Herbst v. Sayre

OK 100 Application of In the Matter HERBST. Steven Herbst, Appellant,

Christopher Steven Sayre, Appellees. Sayre and Christi

Brett

No. 89548.

Supreme Court of Oklahoma. 13, 1998.

Oct. environment,

of harm in the intact but asserting visitation it is in the child’s seeks him, to have best interests contact with grandfather. maternal ¶ parents of 4 The dismissal application upon purport- Herbst’s based authority § grant ed of under 10 O.S. grandparent which could allow court ordered Haxel, Purcell, Appellant. Ted W. for against the parents visitation wishes both Shew, Corbin, Smith, Craig J. Laura D. family. in an intact nuclear assert Parents P.C., Shew, Corbin, Tishomingo, Scrivner & an application such an of the statute is un- Appellees. infringement rights to on their management and minor of their SIMMS, J: agree. child. We ¶ grandfather appealed the 1 Maternal provision of 10 Supp.1996 5 The application denial attempts under which to Herbst upon ruling based the trial court’s visitation argue parents force visitation and which the 5,§ provision Supp.1996 10 O.S. is unconstitutional reads as follows: grandchild, granting section, provisions to the Pursuant of this applied unconstitutional to the facts was any grandparent of an unmarried minor Appeals case. af- this The Court of Civil child shall reasonable visita- decision, finding ap- firmed the trial court’s tion to child if the district court deems plication of 10 O.S. unconstitutional in the it to be best of the child. interest existing facts. under right any grandparent of visitation to upon 2 Based our grant- review record of an unmarried minor child shall be law, applicable trial court and we affirm the only ed so far as that is authorized vacate the of the Court of Civil but provided and order of the district Appeals. court.2 Herbst, question first the maternal 6 The which be an- must S.D.S., grandfather of the upon minor filed swered is the statute pursuant Supp.1996 actually to application upon an 10 O.S. Herbst relies confers him the 5, seeking grandchild.1 standing visitation with his to visitation which he Then, Sayre, parents and Christi if Brett the child’s claims. the statute what does claims, together are married to one another live we must if Herbst determine family. intact as an Both statute is constitutional. at the looking constitutionality child oppose grandparent visitation of their our state’s statute, allegation Herbst. Herbst has made no this Court must examine inadequately danger or in constitutionally S.D.S. is cared for interest which is petition part 1. Herbst filed another in an effort court and not the district made secure visitation with the child daughter. his other record. daughter As in this the second Herbst has never in fact met as his S.D.S. her husband do not Herbst to have wish daughter, Sayre relationship with his Christi contact with their court which S.D.S., child. The trial prior child’s mother of deteriorated similarly application heard other declined to June birth. At time of his Sayre entertain that as well. quite years was not three S.D.S. old. petition pur- one which appeal. sued on section, quoted was The above emergency amended in 1996 and took effect on Both sets to discuss in declined eight days appli- prior June to Herbst's detail the reasons for disassociation their again for visitation. The cation section was dislike of stand Herbst and chose instead amended, only slightly, in as fol- 1997 to read implemen- arguments against their constitutional section, lows: "Pursuant of this tation of sealed grandparent Four visitation. every depositions, spe- grandparent mi- each and of an unmarried possibly reflecting some objections cific nor child shall have ...” returned reasonable were these protected, regard determine under what circum- With visita- tion, clearly stances and to what extent that interest the statute divests right to is in infringed upon by the state and conclude decide what their child’s best gives of whether Oklahoma’s interest and that determination to the with consideration permissible respect, district court. In this the statute statute fits within the bounds infringement. standing pursue vests Herbst with the rights objections over the of the Therefore, we must next evaluate Right Supp.1996

I. What Does 10 O.S. constitutionality the of the statute. 5(A)(1) Purport § to Give which the form from an ment to the statute panded been a reaction to decisions of this the visitation. fit, married, parents, See In re first time we have examined an such as the one O.S. ceased applied only ¶7 94-95 § The statute evolved into its 5). However, the parent.3 Bomgardner, (discussion Legislature in original Grandparents urged situations Each appears primarily rights regarding history both of whom this ease here, 1971 enactment which 1985 OK 711 P.2d subsequent involving repeatedly grandparents.4 ^[*] presents , the child of application Court, object present amend- to have of 10 the de- ex- in Davis v. preservation tionably, tionally protected right. Nelson v. ent and child is a States ognized that ety. of that command the Intrusion (“The II. Parents’ ¶ 10 This Court and the United bond can be child is Davis, the constitutionally protected right.”); integrity Protected Interest the 954 P.2d relationship highest protection upon Court have relationship fundamental and constitu justified only parent-child relationship Constitutionally of a repeatedly between a 708 P.2d parent and in our soci upon (“Unques unit and sanctity Nelson, dem to a par rec concern”) looking at the statute in its current onstration of a state (Davis form, every it grand- (emphasis original) states that “each and was overruled parent by statutory of an unmarried minor child shall amendment to 10 in that have independent reasonable visitation to the child if the Davis had held counsel for a required only district court deems it to be in the best minor child was state initi regarding interest of the Supp.1997 child.” 10 O.S. ated cases termination of 5(A)(1). remaining rights, privately sections of the now initiated cases re circumstances, quire independent repre statute address various the minor to have well); Grissom, but none sections address the intact sentation as Leake v. (“The one, family, such as this with two OK result, care, objecting parents. only por- parent companionship, As of a to the custo dy management tion of the statute which has child is a basic his/her 5(A)(1). by the facts of this case is right protected fundamental United perhaps 3. The form of the 1971 statute reads as follows: 4. The 1989 amendment to the statute is analysis the most fundamental for our in this that, Provided when one or both are longer grandparen- case. The statute no limited deceased, any grandparent, parent who is the tal visitation to an instance where one or both of parent, of the child’s deceased shall have rea- changes were deceased. The were as rights sonable of visitation to the when it tf-one-or-both-parents-of follows: an unmarried is in the best interest of the child. The district minor-child- are or if deceased said are jurisdiction courts are vested with to enforce divorced 1. Pursuant of this such visitation relative make orders section, any grandparent parent thereto, who the filing of a verified deeeased-or-divorced-parent-of-the-child of an rights. for such visitation Notice as ordered minor unmarried child shall reasonable by the given person court shall be or child if the district having of visitation to the parent and the of said child it to be in interest of the child. deems (strikeout the best county venue of such action shall be in the text, previous underline add- indicates person the residence of parent. such text.) Supp.1971 type unchanged text and ed standard dren Constitutions.... The is within discretion of the chil- States Oklahoma adoptive parents. dren’s permit are free to visits grandparents, legal authority but there is no changed response statute was so.”); do them to In the Mat decision, it paternal grand- Fox but was the OK ter parent, family, adoption within the circum- (“The integrity stance of the case which Fox was accounted unit, protection which has in the Due found the revision the statute not the Equal Process and Protection Clauses of the language. again above We acknowledged Fourteenth Amendment and the Ninth parents’ authority to oversee Amendment, subject to intrusion and dis Grissom, visitation in Leake state memberment where a (Okla.1980) (citing 1109-10 In the Matter of “compelling” pro State interest arises and (Okla.1977)). Fox, 567 P.2d 985 tecting the harm requisite child from is the “Although parents’ right 12 the to rear interest.”) (emphasis original); In largely children without interference state is Fox, 126, the Matter 567 P.2d 985 of interest, expressed ‘liberty’ as a the [United (“[T]he adoptive parents are entitled to exer Court that States] has also noted Thus, rights parents. all the cise of natural right rights derives from inherent grandmother ... whether natural can Parkerson, the constitution.” Brooks v. 265 visitation continue with children is within 769, (Ga.1995), 189, Ga. 454 S.E.2d 772 cert. adoptive par the discretion of the children’s 942, 377, denied 516 116 133 U.S. S.Ct. ents.”); Yoder, Wisconsin v. 406 U.S. (1995) (citing L.Ed.2d 301 Prince v. Massa 233-34, 92 S.Ct. 32 L.Ed.2d 15 chusetts, 158, 166, 321 64 88 U.S. S.Ct. (1972) (“power parent may of the ... (1944) Hawk, L.Ed. 645 and Hawk v. 855 subject to if it appears limitation ... that (Tenn.1993)). n. 3 S.W.2d jeopardize parental decisions will the health safety potential or have a or May II. which Extent the State burdens[,]” significant social otherwise no Infringe Upon Liberty Parents’ attach.); Quilloin such limitations Interest Walcott, 246, 255, 549, 554, 434 U.S. 98 S.Ct. state’s 13 The interest in a child (“We (1978) recognized 54 L.Ed.2d 511 “implicated upon finding is of harm on numerous occasions that the relationship parent’s child ... or of the custodial unfit parent is constitutionally between and child Davis, ness.” Davis v. 1108 protected.”); Bd. Educ. v. Cleveland La- of (Okla.1985) (citations omitted). It is Fleur, 632, 639, 791, 796, 414 94 U.S. S.Ct. police responsibility state’s to exercise its (1974) (“This L.Ed.2d 52 Court long rec power protect a child’s welfare when ognized personal of freedom choice in decisions of would result in harm. of marriage matters life one of Id.; Parkerson, Brooks v. Ga. protected by the liberties the Due Process (Ga.1995) Yoder, (citing S.E.2d Amendment.”). Clause of the Fourteenth U.S. at S.Ct. at Meyer constitutionally Such fundamental pro Nebraska, 402-03, 262 U.S. 43 S.Ct. right infringed upon tected cannot be absent (1923)). 628, 67 L.Ed. 1042 Without See, e.g., state interest. In the unfitness, requisite harm or inter state’s A.S., Matter Sherol P.2d at 888. of est does not rise a level so as acknowledged 11 This Court right to warrant intrusion of to decide for their children issues A.S., parents. of Matter regarding grandparents visitation In at P.2d (Okla. Fox, the Matter 1977). Constitutionality This IV. The Court stated: Oklahoma’s Statute adoptive

[T]he are entitled to exer- cise recognize all 14 It important natural Thus, mandating third grandmother the natural introduction of a ... party, grandparent, can even a chil- unit continue into a fundamental, liberty. constitutional between limiting parents’ action is state they their children to care for “long recognized that freedom it is Because statutorily see and the created fit marriage in matters personal choice grandparental must be reconciled protected liberties family life is one of the preservation parents’ in favor of the Fourteenth the Due Process Clause rights. relationship be- Amendment[,]” own as well as Oklahoma’s parent para- tween and child must be held constitution, suf interest must be the state’s mount. such a limita ficiently compelling to warrant Bd. infringement. ¶18 Cleveland tion argues ultimately this case is LaFleur, 796; In the 94 S.Ct. at Educ. v. grandchild’s This about “best interests”. at Matter argument sight the threshold loses which of Sherol the child’s must be met in order to address many recognizes that in 15 This Court place. To reach best interests in the first intergeneration preservation of families the interests, there the issue of a child’s best al, relationships has value as a harm, requisite showing of must be a encouraged and should be social ideal harm, before the bring threat of issue as other institutions whenever courts as well or divorce court or some instance of death fact, such as it seems statutes possible. situation brings the child’s domestic developed as a means § have been 10 O.S. 5 Absent a province within the of the court. stabilizing influ provide children thereof) (or harm, it is not showing of threat has af grandparent a when death ence of associations a for the state to choose which family parents’ “domestic or the fected must maintain and which subject judicial situation [becomes] This case does not permitted to abandon. Hawk, v. 855 S.W.2d concern.” Hawk put meet the test to the child’s best threshold (Tenn.1993); also, Bomgard See In re interests In the Matter at issue. ner, 711 P.2d at 94-95. Parkerson, 581 P.2d at Brooks v. However, vague generalization a response, also 454 S.E.2d at 773 n. 5. In we many grandpar- positive about the influence Georgia note the reasoned observation of the far grandchildren their falls ents have may “that even if It well be Court. necessary showing harm short would benefit such a bond exists and the state’s interference which would warrant maintained, impact child if of a lawsuit regarding who decision the bond over the enforce maintenance of may respect child. to our consti- see a With parents’ objection can have a deleterious evaluation, court ordered tutional whether a Parkerson, Brooks v. effect on the child.” relationship might thought be grandparent (Ga.1995) 454 S.E.2d 265 Ga. for a child is not as better or more desirable Bohl, (citing Joan C. Brave New Statutes: Parkerson, relevant. See Brooks Grandparent Visitation As Unconstitutional objec- over the operating S.E.2d at 773. If Family Invalid Exer Invasions of Life Uniy. grandparental visitation parents, Poiver, tion of fit Gorge Mason cises (1992)). may only upon showing imposed Rights L. Journal Civil it. Id. the child would suffer harm without perspective, 10 19 From a constitutional involve no to this case falls applies 17 The facts of this case as it and no state interest. or threat of harm to S.D.S. short of a harm Herbst As a trial court’s dismissal of part on the unfitness in result, was not error. there is no interest so li- give Oklahoma which could the State of Grandparents Equitable Right of V. these cense to interfere with the decision never addition, argues whose care for their child 20 In Herbst argues questioned grandparent been equitable Herbst of an interest suspect. favor visitation, authority granted apart for an from the of 10 O.S. Bomgardner, 711 P.2d effectively to make statute. In re strips parents (Okla.1985). grandpar assuming Even visita- decisions regarding grandparental outside ents have a to visitation Any tion and their conflict own children. 10, equity statute, confínes of Title must in all in- declaring that the critical when Fleming Baptist applied controversy, stances follow the law. to this is infirm.2 Oklahoma, General Convention I (“no court is ever justified invoking equity the maxim of THE ANATOMY OF CONTROVERSY purpose destroying legal rights.”); Invoking the terms of 10 O.S.Supp. Drabek, Telephone Chickasaw Co. v. 333; Independent School Dist. district court decree affording him access to Teachers, City 89 v. Oklahoma Federation of daughter’s daughter child. His and her Therefore, equity 1980 OK 612 P.2d 719. husband, living as an family, intact nuclear subject to the United States and Oklahoma object contact with the petitioning protec- constitutions and not exceed the grandparent. precise reasons for their tions and therein assured to families. unknown, opposition are but the relationship Mandating grandparental visitation in this between Herbst and his has been equity, statute or would severely strained. Herbst seems to have violate the federal and state constitutions. cultivating failed in important family ties. ¶ 21 affirm the We decision the trial He is divorced from his wife. Both of his and vacate the of the Court of daughters, him, who are alienated from re- Appeals. Christopher applica- Civil Herbst’s fuse to plea accede to his for access to their properly tion for visitation was complete children. Herbst is a stranger to dismissed. grandchild with whom he seeks visita- ¶ 22 CERTIORARI PREVIOUSLY tion. GRANTED. OPINION OF THE COURT ” ¶ 3 The trial court “dismissed Herbst’s OF CIVIL APPEALS VACATED. JUDG- that, application, stating absent showing MENT OF THE TRIAL COURT AF- minor,” “harm to the the court has no au- FIRMED. thority to interfere parental rights and control. The judge trial KAUGER, C.J., SUMMERS, V.C.J., viewed the terms of 10 O.S. as HODGES, LAVENDER, HARGRAVE, preventing “judicially him from legislating” WILSON, WATT, JJ., ALMA concur. any parameters of grandparental visitation ALA, J., based OP from Part some notion equity. dissents IV affirmed, Appeals Court of opinion, judgment. court’s and concurs in Civil declaring the invoked statute to be unconstitutional as ALA, Justice, dissenting OP from Part IV applied to an intact nuclear in which opinion concurring the court’s grandparental visitation in opposed contest is judgment. parents. both ¶ 1 today The court provi- holds 5(A)(1)1 O.S.Supp.1996 § sions of 10 violate II they law when are invoked for THE BAR OF PRUDENTIAL RULE intact an grandparental opposed by visitation is today The court offends the time-hon- both join I am unable to prudential ored rule of state and federal version, provisions O.S.Supp.1996 § of 10 present adopted slightly differs are: from that which was invoked in this case. See 10 section, 5(A)(1). Pursuant any O.S.Supp. grandparent of an unmarried minor child shall have reasonable of visitation to the child expressing opinion While I am no about the if the district court deems it to be in the best infirmity of the section in contest or about facial interest of the child. The of visitation to validity its constitutional in the context other any grandparent of an unmarried minor child scenarios, conclude, I am unable to as the court granted only shall be so far as that done, appears to have that the statute commands provided by authorized and dis- order of the grandparents courts either to afford access to an trict court. intact nuclear or in other familial This is the version of the statute in force that was setting. when the claim came before the court. The ply apply the time-honored notions of grandparen- need by casting on jurisprudence equity jurisprudence. A correct decree will cloud of an unwarranted tal visitation statute although given be the reasons infirmity. According to the constitutional for affirmed rule, are incorrect.5 issues must the decision constitutional prudential of strict necessi- in advance never be reached IV shape decisional law in

ty. imprudent to It is by the those dictated broader than terms SUMMARY legislative act is to be precise facts to which can 7 Because Herbst’s claim for access relief applied. Where withheld) grounds be denied on consistent with the (or upon alternative afforded chancery principles jurisprudence, consid- constitutional chal- grounds, consideration of 5(A)(l)’s validity eration of inappropriate. lenges should be avoided clearly unnecessary inappropriate. and hence judiciary’s self- This is the essence short, not the court’s I do share view bar” of restraint.3 “prudential erected question, statute in when invoked

the critical any part to this offends Ill federal or state fundamental law. either OF 10 O.S.1996 THE PROVISIONS I from Part hence dissent IV THEY ARE SOUGHT AS judgment. and concur in its court’s THE BE APPLIED TO FACTS TO CASE, NOT OF ARE CONSTI- THIS INFIRM.

TUTIONALLY oper- in contest does not 5 The statute 1998 OK CIV APP 167 to a impediment as an denial ate this case HOSPITAL, SAINT FRANCIS visitation. Available Plaintiff/Appellee, statutory equita- grandparents are both grandchildren.4 ble claims for visitation quest prius A denial of Herbst’s nisi VAUGHN, Defendant/Appellant. W. Allen weight supported in this case access is No. 90849. of the evidence. The trial court’s decree is clearly contrary weight of adduced not

proof. equities Herbst has no his favor. Oklahoma, Appeals of Court of Civil blood, Though related to them he is a Division No. 1. stranger family and to total to his immediate grandchild in contest. 17, 1998. June today, the rela- 6 As the court declares 10, Aug. Rehearing Denied 1998. tionship parent and child must in- between 21, Certiorari Denied Oct. 1998. paramount. It warrants deed be treated judicial protection. This can be accom- before us without violat-

plished the case

ing prudential bar of restraint. We sim- 59, Authority, Bomgardner, Valley 1985 OK 711 P.2d Tennessee 4. See In re

3. See Ashwander v. 466, 483, 288, 347, 92, 80 297 U.S. 56 S.Ct. L.Ed. J., (1936) (Brandeis, concurring); v. 688 I.N.S. 919, 975, 2764, 2796, Chadha, 462 U.S. 103 S.Ct. 63, Walters, P.2d 5. See Price v. 1996 OK 918 J., (1983) (White, dissenting); 317 77 L.Ed.2d 1370, 14; 1385 Willis v. Nowata Land and n. Clay Independent v. School District No. Tulsa 1282, Co., 169, 1286- Cattle 1989 OK 789 P.2d 294, 13, (Opala, County, 935 P.2d 1997 OK 87; Gregory, 780 P.2d Davidson v. 1989 OK J., dissenting); Petition No. In re Initiative 23; Trust v. 685 n. Utica Nat'l Bank and OK Question State No. Co., P.2d Prod. Associated 1980 OK C.J., concurring); (Opala, Smith v. 1066; Ward, Holloway v. 84 Okl. Westinghouse 466, Corp., Elec. P.217, 219 (1922). Diehl, OK n. Schwartz 280, 283; Dept. P.2d Dablemont Safety, Public

Case Details

Case Name: Herbst v. Sayre

Court Name: Supreme Court of Oklahoma

Date Published: Oct 13, 1998

Citation: 971 P.2d 395

Docket Number: 89548

Court Abbreviation: Okla.