of their 

children. That means that parents, as a general rule, have the final 

say in who has a right to interact with their children on a regular 

basis. The rule is subject to an exception, but the exception was 

not met on this record. Thus, while we can hope that I.J. may one 

day develop a relationship with her grandparents, we cannot sustain an order requiring that outcome.

¶47 The judgment of the court of appeals is affirmed and the 

district court‘s visitation order is vacated. The court of appeals‘ 

opinion is vacated, however, as to its analysis of narrow tailoring.

See supra ¶ 23 n.2. We remand for any further proceedings not inconsistent with this opinion.