Ross v. Bauman
2015 Alas. LEXIS 83
| Alaska | 2015Background
- Grandparent Carl petitions for visitation with his grandchildren after they move to Washington.
- Parents Stefanie and John concede visitation is in the children’s best interests but oppose court-ordered visitation on constitutional grounds.
- Superior Court appoints a visitation order granting some visitation but restricting contact with Simone and her daughter; order is later vacated.
- Alaska Supreme Court vacates the visitation order and dismisses the petition as the record shows no constitutionally permissible basis for a grandparent visitation order.
- Court analyzes whether AS 25.20.065 is constitutional as applied and the proper standard for third-party visitation under Evans, Hawkins, Troxel, and related Alaska cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality as applied of AS 25.20.065 | Stefanie/John argue statute unconstitutional as applied. | Carl argues statute facially constitutional and properly narrowly construed. | AS 25.20.065 unconstitutional as applied; petition dismissed. |
| Correct legal standard for third-party visitation | Parents urge heightened standard requiring unfitness or unreasonable parental decisions. | Grandparent argues best-interests standard suffices. | Third party must prove by clear and convincing evidence that limiting parental decision is detrimental to the child; mere best-interests is insufficient. |
| Waiver of constitutional challenge | Stefanie/John contended they preserved the constitutional challenge. | Carl contends challenge was waived. | Constitutional challenge not waived; properly raised. |
| Impact of narrow tailoring on constitutionality | Court’s narrow tailoring should cure unconstitutionality. | Narrow tailoring cannot cure constitutional violation. | Narrow tailoring cannot save a constitutionally infirm order; petition dismissed. |
Key Cases Cited
- Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004) (clear-and-convincing burden for third parties to show best interests)
- Hawkins v. Williams, 314 P.3d 1202 (Alaska 2013) (reaffirms burden and parental rights in third-party visitation)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (special weight to fit parent's decisions; due process concerns)
- Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010) (development of Evans framework and standards for third-party visitation)
- J.W. v. R.J., 951 P.2d 1206 (Alaska 1998) (independent judgment standard for custody/visitation findings)