All the Better To Eat You With, My Dear: The Need for a Heightened Harm Standard in Utah's Grandparent Visitation Statute

I. INTRODUCTION In the classic children's folktale "Little Red Riding Hood,"1 a young girl was deceived by a wolf posing as her grandmother. The child willingly approached the disguised wolf-who ultimately ate her-because she believed the wolf was her grandmother, someone she trusted would never harm her.2 The early proliferation and popularity of grandparent visitation statutes was premised on a similar assumption: court-ordered grandparent visitation would never harm grandchildren.3 Experience has shown, however, that court-ordered grandparent visitation against the parent's wishes may be like a wolf in disguise because such visitation is sometimes the product of petitions by grandparents willing to act in ways that harm their grandchildren and because court-ordered visitation may be ultimately harmful even to children ordered to visit with otherwise benevolent grandparents.4 In Utah, there is no common law right of grandparent visitation; however, the Utah legislature has authorized statutory grandparent visitation since 1975.5 Utah's current Grandparent Visitation Statute6 represents a clash between parents, who have a traditionally protected autonomy to make decisions regarding the care, custody, and control of their children, and grandparents, who by political fiat may now enlist the power of the state to override parental autonomy and obtain and enforce court-ordered visitation rights with their grandchildren.7 In the resultant controversy, both parties defend their positions with the ostensible motive of protecting the best interests of the children involved. There is no doubt that out-of-wedlock births, increased divorce rates, and other factors are changing the family structures in which children are raised. This may result in children having, for at least some period of time, meaningful parent-like interactions with extended family members upon which the children come to rely.8 Depending on the circumstances, these relationships may be deserving of court protection. But in other cases, the controversy represents an unwarranted attempt by grandparents to forcibly infringe upon a parent's fundamental right and obligation to direct a child's upbringing, or it represents an intrusion into a purely intra-familial dispute in which courts have historically declined to intervene.9 Because legitimate claims to safeguard children exist alongside spurious demands, a state is at times justified in the exercise of its parens patriae10 power to override grandparent visitation decisions made by parents. However, concerns over the constitutionality of Utah's Grandparent Visitation Statute, both facially and as applied, are also justified because great harm to children and parents may result from abuse of state power where the state's parens patriae interest is not implicated. Since its inception, Utah's Grandparent Visitation Statute has undergone numerous revisions and amendments.11 Although two of the Statute's amendments12 were direct attempts to comply with state and federal constitutional mandates,13 ongoing constitutional controversy has plagued the Statute.14 This is partly due to the United States Supreme Court's splintered opinion in Troxel v. Granville,15 which left substantial leeway to state legislatures to draft grandparent visitation statutes within its constitutional confines. The controversy is also partly due to ongoing social transformation about the definition of "family" and the resulting legislative and judicial uncertainty regarding the amount of protection that should be afforded to meaningful, non-parental relationships with children. The recent Utah Supreme Court decision Uzelac v. Thurgood (In re Estate of S.T.T.)16 affirmed the constitutionality of Utah's current Grandparent Visitation Statute because the Statute complied with the due process requirements mandated in Troxel v. Granvitte.17 Simultaneously, the decision acknowledged that the current statute, although constitutional, is flawed, confusing, and difficult for courts to apply. …