DA 14-0405

IN THE SUPREME COURT OF THE STATE OF MONTANA

2015 MT 107

GEORGE THAYER GLUECKERT, SR.,

and LAURA JEANNE GLUECKERT,

 Petitioners and Appellants,

 v.

KRISTIN GLUECKERT,

 Respondent and Appellee.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. CDR 2013-702

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Robyn L. Weber, Attorney at Law, Helena, Montana

For Appellee:

Katharine Donnelley, Attorney at Law, Helena, Montana

Submitted on Briefs: March 4, 2015

 Decided: April 17, 2015

Filed:

__________________________________________

Clerk

April 17 2015

Case Number: DA 14-0405
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 George and Laura Glueckert (Glueckerts) appeal from the District Court’s 

Findings of Fact, Conclusions of Law and Order, filed October 7, 2014. We affirm.

¶2 We restate the issue on appeal as whether the District Court properly applied 

§ 40-9-102, MCA, in denying the Glueckerts’ petition for extended contact with their 

grandson. 

BACKGROUND

¶3 The Glueckerts’ son Thayer was married to the respondent Kristin Glueckert. 

Thayer and Kristin had a son, M.T., who is the Glueckerts’ grandson. At the time the 

petition was filed in November 2013, Thayer was serving on active duty in the military 

and was stationed outside of Montana. Thayer and Kristin had separated but the divorce 

was not completed and there was no parenting plan in place. M.T. has lived with his 

mother Kristin since his birth in April 2013 and Thayer has only had physical contact 

with him when home on leave.

¶4 The Glueckerts sought to negotiate with Kristin for regular visitation with their 

grandson. Kristin agreed to contact and on a number of occasions provided a one-hour 

visit in her residence with her present, but she would generally not allow the Glueckerts 

to have unsupervised visits with M.T. Most of their unsupervised visits with M.T. 

outside of Kristin’s home have occurred when Thayer is home on leave.

¶5 The Glueckerts’ petition under § 40-9-102, MCA, sought four three-hour 

unsupervised visits per week with M.T., and additional unsupervised visits on special 
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occasions during the year. Kristin objected to any additional visitation beyond the 

contact she had provided, and objected to any unsupervised visitation. Kristin does not 

agree with the Glueckerts on subjects that are important to her, such as corporal 

punishment, views on homosexuality and the way they treat other family members. She 

and the Glueckerts do not have a good relationship, and the relationship is more strained 

because of the dispute over visitation. 

¶6 At the time of the District Court’s decision Kristin was planning to move to Idaho 

to complete training in radiography. She was willing to allow the Glueckerts to come to 

Idaho to visit M.T. in supervised sessions.

¶7 In May 2014 the District Court held a hearing on the merits of the petition, and 

subsequently granted Kristin’s motion for summary judgment. The District Court found 

that since Kristin allows visits with M.T., the issue was whether visitation should be 

regular and unsupervised. The District Court found that Kristin is a fit parent and that the 

Glueckerts are capable loving grandparents who are able to meet M.T.’s needs. The 

District Court found that the Glueckerts have a ‘well-reasoned and sensible” position that 

they want to enhance their bond with M.T., but that the clear and convincing evidence 

required by § 40-9-102, MCA, requires “substantially more” to overcome the statutory 

presumption in favor of supporting the wishes of a fit parent. The District Court denied 

the petition for additional contact and the Glueckerts appeal. 

STANDARD OF REVIEW

¶8 A district court’s interpretation of a statute is a conclusion of law which we review 

for correctness. Montana State Fund v. Simms, 2012 MT 22, ¶ 15, 364 Mont. 14, 270 
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P.3d 64. We review a district court’s findings of fact to determine whether they are 

clearly erroneous. Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 20, 317 Mont. 236, 

77 P.3d 175. This Court reviews a district court’s decision on summary judgment to 

determine whether it is correct, using the same criteria under Rule 56, M. R. Civ. P. 

Pilgeram v. GreenPoint Mortgage, 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839.

DISCUSSION

¶9 Issue: Whether the District Court properly applied § 40-9-102, MCA, in denying 

the Glueckerts’ petition for extended contact with their grandson.

¶10 The Legislature has adopted statutes providing for grandparent-grandchild contact, 

§§ 40-9-101 to -103, MCA. This Court recently summarized application of those 

provisions:

The Court is required to make a determination as to whether the objecting 

parent is a fit parent, that is, whether the parent adequately cares for the 

child. Section 40-9-102(2), MCA. Contact may be granted over a fit 

parent’s objections if clear and convincing evidence establishes that the 

contact would be in the best interest of the child and the presumption in 

favor of the parent’s wishes has been rebutted. 

In re Gardner v. Gardner, 2014 MT 290, ¶ 12, 376 Mont. 540, 337 P.3d 751, citing 

§ 40-9-102(4), MCA, and Polasek v. Omura, 2006 MT 103, ¶ 15, 332 Mont. 157, 136 

P.3d 519. If a fit parent objects to any aspect of the contact sought by the grandparents, 

there is a presumption in favor of complying with the parent’s wishes and the 

grandparents have the burden to supply evidence to overcome that presumption. 

Gardner, ¶ 19; Polasek, ¶ 15. Clear and convincing evidence is more than a mere 

preponderance of the evidence, and requires evidence that is definite, clear and 
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convincing. It does not mean unanswerable or conclusive evidence or evidence beyond a 

reasonable doubt. Thibodeau v. Bechtold, 2008 MT 412, ¶ 23, 347 Mont. 277, 198 P.3d 

785. 

¶11 A parent retains a fundamental right to make decisions concerning her child’s 

care, custody and control. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 

(2000); In re Snyder v. Spalding, 2010 MT 151, ¶ 19, 357 Mont. 34, 235 P.3d 578. The 

best interest of the child remains intact as the standard by which a grandparent’s request 

for contact must be judged. Snyder, ¶ 17. 

¶12 On appeal Kristin argues that she allowed only the limited visits because of her 

knowledge of the Glueckerts’ “actions and beliefs” and her determination that limiting 

contact is in the best interest of her child. She points to George’s expressed belief that all 

homosexuals would go to hell; to George’s calling members of his wife’s family fat and 

lazy; and to the way both Glueckerts gossiped about others. She is concerned that the 

Glueckerts would disparage her and her family to M.T. if they were alone with him, and

she is concerned about their beliefs on corporal punishment. Kristin felt she was

betrayed by Laura during a fight Kristin had with Thayer during one of his visits to 

Helena. Kristin points out that she has limited resources and that responding to the 

Glueckerts’ petition has been financially and emotionally difficult for her. Kristin points 

out that she continued to offer visits with M.T. at her residence, even after the Glueckerts 

filed the petition, and that she would allow supervised visits if she moved to Idaho. 

Kristin states that she believes that it is important for M.T. to have a relationship with his 

grandparents but that her restrictions are in his best interest. 
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¶13 The Glueckerts acknowledge that Kristin is a fit parent and that she allowed them 

to have contact with M.T. They assert that the crux of the issue on appeal is the nature 

and extent of their contact with M.T., and whether the District Court properly considered 

the best interest of the child. They contend that Kristin’s stated reasons for limiting their 

contact to supervised visits were frivolous and inconsistent and that the limited visits that 

Kristin allowed were tense and strained because Kristin insisted on watching,** They 

argue that the District Court failed to follow the statute because it did not expressly 

determine what was in the best interest of M.T. The Glueckerts also acknowledge that 

“soon” there will be a parenting plan in place for M.T. as between Kristin and Thayer, 

and that they will “undoubtedly” share additional unsupervised visitation with M.T. 

during Thayer’s parenting times. 

¶14 To establish a statutory right to “reasonable” contact, § 40-9-102(1), MCA, 

grandparents must overcome the express preference in favor of a fit parent’s wishes by 

clear and convincing evidence showing that what they want is in the best interest of the 

child. In re Gardner, ¶ 12. Here the District Court found that the Glueckerts had not met 

the standard necessary to overcome the preference for Kristin’s wishes. Kristin had 

accommodated visits, but on her terms. The Glueckerts do not like the contact that 

Kristin allowed, and they do not respect Kristin’s stated reasons for limiting their contact 

with M.T. However, Kristin has a “fundamental liberty interest” to make decisions 

concerning the care and custody of her child. Snyder, ¶ 13. There is a presumption in 

Montana law that Kristin’s wishes, as a fit parent, should be respected. Section 

40-9-102(4), MCA; Gardner, ¶ 12. There is a requirement that only a showing meeting 
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the standard of clear and convincing evidence can overcome the presumption in favor of 

the wishes of a fit parent. Section 40-9-102(3), MCA. 

¶15 The District Court held the hearing, received the testimony, observed the 

witnesses, and is in the best position to weigh the evidence. The Glueckerts contend that 

the District Court failed to comply with § 40-9-102(4), MCA, by not providing an 

express analysis of the best interest of the child. However, it is clear that the District 

Court knew and quoted the proper statutory standard. Before the Glueckerts would be 

entitled to extended contact under the statute, they were required to show that contact 

would be in the best interest of the child and that the presumption in favor of Kristin’s 

wishes was overcome by clear and convincing evidence. Section 40-9-102(4), MCA. 

The District Court determined that they failed to overcome the presumption in favor of 

the fit parent, so no further analysis was required. Gardner, ¶ 12. The District Court’s 

findings on the evidence were not clearly erroneous.

¶16 While the District Court did not engage in a separate analysis of the best interest 

of M.T., the Glueckerts did not show, by clear and convincing evidence, that their goal of 

maintaining a bond between MT. and their side of the family with more unsupervised 

visits will materially suffer without the greatly expanded visitation they desire.1 The 

statute requires that grandparents must demonstrate what is in the best interest of the 

child and must provide clear and convincing evidence to rebut the presumption in favor 

of the fit parent. This Court does not disagree with the District Court’s conclusion that 

 

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In addition, the Glueckerts acknowledge that they fully expect to have greatly increased 

unsupervised contact with M.T., after Thayer finishes his enlistment with the military.
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they had not produced clear and convincing evidence that there should be a different 

result.

¶17 Given our disposition of this case, it is unnecessary to address Glueckerts’ 

argument concerning setting a specific visitation schedule.

¶18 The District Court is affirmed.

/S/ MIKE McGRATH

We Concur:

/S/ PATRICIA COTTER

/S/ LAURIE McKINNON

/S/ MICHAEL E WHEAT

Justice Jim Rice, concurring in part and dissenting in part. 

¶19 I believe the Court has properly answered the issues raised by the Glueckerts 

regarding the interpretation of the grandparent visitation statute, but I disagree with the 

application of the statute to the evidence in this case.

¶20 The District Court’s order did not provide an analysis of the child’s best interest, 

but that would be reversible error only if it had first concluded that the presumption in 

favor of Kristin’s wishes, as a fit parent, had been overcome by the evidence. See In re 

Gardner, ¶ 12 (“Contact may be granted over a fit parent’s objections, if clear and 

convincing evidence establishes that the contact would be in the best interest of the child 

and the presumption in favor of the parent’s wishes has been rebutted.”). The Court here 

explains In re Gardner clarified that “any aspect of the contact sought by the 

grandparents” must be tested against both the presumption in favor of a fit parent’s 
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wishes and then the best interests of the child. Opinion, ¶ 10 (emphasis added). Thus, it 

would be unnecessary for a district court to analyze the best interest issue if it concluded 

that the presumption in favor of the fit parent had not been overcome. Opinion, ¶ 16.

¶21 The District Court found that the Glueckerts have had a long term, positive 

relationship with M.T., and that they “are capable, loving grandparents.” They reside in a 

“well-kept three-bedroom home and have the ability to meet M.T.G.’s needs.” The court 

concluded that, to the extent the Glueckerts want to have “regular, unsupervised contact 

with M.T.G. to enhance their bond with the child[,] [t]heir position is well-reasoned and 

sensible.” The court also found that, while the Glueckerts exercise unsupervised contact 

with M.T. while Thayer is home on leave, Kristin forbids such contact when Thayer is 

away on military service. In fact, the Glueckerts have been subjected to periods without 

any visitation at all with M.T.

¶22 If these findings are insufficient by themselves to rebut the presumption in favor 

of Kristin’s desire that no unsupervised contact between Glueckerts and M.T. be 

permitted, then Kristin’s own testimony provided the remaining clear and convincing 

evidence to do so, in my view. When asked under cross examination if M.T.’s visits with 

Glueckerts, as limited and supervised by Kristin and admittedly strained by the logistics 

she imposed, were in M.T.’s best interests, Kristin answered “Maybe not right now,” 

thereby acknowledging that such arrangements were not in M.T.’s best interest. When 

asked how such visits could be good for M.T., Kristin’s answer was “Well, that’s my

right.” I would conclude on this record that the presumption in favor of Kristin’s wishes 
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was overcome by the totality of the evidence—a conclusion that Kristin’s testimony 

virtually acknowledges.

¶23 That is not to say that the specific relief sought by the Glueckerts should be 

granted. Their request for multiple, multi-hour weekly unsupervised visits with M.T. 

may well be overreaching. However, my point is that, because I believe the Glueckerts 

rebutted the presumption by clear and convincing evidence, they were entitled to have the 

visitation issue subjected to a best interest determination by the District Court that would 

have set an appropriate schedule. The District Court reasoned that “[i]t is not the role of 

this Court to establish a set visitation schedule for grandparents on the basis that it 

believes regularly scheduled, unsupervised contact would be superior to the contact 

allowed by a fit parent,” but, assuming the presumption is overcome, that is the court’s 

duty. I would remand for consideration of that issue.

/S/ JIM RICE