In re: Thurgood

2006 UT 46
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the Matter of the Estate 	No. 20040796
of S.T.T.
Darlene Uzelac,
Plaintiff and Appellee,
v.
F I L E D
Darryl Thurgood,
Defendant and Appellant. 	August 25, 2006
---
Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 003900606
Attorneys: 	J. Bruce Reading, Salt Lake City, for plaintiff
Jerrald D. Conder, Salt Lake City, for defendant
---
On Certification from the Utah Court of Appeals
DURHAM, Chief Justice:
INTRODUCTION
¶1 	This case comes before this court as the result of a
visitation dispute between a child’s maternal grandparents and
her father. 	Following the unexpected death of the child’s
mother, the grandmother petitioned the district court for custody
of the child. 	However, the district court awarded custody to the
father. 	Although the court’s custody order urged the father to
allow future visitation between the child and her grandparents,
the parties were unable to agree upon an acceptable visitation
schedule. 	As a result, the grandmother filed a petition for
visitation pursuant to Utah Code section 30-5-2 (Supp. 2005)(the
Grandparent Visitation Statute). 	The district court granted the
petition.

1 Ms. Uzelac was the only plaintiff before the district
court. 	Mr. Uzelac never joined her as a party. 	However, to the
(continued...)
No. 20040796 	2
¶2 	On appeal, the father asks this court to declare that
the district court’s application of the statute violated his
fundamental rights under the United States Constitution to manage
the care, control, and custody of his child. 	While the father
limits his arguments to an as-applied challenge, his claims
appear to also directly challenge the constitutionality of any
court’s authority to order grandparent visitation. 	Because the
Grandparent Visitation Statute grants courts authority to order
grandparent visitation, we must undertake a facial constitutional
analysis of the statute. 	Accordingly, we analyze first whether
the plain language of the statute is unconstitutional, and second
whether the trial court applied the statute in a manner that
unconstitutionally infringed upon the father’s liberty interest
in the care, custody, and control of his child. 	We hold that the
statute is constitutional, both on its face and as applied in
this case.
BACKGROUND
¶3 	Darryl and Shauna Thurgood were divorced in February
1994. 	In December 1995, following a brief period of
reconciliation, Ms. Thurgood gave birth to their daughter (the
child). 	The following March, Ms. Thurgood and her child moved in
with Ms. Thurgood’s parents, Darlene and Robert Uzelac, where
they lived for the next three years. 	During that period, the
child spent a substantial amount of time with her grandparents
and interacted with them on a daily basis. 	When the child became
old enough to attend preschool, one of her grandparents regularly
picked her up from school and spent afternoons with her. 	The
Uzelacs cared for the child during the week, took her camping on
weekends, and vacationed with her.
¶4 	The extent of the Uzelacs’ involvement changed somewhat
in February 1999, when Ms. Thurgood moved into her own home,
taking the child with her. 	Thereafter, the grandmother continued
to play a significant role in the child’s life by babysitting the
child several times each week and speaking to her on the phone
almost daily. 	This ended just over a year later when Ms.
Thurgood died unexpectedly after a short illness. 	As a result,
Ms. Uzelac moved into the child’s home to provide full-time care
for the child.
¶5 	Following Ms. Thurgood’s death, Ms. Uzelac petitioned
to be appointed as guardian and conservator of the child. 1

1 (...continued)
extent that the time the child spends with Ms. Uzelac will also
be spent with Mr. Uzelac, the district court’s findings
determined that it would be in the child’s best interests to
spend time with her maternal grandparents. 	Like the district
court, we will refer to the grandparents where relevant, even
though Ms. Uzelac is the only appellee.
3 	No. 20040796
However, in June 2000, the district court awarded custody to the
child’s father, Mr. Thurgood, as the sole surviving natural
parent. 	In its order, the district court stated that there
“ought” to be future visitation between the child and her
maternal grandparents with Mr. Thurgood’s approval and under
“reasonable and liberal circumstances,” and the court admonished
the parties “to cooperate to see that the child visits
appropriately with her grandmother.”
¶6 	Shortly thereafter, it became apparent that the parties
could not work out a mutually acceptable visitation schedule.
Mr. Thurgood first received custody in June 2000, but he did not
allow any visitation between the child and the Uzelacs for five
months. 	Thereafter, Mr. Thurgood granted Ms. Uzelac two visits
in December 2000, one for the child’s birthday and the other for
a family Christmas party. 	The next visitation occurred in March
2001, when Mr. Thurgood allowed Ms. Uzelac to spend one hour with
the child. 	Ms. Uzelac did not see the child again until July
2002, at which time she petitioned the court for visitation
pursuant to the Grandparent Visitation Statute. 	In July 2002,
the court granted Ms. Uzelac temporary visitation, pending a
final resolution of this matter. 	Despite the court-ordered
schedule for visitation on the first weekend of every month, Mr.
Thurgood only allowed Ms. Uzelac to visit the child twice between
July 2002 and January 2003. 	As a result, the district court
ordered the father to allow Ms. Uzelac to make up for the lost
visits by spending every other weekend with the child for an
indefinite period of time. 	Subsequently, visitation took place
every other weekend until December 2003, when the Utah Court of
Appeals reversed the district court’s order, holding that the
district court had abused its discretion by ordering make-up
visitation in excess of the visitation necessary to remedy the
number of visits the father had prevented. 	Thurgood v. Uzelac,
2003 UT App 439, ¶¶ 14-15, 83 P.3d 398. 	In January 2004, Mr.
Thurgood moved to Florida with the child and the district court
ordered temporary telephonic visitation between the child and Ms.
Uzelac. 	The last telephonic visitation on record occurred in
February 2004.

No. 20040796 	4
¶7 	During this protracted litigation, Mr. Thurgood
challenged the constitutionality of the Grandparent Visitation
Statute, complaining that it infringed upon his liberty interest
in the care, custody, and control of his child. 	The district
court held the statute was constitutional, therefore giving Ms.
Uzelac standing and the court jurisdiction to proceed to the
question of whether visitation was in the child’s best interests.
The court then ordered the parties to conduct discovery regarding
whether visitation was in the best interests of the child.
¶8 	As part of its discovery order, the court ordered the
performance of a “visitation evaluation by a duly qualified
evaluator.” 	The parties stipulated to the appointment of Valerie
Hale, Ph.D. 	Although Mr. Thurgood was invited to participate in
the evaluation process, he declined to do so. 	Because Mr.
Thurgood refused to participate, Dr. Hale was only able to
conduct an informal evaluation that was “limited to an assessment
of the nature of the relationship between [the child] and her
maternal grandparent without further input from Mr. Thurgood.”
Dr. Hale conducted her evaluation by meeting with the child and
the Uzelacs at the Uzelacs’ home during one of the scheduled
grandparent visitation periods.
¶9 	Based on her evaluation, Dr. Hale made the following
findings: 	(1) “[t]here is a great deal of physical affection
between the grandparents and [the child]”; (2) “[b]oth
grandparents were patient [and] able to set and maintain limits”
with the child; (3) “[t]he child responded to her grandparents as
loved and trusted care givers”; (4) the child “expressed her
desire to spend more time with her grandparents”; and (5) the
child talked about the time when she lived in her grandparents’
home with her mother. 	Dr. Hale concluded that, as a result of
the grandparents’ role as primary caregivers, the child
“demonstrated a strong emotional attachment to her grandparents”
that was as strong as parent-child emotional attachments and that
the loss of this attachment would devastate the child. 	In
addition, Dr. Hale concluded that the child still had an
emotional wound from her mother’s death. 	Because Dr. Hale
believed the child kept the memory of her mother alive through
access to her grandparents, she concluded that a loss of the
relationship with the Uzelacs would impede the child’s ability to
cope with her mother’s death. 	Therefore, Dr. Hale recommended
that it would be “in the best interests of the child to maintain
a meaningful relationship with her maternal grandparents which is
characterized by frequent and on-going visitation with them.”
¶10 	A trial regarding whether Ms. Uzelac should be granted
permanent visitation was held on July 28, 2004. 	At the trial,

5 	No. 20040796
Dr. Hale testified regarding her findings and her evaluation
report was admitted into evidence. 	Mr. Thurgood countered Dr.
Hale’s testimony with the testimony of Brad Drown, a licensed
clinical social worker. 	Mr. Drown testified that visitation
would not be appropriate at that time due to the animosity
between Mr. Thurgood and the Uzelacs, as was evidenced by the
ongoing dispute.
¶11 	The district court rejected Mr. Drown’s recommendation,
determining instead that there is a “bond of love and affection
between [the child] and both of her maternal grandparents.” 	The
court then concluded that the parental presumption had been
rebutted and visitation would be in the child’s best interests.
Therefore, the court ordered visitation between Ms. Uzelac and
her grandchild.
¶12 	Mr. Thurgood appealed the district court’s decision to
the Utah Court of Appeals, claiming that the district court’s
application of the Grandparent Visitation Statute violated his
constitutional rights. 	The court of appeals certified the case
to this court. 	We have jurisdiction pursuant to Utah Code
section 78-2-2(3)(b) (2002).
ANALYSIS
¶13 	Parents have a constitutional right to manage “the
care, custody and control of their children.” 	Troxel v.
Granville, 530 U.S. 57, 66 (2000). 	The U.S. Supreme Court has
recognized that this right is “perhaps the oldest of the
fundamental liberty interests.” 	Id. at 65. 	This liberty
interest encompasses parents’ personal choices in family life
beginning with their right to marry and conceive and extending to
their right to control the education of their children and raise
them according to the dictates of their religion. 	See, e.g.,
Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing that
freedom of personal choice in matters of family life is a
fundamental liberty interest protected by the Fourteenth
Amendment); Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972)
(holding that compulsory high school attendance interfered with
Amish parents’ fundamental rights to raise their children
according to the dictates of their religion); Stanley v.
Illinois, 405 U.S. 645, 651 (1972) (recognizing the “rights to
conceive and raise one’s children”); 	Pierce v. Soc’y of Sisters,
268 U.S. 510, 534-35 (1925) (holding that a parent’s liberty
interest extends to the choice of education and upbringing of
children); Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923)
(holding that the right to “marry, establish a home and bring up
children” is protected by the Due Process Clause of the

No. 20040796 	6
Fourteenth Amendment and includes the parents’ right to control
the education of their children). 	In accordance with this right,
parents are entitled to a presumption that they act in the best
interests of their children, see, e.g., Parham v. J.R., 442 U.S.
584, 602 (1979) (“The law’s concept of the family rests on a
presumption that parents possess what a child lacks in maturity,
experience, and capacity for judgment required for making life’s
difficult decisions.”), and their child-rearing decisions are
therefore generally entitled to deference, see Troxel, 530 U.S.
at 69.
¶14 	Notwithstanding the parental presumption, however, “the
family itself is not beyond regulation.” 	Prince v.
Massachusetts, 321 U.S. 158, 166 (1944). 	The state as parens
patriae has a “wide range” of authority that may ultimately limit
parental autonomy in raising children. 	Id. at 167. 	The U.S.
Supreme Court has long upheld the state’s use of its parens
patriae authority to protect children in many arenas; for example
it has recognized a state’s authority to mandate school
attendance, see Meyer, 262 U.S. at 400 (acknowledging importance
of education enforced in most states by compulsory education
laws), regulate child labor, see Sturges & Burn Mfg. Co. v.
Beauchamp, 231 U.S. 320, 325 (1913) (allowing states to prohibit
youths from working in dangerous occupations), and protect
children from abuse and neglect, see Santosky, 455 U.S. at 766-67
(upholding state interest in “promoting 	the welfare of the
child” through a parental termination proceeding as long as the
state provides sufficient protection to parents to satisfy due
process).
¶15 	The state’s power to protect the best interests of
minor children also extends to divorce proceedings and custody
determinations. 	See Palmore v. Sidoti, 466 U.S. 429, 433 (1984)
(reversing a state court’s decision to give a father custody
based on the mother’s interracial marriage and stating that
“[t]he goal of granting custody based on the best interests of
the child is indisputably a substantial governmental interest for
purposes of the Equal Protection Clause”); cf. Utah Code Ann.
§ 30-3-5(5)(a) (Supp. 2005) (“In determining parent-time rights
of parents . . . the court shall consider the best interest of
the child.”). 	In some cases, states have extended this authority
to include the protection of relationships that children have
formed with third parties. 	See Campbell v. Campbell, 896 P.2d
635, 643 (Utah Ct. App. 1995) (recognizing the state has a
legitimate interest “in fostering relationships between
grandparents and their grandchildren”); cf. Utah Code Ann. § 30-
3-5(5)(a) (requiring courts to consider the best interests of the
child in determining the visitation rights of immediate family

2 See Ala. Code § 30-3-4.1 (Supp. 2005); Alaska Stat.
§ 25.20.065 (2004); Ariz. Rev. Stat. Ann. § 25-409 (Supp. 2005);
Ark. Code Ann. § 9-13-103 (2006); Colo. Rev. Stat. § 19-1-117
(2005); Conn. Gen. Stat. § 46b-59 (2005); Del. Code Ann. tit. 10,
§ 1031 (2006); Ga. Code Ann. § 19-7-3 (2006); Haw. Rev. Stat.
§ 571-46.3 (Supp. 2005); Idaho Code Ann. § 32-719 (2006); 750
Ill. Comp. Stat. 5/607 (LexisNexis Supp. 2006); Ind. Code Ann.
§ 31-17-5-1 (2006); Ky. Rev. Stat. Ann. § 405.021 (2006); Mich.
Comp. Laws Serv. § 722.27b (2006); Minn. Stat. § 257C.08 (2004);
Miss. Code Ann. § 93-16-3 (2004); Mo. Rev. Stat. § 452.402 (Supp.
2005); Mont. Code Ann. § 40-9-102 (2005); Neb. Rev. Stat. § 43-
1802 (2004); Nev. Rev. Stat. Ann. § 125C.050 (LexisNexis 2004);
N.M. Stat. Ann. § 40-9-2 (LexisNexis 1999); N.C. Gen. Stat.
§ 5–13.2A (2005); N.D. Cent. Code § 14-09-05.1 (2004); 23 Pa.
Stat. Ann. §§ 5311-5313 (West 2001); R.I. Gen. Laws §§ 15-5-24.1
to -24.3 (2003); S.D. Codified Laws § 25-4-52 (2006); Tenn. Code
Ann. §§ 36-6-306 to -307 (2006); Tex. Fam. Code Ann. § 153.433
(Vernon Supp. 2005); Vt. Stat. Ann. tit. 15, §§ 1011-1016 (2002);
Wis. Stat. §§ 767.245, 880.155 (2003-04); Wyo. Stat. Ann. § 20-7-
101 (2005).
7 	No. 20040796
members). 	For example, many states, like Utah, have passed laws
protecting the relationship between children and grandparents. 2
¶16 	Utah first statutorily recognized the importance of
grandparent relationships in 1975 when the legislature amended
Utah Code section 30-3-5, which dealt with orders concerning
children in a divorce proceeding, to address grandparent
visitation. 	Gribble v. Gribble, 583 P.2d 64, 66 (Utah 1978)
(citing Utah Code Ann. § 30-3-5 (1953)). 	The amended version of
the statute instructed courts to consider “the welfare of the
child” when granting grandparent visitation. 	Utah Code Ann. 30-
3-5 (1953). 	The amendment reflected the “legislative intent to
protect the relationships which affect the child whose parents
are being divorced, and to be sensitive to the fact that
relationships beyond those of parent-child may be important
enough to protect vis-a-vis visitation.” 	Gribble, 583 P.2d at
66. 	Two years later, in 1977, the Utah Legislature extended its
recognition of grandparent visitation by adopting Utah Code
sections 30-5-1 and -2, the first Utah statutes dealing
exclusively with the visitation rights of grandparents. 	1977
Utah Laws page no. 566. 	Specifically, section 30-5-2 provided,
“The district court may grant grandparents reasonable rights of
visitation to grandchildren, if it is in the best interest of the
grandchildren.” 	Id.

No. 20040796 	8
¶17 	Since 1977, section 30-5-2 has been amended a number of
times. 	Its current iteration grants grandparents standing and
provides that Utah courts may grant visitation if the
grandparents rebut the presumption that “a parent’s decision with
regard to grandparent visitation is in the grandchild’s best
interests.” 	Utah Code Ann. § 30-5-2(2) (Supp. 2005). 	The
statute then lists a number of factors that are relevant to the
court’s determination of whether the presumption has been
rebutted. 	Id. 	In particular, the statute favors grandparents
whose children have been separated from their grandchildren by
death, divorce, separation, or loss of custody by the child of
the grandparents. 	See id. § 30-5-2(2)(c), (e), (f).
¶18 	The district court granted Ms. Uzelac visitation
pursuant to this statute. 	While Mr. Thurgood argues that the
district court’s order was an unconstitutional application of the
statute, his arguments are framed as a facial challenge in that
he does not address any arguments unique to either the facts of
his case or the district court’s application of the statute.
Rather, his argument suggests that courts can never
constitutionally grant grandparent visitation over the objections
of a fit custodial parent and thus the statute cannot be
constitutionally applied under any circumstance. 	Moreover, the
district court’s authority to grant grandparent visitation is
contingent upon the constitutional validity of the statute as a
whole. 	Therefore, we begin our analysis of this case by
addressing whether the statute unconstitutionally infringes upon
a parent’s right to the care, custody, and control of his or her
children. 	Because we conclude that it does not, we then consider
whether the statute was applied unconstitutionally in this case.
I. 	UTAH’S GRANDPARENT VISITATION STATUTE IS CONSTITUTIONAL
A. 	Troxel v. Granville
¶19 	The only U.S. Supreme Court case addressing the federal
constitutionality of grandparent visitation is Troxel v.
Granville, 530 U.S. 57 (2000). 	In Troxel, the children’s
paternal grandparents petitioned for bimonthly visitation
following the death of the children’s father. 	Id. at 61. 	The
grandparents brought their petition pursuant to a Washington
statute that allowed “any person” to petition the court for
visitation rights “at any time” and authorized the court to order
visitation if it would “serve the best interest of the child.”
Id. (quoting Wash. Rev. Code. § 26.10.160 (3) (1994)). 	The
children’s mother did not oppose all visitation, but she sought
to limit it to one short visit per month. 	Id. 	The trial court
disagreed with the mother’s judgment and, over her objections,

3 The plurality consisted of four justices. 	Troxel v.
Granville, 530 U.S. 57, 60 (2000). 	Two other justices concurred
in the judgment, voting to uphold the Washington Supreme Court’s
facial invalidation of its own statute. 	Id. at 75-80 (Souter &
Thomas, J., concurring in the judgment). 	The remaining three
justices dissented. 	See id. at 80-91 (Stevens, J., dissenting);
id. at 91-93 (Scalia, J., dissenting); id. at 93-102 (Kennedy,
J., dissenting).
9 	No. 20040796
ordered visitation twice per month based on the “best interests
of the children.” 	Id. at 61-62. 	The Washington Court of Appeals
reversed the trial court’s order, and the grandparents sought
review from the Washington Supreme Court. 	Id. at 62. 	The
Washington Supreme Court granted the grandparents’ petition and
held that the statute was facially unconstitutional because it
failed to require a “threshold showing of harm” before
interfering with parental judgments and swept too broadly by
allowing “any person” to petition the court at “any time,”
leaving the “best interest” standard as the only limiting factor.
Id. at 63. 	On certiorari, the U.S. Supreme Court affirmed the
judgment of the Washington Supreme Court. 	Id.
¶20 	A plurality of the Court held that, as applied, the
Washington statute unconstitutionally infringed upon the mother’s
fundamental right to control the upbringing of her children, id.
at 73, because it failed to accord proper deference to the
parental presumption, 3 id. at 68-69. 	The grandparents did not
allege or present evidence that their grandchildren’s mother was
unfit; therefore, the presumption that fit parents act in their
children’s best interests applied and the mother’s decisions were
entitled to deference. 	Id. 	Despite her right to the parental
presumption, the trial court did not give any “special weight” to
her decision regarding grandparent visitation. 	Id. at 69. 	In
fact, the trial court essentially applied the opposite
presumption, assuming that grandparent visitation was in the
children’s best interests. 	Id. 	The trial judge specifically
stated, “I think [visitation with the] [grandparents] would be in
the best interest of the children and I haven’t been shown it is
not.” 	Id. (first alteration in original). 	The trial judge then
reminisced about the enjoyable summers he had spent with his own
grandparents and expressed his hope that grandparent visitation
would be as enjoyable an experience for the children in the case
before him. 	Id. at 72. 	This approach effectively required the
mother to prove that her proposed visitation schedule would be in
the best interests of her children rather than requiring the
grandparents to prove that the children’s best interests would be
better served by their own, more generous visitation schedule.
Id. at 69.

No. 20040796 	10
¶21 	The plurality’s conclusion that the trial court did not
give the proper weight to the mother’s decisions was supported by
the fact that the mother did not seek to deny all visitation and
that the district court did not make adequate findings to support
its decision. 	Id. 71-73. 	The plurality deemed it important that
the mother did not attempt to deny the grandparents all
visitation, but merely wished to limit it beyond the visitation
requests of the grandparents. 	Id. at 71. 	Despite her
willingness to offer visitation opportunities to the
grandparents, the trial court did not defer to her proposed
schedule or make any findings that the mother’s proposed
visitation schedule was unreasonable. 	Id. at 72. 	Moreover, the
trial court articulated only two formal findings to support its
order to supercede the mother’s decision: 	(1) that the
grandparents were “part of a large, central, loving family . . .
and [could] provide opportunities for the children in the areas
of cousins and music,” and (2) that “the children would be
benefitted by spending quality time with [their grandparents].”
Id. at 72. 	The plurality believed that such meager findings
indicated that the trial court’s decision hinged on “a simple
disagreement” between the trial judge and the mother regarding
the children’s best interests. 	Id. 	This was impermissible
because the “Due Process Clause does not permit a State to
infringe on the fundamental right of parents to make child
rearing decisions simply because a state judge believes a
‘better’ decision could be made.” 	Id. at 72-73. 	Therefore,
based on the trial court’s presumption that grandparent
visitation was in the children’s best interests and the trial
court’s meager findings, the plurality held that the trial court
did not afford due weight to the mother’s decision and thus
applied the statute unconstitutionally. 	Id. at 73.
¶22 	Although the plurality limited its holding to the
statute’s unconstitutional application, it did criticize the
statute as a whole. 	Specifically, the plurality stated the
statute was “breathtakingly broad,” essentially allowing “any
person” to petition for visitation at “any time” and giving the
court power to grant such a petition as long as it served the
child’s best interest. 	Id. at 67. 	According to the plurality,
this language “effectively permit[ted] any third party seeking
visitation to subject any decision by a parent concerning
visitation of the parent’s children to state-court review.” 	Id.
The plurality’s censure did not end there. 	It also disapproved
of the statute’s failure to require that a court afford a
parent’s decision “any presumption of validity or any weight
whatsoever,” instead leaving the decision “solely in the hands of
the judge.” 	Id. 	The plurality recognized that this essentially

11 	No. 20040796
meant that a Washington court could “disregard and overturn any
decision by a fit custodial parent concerning visitation,” 	id.
(emphasis in original), which is exactly what it believed the
trial court had done, id. at 72.
¶23 	The plurality recognized that most state court
visitation adjudication occurs on a case-by-case basis and
therefore declined to hold that all nonparental visitation
statutes violate the Due Process Clause as a per se matter. 	Id.
at 73. 	However, the plurality’s criticisms of the Washington
statute’s language and application provide guidelines concerning
what a statute should include in order to comport with due
process. 	Following Troxel, statutes allowing a court to award
visitation over the wishes of a parent must presume that fit
parents act in their children’s best interests. 	Id. at 69-70.
Likewise, the plurality implied that statutes requiring a finding
that the parent has unreasonably denied or limited visitation
would be more likely to be upheld. 	See id. at 71-72 (favorably
citing to state statutes containing a requirement that visitation
be unreasonably denied). 	Finally, given the plurality’s
criticisms of the district court’s failure to make adequate
factual findings, id. at 72, statutes ought to provide guideposts
to aid courts in making specific determinations regarding the
rebuttal of the parental presumption. 	Statutes that follow these
guidelines provide greater assurance that courts will allow the
parent to make the decision in the first instance and accord
“special weight” to the parent’s decision when it is reviewed.
Id. at 70.
¶24 	The plurality’s decision also provides guidance
regarding what Troxel and the Due Process Clause do not require.
Although the plurality recognized that as a fit parent the mother
was entitled to the parental presumption, the plurality did not
say that a fit parent’s decision regarding visitation was
absolute; rather, the plurality clearly contemplated that the
presumption might be rebutted. 	See id. at 69. 	The plurality
stated that the decision about whether to cultivate an
intergenerational relationship “is for the parent to make in the
first instance. 	And, if a fit parent’s decision . . . becomes
subject to judicial review, the court must accord at least some
special weight to the parent’s own determination.” 	Id. at 70.
Thus, the problem in Troxel was not the trial court’s
intervention, but its failure to give any deference to the
mother’s decision. 	Id. at 69. 	Similarly, the plurality decision
does not impose the requirement that the parental presumption be
rebutted by a showing of harm to the child. 	Indeed, the
plurality specifically refused to determine whether the Due
Process Clause requires a showing of harm or potential harm to

4 This case presents this court with its first post-Troxel
opportunity to address the constitutionality of Utah’s
Grandparent Visitation Statute. 	Utah courts have, however,
considered whether prior versions of the statute were
constitutional under pre-Troxel jurisprudence. 	For example, in
Campbell v. Campbell, 896 P.2d 635 (Utah Ct. App. 1995), the Utah
Court of Appeals considered the constitutionality of a prior
version of the Grandparent Visitation Statute, which provided,
“The district court may grant grandparents and other immediate
family members reasonable rights of visitation if it is in the
best interests of the children.” 	Utah Code Ann. § 30-5-2 (Supp.
1994). 	The court of appeals concluded the statute was
constitutional because it was “narrowly tailored to require
‘reasonable’ periods of temporary visitation only if the court
[found] visitation to be ‘in the best interest of the children,’”
and it placed the burden of proving best interests on the
(continued...)
No. 20040796 	12
the child as a condition precedent to granting visitation. 	Id.
at 73 (noting the plurality did not consider whether nonparental
visitation statutes must include a showing of harm or potential
harm to the child as a condition precedent to granting visitation
in order to satisfy due process).
¶25 	In light of these federal constitutional standards, we
now address whether Utah Code section 30-5-2 provides sufficient
structural safeguards to protect the constitutional rights of
parents to make decisions concerning the care, custody, and
control of their children.
B. 	Utah’s Grandparent Visitation Statute
¶26 	“[L]egislative enactments are endowed with a strong
presumption of validity; and . . . they should not be declared
unconstitutional if there is any reasonable basis upon which they
can be found to come within the constitutional frame work [sic].”
Greaves v. State, 528 P.2d 805, 806-07 (Utah 1974). 	Therefore,
when analyzing the constitutionality of a statute, the court
“presumes that the statute is valid” and “resolve[s] any
reasonable doubts in favor of constitutionality.” 	State v.
Lopes, 1999 UT 24, ¶ 6, 980 P.2d 191. 	Moreover, we will
“construe the statute to avoid interpretations that conflict with
relevant constitutional mandates, so long as the resulting
construction does not conflict with the reasonable or actual
legislative purposes of the statute.” 	State v. Mohi, 901 P.2d
991, 1009 (Utah 1995). 	With these principles in mind, we hold
that Utah Code section 30-5-2 (Supp. 2005) can be interpreted
consistently with the principles announced in Troxel. 4

4 (...continued)
grandparents rather than presuming that visitation was in the
children’s best interests. 	Campbell, 896 P.2d at 642-43 (quoting
Utah Code Ann. § 30-5-2 (Supp. 1994)). 	Thus, the visitation
statute was “rationally related to promoting the State’s
legitimate interest in fostering relationships between
grandparents and their grandchildren.” 	Id. at 643. 	The
Grandparent Visitation Statute has since been narrowed
significantly. 	See Utah Code Ann. § 30-5-2 (Supp. 2005).
5 Our requirement that the grandparents must rebut the
(continued...)
13 	No. 20040796
¶27 	First, the Grandparent Visitation Statute protects
parental liberty interests by explicitly incorporating a
presumption that parents act in the best interests of their
children. 	Utah Code Ann. § 30-5-2(2) (“There is a rebuttable
presumption that a parent’s decision [concerning grandparent
visitation] is in the grandchild’s best interests.”).
Accordingly, courts must generally give deference to a parent’s
grandparent visitation decisions and may only override them where
the petitioning grandparent rebuts the presumption. 	A
grandparent meets this burden when the grandparent shows that
there are special circumstances that permit the court to set
aside the parent’s decision even after the court has given it
special weight. 	See id. 	We read the statute to require that a
court must, as a threshold matter, specifically determine that
the grandparent has met this burden in the process of considering
whether the court should order visitation. 	The court’s inquiry
must acknowledge that, at all times, the burden of proof rests on
the petitioner and not on the parent.
¶28 	The Grandparent Visitation Statute does not specify a
standard of proof by which the parental presumption must be
rebutted. 	The degree of proof required in a particular type of
proceeding has “traditionally been left to the judiciary to
resolve.” 	Santosky v. Kramer, 455 U.S. 745, 755 (1982) (internal
quotation marks omitted). 	Because the parental presumption deals
with parental liberty interests, and accordingly should be
afforded great deference by the courts, we conclude that a clear
and convincing standard of proof should apply to satisfy due
process requirements. 	See Santosky, 455 U.S. at 769 (mandating
the application of at least a clear and convincing standard in
parental rights termination cases). 	Therefore, a grandparent
petitioning the court for visitation under the Grandparent
Visitation Statute must clearly and convincingly rebut the
parental presumption. 5

5 (...continued)
presumption by clear and convincing evidence is consistent with
prior versions of section 30-5-2. 	The 1998 version of section
30-5-2 provided that in order for a court to override a parent’s
visitation decision, the court had to find “the petitioner has,
by clear and convincing evidence, rebutted the presumption that
the parent’s decision to refuse or limit visitation with the
grandchild was reasonable.” 	Utah Code Ann. § 30-5-2(2)(e)
(1998). 	The clear and convincing requirement was removed from
the statute in 2000. 	See Utah Code Ann. § 30-5-2 (2000).
No. 20040796 	14
¶29 	In addition to incorporating the parental presumption,
Utah’s Grandparent Visitation Statute contains a second
structural component to prevent judgments based on mere
disagreement between the judge and the parent by listing several
relevant factors that may justify setting a parent’s decision
aside. 	These factors are: 	(1) whether the petitioner is a “fit
and proper person”; (2) whether visitation with the grandchild
has been “denied or unreasonably limited”; (3) whether the parent
is “unfit or incompetent”; (4) whether the petitioner has “acted
as the grandchild’s custodian or caregiver” or has a “substantial
relationship with the grandchild” the loss of which is “likely to
cause harm to the grandchild”; (5) whether the petitioner’s child
(the parent of the grandchild) “has died or become a non-
custodial parent”; (6) whether the petitioner’s child has been
“missing for an extended period of time”; and (7) whether
“visitation is in the best interest of the grandchild.” 	Utah
Code Ann. § 30-5-2(2)(a)-(g). 	These factors can be grouped into
three categories, which we will discuss below.
¶30 	The first category generally addresses situations where
a family has been divided by some turn of fate--death, divorce,
loss of custody, a missing person, or a declaration that a parent
is unfit or incompetent. 	The statute recognizes that when a
family unit has been touched by these events a situation may
arise where the child’s interests differ from those of the
parent. 	This is particularly true where the direct family line
between grandparents and grandchildren has been severed, leaving
the “in-law” relationship as the only remaining adult connection.
Id. § 30-5-2(2)(c), (e), (f). 	Recognizing the potential for
conflict in the relationship between the parent and the “in-law”
and the resulting potential for interference with the
grandparent-grandchild relationship, the statute provides an

6 Prior to 1992, the only grandparents eligible for court-
ordered visitation under the Grandparent Visitation Statute were
those grandparents “whose child, who is the parent of the
grandchildren, is dead, or . . . is divorced or legally separated
from the other parent of the grandchildren.” 	Campbell, 896 P.2d
at 640 n.9 (citing Utah Code Ann. § 30-5-1(2) (1989)). 	The
current version of the Grandparent Visitation Statute does not
incorporate this as a requirement, but rather includes it as one
of several factors a court may consider when addressing a
grandparent’s petition for visitation. 	However, we note that it
will be extremely difficult, if not impossible, for a grandparent
to rebut the parental presumption where a family unit is intact
because few, if any, of the statutory factors will apply. 	See
Campbell, 896 P.2d at 640 n.9 (“[W]e note that the state has a
stronger argument for court intervention to protect the extended
family when the nuclear family has been dissolved.” (citation and
internal quotation marks omitted)). 	Moreover, intact family
units do not generally present the same emotional tensions as
those that arise where the familial connections have been severed
by an unfortunate twist of fate that has left only a strained in-
law relationship in its wake. 	While it is true that parents in
an intact family unit might unreasonably deny visitation to their
own parents, the statute does not appear to be directed to such
situations, but rather to those, such as the case before us,
where an in-law has unreasonably denied visitation to the parents
of his or her former spouse.
15 	No. 20040796
avenue for grandparents and grandchildren to maintain their
relationship. 6
¶31 	The second group of statutory factors encompasses
situations where the state has an interest in protecting the
child from harm. 	Thus, a court may grant grandparents visitation
if the grandparents can clearly and convincingly show they share
a “substantial relationship” with the grandchild and the “loss or
cessation of that relationship is likely to cause harm to the
grandchild.” 	Id. § 30-5-2(2)(d). 	The state’s interest may also
extend to situations where the child’s parent has “denied or
unreasonably limited” visitation, id. § 30-5-2(2)(b), because of
the increased probability that the parent is not acting in the
child’s best interests.
¶32 	The third category of statutory factors may be more
accurately categorized as necessary threshold findings. 	These
are findings that a court must make in order to grant visitation.
For example, a court cannot order visitation if the petitioning
grandparent is not a “fit and proper person to have visitation

No. 20040796 	16
with the grandchild.” 	Id. § 30-5-2(2)(a). 	Likewise, a court
cannot order visitation unless it is in the best interests of the
child. 	See id. § 30-5-2(2)(g). 	This holds true even if the
petitioner has satisfied other statutory factors.
¶33 	We recognize that the statute describes “best
interests” and grandparent fitness as relevant factors to the
determination of whether the parental presumption has been
rebutted. 	Id. § 30-5-2(2)(g). 	However, a judge could not rely
solely on these factors in determining whether the parental
presumption has been rebutted and still comport with due process.
See Troxel, 530 U.S. at 72-73 (“[T]he Due Process Clause does not
permit a State to infringe on the fundamental right of parents to
make child rearing decisions simply because a state judge
believes a ‘better’ decision could be made.”). 	Allowing these
factors alone to rebut the parental presumption would come too
close to allowing a judge to supercede a parent’s decisions based
solely on a disagreement between the parent and the judge. 	Thus,
while a grandparent must be fit to receive court-ordered
visitation, we do not believe a grandparent’s fitness, standing
alone, would ever properly serve as a reason to override the
parent’s decision. 	Rather, it is only one of many factors that a
court can consider in determining whether the circumstances allow
it to intervene in the parent’s decision-making process.
Moreover, in order for the statute to adhere to constitutional
requirements, we read the statute to require that the parental
presumption be rebutted by clear and convincing evidence before a
court orders visitation based on the child’s best interests.
This distinction is not readily apparent from the plain language
of the statute, but it is necessary to sufficiently protect
parental rights. 	We recognize, of course, that the factual
findings that support other statutory factors, such as whether
the loss of a substantial grandparent relationship will
affirmatively harm the child, will often overlap with facts
relevant to the ultimate determination of whether grandparent
visitation is in the child’s best interests.
¶34 	While the statute lists several means by which a
grandparent can rebut the parental presumption, the presumption
is most clearly rebutted when the court finds the existence of
several relevant factors, such as in this case. 	Here, the court
found that (1) Ms. Thurgood, the grandparent’s child, had died;
(2) the grandparents had a substantial relationship with the
child, due in large part to a prior caretaking relationship, and
the loss of the grandparent-grandchild relationship would harm
the child; (3) the grandmother was fit; and (4) Mr. Thurgood had
unreasonably limited or denied visitation.

7 This opinion has already addressed some of the flaws with
this statute by clarifying the way in which some of the factors
must be treated to satisfy constitutional requirements. 	See
supra ¶¶ 29-34. 	For example, we specified that a grandparent’s
fitness is a threshold finding and that a court cannot rely on
best interests alone and still comport with due process. 	Supra
¶¶ 32-33. 	However, our construction of the statute does not
fully clarify the manner in which it should be applied. 	For
example, the statute lists several “relevant” factors a court may
consider in determining whether the parental presumption has been
rebutted, including (1) whether the grandparent is fit,
(2) whether visitation has been “denied or unreasonably limited”,
(3) whether “the parent is unfit”, (4) whether the grandparent
has acted as the child’s caregiver or “otherwise has had a
substantial relationship with the grandchild”, (5) whether
grandparent visitation is in the grandchild’s best interests, and
(6) whether the grandparent’s child who is the parent of the
grandchild has died, lost custody, or disappeared. 	Utah Code
Ann. § 30-5-2(2). 	Although we have attempted to categorize these
factors and have provided some instructions regarding how they
should be applied, the statute still does not provide a district
court with much guidance regarding how the factors ought to be
weighed or applied.
17 	No. 20040796
¶35 	We therefore hold that the Grandparent Visitation
Statute is not unconstitutional under Troxel. 	The statute
expressly incorporates the parental presumption, thereby ensuring
that courts give “special weight” to the decisions of fit
parents. 	Moreover, it provides guidance to courts in determining
whether the petitioning grandparents have established
circumstances under which the courts can, nevertheless, supersede
the parent’s decision.
¶36 	Our holding that the statute is constitutional does not
suggest the statute is flawless. 	We acknowledge that the statute
is confusing and, consequently, provides very little guidance to
a district judge trying to resolve a grandparent visitation
dispute. 7 	However, it is not our role to repair drafting defects
that do not render a statute unconstitutional. 	This task falls
to the legislature. 	Accordingly, we suggest, and indeed
encourage, that our state legislature clarify the statute to
provide more guidance to courts confronted with grandparent
visitation issues. 	We hope that our decision in this case will
assist the legislature in that undertaking.
¶37 	Having determined that the Grandparent Visitation
Statute is constitutional, we now turn to whether the trial

8 We note that visitation and custody rights were not
ordered in the divorce decree as the parties were divorced before
the child was born. 	However, the divorce necessitated the
court’s intervention after the child’s birth by setting forth
custody, visitation, and child support orders.
No. 20040796 	18
court’s application of the statute violated the liberty interests
of Mr. Thurgood.
II. 	AS APPLIED, THE GRANDPARENT VISITATION STATUTE DOES NOT
INFRINGE UPON MR. THURGOOD’S LIBERTY INTERESTS
¶38 	To determine whether the statute survives an as-applied
challenge, we review the decision of the lower court to determine
whether it meets the standards established by Troxel v.
Granville, 530 U.S. 57 (2000). 	“Constitutional challenges to
statutes present questions of law, which we review for
correctness.” 	Provo City Corp. v. Thompson, 2004 UT 14, ¶ 5, 86
P.3d 735. 	For the district court’s application to be
constitutional, the grandparents must have clearly and
convincingly rebutted the presumption favoring Mr. Thurgood’s
decision regarding grandparent visitation, and the district court
must have found that grandparent visitation was in the child’s
best interests. 	Moreover, this determination must be accompanied
by sufficient findings of fact to justify state interference. 	We
hold that the district court constitutionally applied the
statute.
¶39 	As required by Troxel, 530 U.S. at 70, the district
court gave special weight to Mr. Thurgood’s decisions. 	Before
ordering visitation, the district court placed the burden of
proof on the grandparents to rebut the presumption that Mr.
Thurgood’s visitation decision was in the best interests of the
child. 	In determining whether the grandparents rebutted this
presumption, the district court closely followed the structure
established by the relevant factors listed in the statute.
¶40 	The district court first looked to the structure of the
family. 	Specifically, the court noted that this was the second
time that the courts had been asked to intervene in the affairs
of this family, stating “[t]he two parents of [the child]
‘invited’ the intervention of this court into the issue of
custody and visitation, in the first instance, by divorcing in
the courts of the State of Utah, thus necessitating a custody and
visitation order.” (Supp. 2005). 8 	Moreover, consistent with Utah
Code section 30-5-2(2)(e), the district court noted that Ms.
Uzelac’s daughter, Ms. Thurgood, had died.

19 	No. 20040796
¶41 	The district court also found that visitation between
the child and the grandparents had been unreasonably limited or
denied. 	When Mr. Thurgood first received custody in June 2000,
he did not allow visitation for five months. 	After this five
month period, he granted Ms. Uzelac two visits, one for the
child’s birthday and the other for a family Christmas party. 	The
next visitation did not occur until March 2001, and it only
lasted for one hour. 	Thereafter, Mr. Thurgood did not allow
visitation or telephone calls until July 2002, despite repeated
attempts by the Uzelacs to contact the child. 	After the judge
ordered visitation in July 2002, Mr. Thurgood only allowed Ms.
Uzelac to see the child twice between July 2002 and January
2003, when the district court issued a second visitation order.
Following that order, Ms. Uzelac saw the child every other
weekend throughout 2003 until Mr. Thurgood and the child moved to
Florida in January 2004. 	Mr. Thurgood terminated all phone
contact between the Uzelacs and the child one month later. 	Based
on these findings, there was sufficient evidence for the district
court to determine that visitation had been “denied or
unreasonably limited,” in satisfaction of one of the named
statutory factors. 	Utah Code Ann. § 30-5-2(2)(b).
¶42 	Finally, the court considered the “substantial
relationship” between the child and her grandparents, concluding
that the loss of this relationship would be harmful to the child.
Cf. id. § 30-5-2(2)(d). 	The mother and the child lived with the
Uzelacs, and the Uzelacs took care of the child on a daily basis
throughout most of the child’s first four years of life. 	Mr. and
Ms. Uzelac picked the child up from school, took her camping on
the weekends, and traveled with her. 	After the child’s mother
died, Ms. Uzelac lived with the child until Mr. Thurgood received
custody. 	Moreover, the district court’s conclusion that the
child and the Uzelacs shared a substantial relationship was
largely based on an expert’s evaluation of the relationship
between the child and the Uzelacs. 	The evaluation found that the
child responded to her grandparents as “loved and trusted care
givers,” and that there was a “great deal of physical affection”
between the child and the Uzelacs. 	The evaluation noted that
during the evaluator’s visit, the child reminisced about living
in the grandparent’s home with her mother and “expressed [a]
desire to spend more time with her grandparents.” 	The evaluator
concluded that (1) the child demonstrated an “emotional
attachment to her grandparents [that] was as strong as [that]
seen between parents and children”; (2) the attachment could be
explained by the grandparents’ role as primary caregivers;
(3) the loss of her mother remained a deep emotional wound for
the child that had not been resolved; (4) the child kept the
memory of her mother alive through her relationship with her

9 Although the Grandparent Visitation Statute does not
define “best interests,” the district courts of this state have
extensive experience in applying this standard, particularly in
the family dissolution context. 	In addition, there are statutes
addressing best interests in other contexts that provide
guidance. 	For example, Utah Code section 30-3-34 (Supp. 2005)
establishes fifteen factors a district court may consider to
determine best interests of the child in the context of parental
visitation after divorce. 	The factors that the court may
consider in determining whether more or less parent time should
be awarded under Utah Code section 30-3-34(2) are:
(a) parent-time would endanger the child’s
physical health or significantly impair the
child’s emotional development; (b) the
distance between the residency of the child
and the noncustodial parent; (c) a
substantiated or unfounded allegation of
child abuse has been made; (d) the lack of
demonstrated parenting skills without
safeguards to ensure the child’s well-being
during parent-time; (e) the financial
inability of the noncustodial parent to
provide adequate food and shelter for the
child during periods of parent-time; (f) the
preference of the child if the court
determines the child to be of sufficient
maturity; (g) the incarceration of the
noncustodial parent in a county jail, secure
youth corrections facility, or an adult
corrections facility; (h) shared interests
between the child and the noncustodial
(continued...)
No. 20040796 	20
grandparents; (5) the child would be unable to work through the
loss of her mother without frequent access to her grandparents;
and (6) the loss of contact with the Uzelacs would be devastating
and cause the child to suffer. 	The evaluator therefore
recommended that it would be in the best interests of the child
to maintain a meaningful, ongoing relationship with the Uzelacs.
The trial court agreed with these findings and found the
presumption had been rebutted.
¶43 	We agree that the evidence presented to the district
judge clearly and convincingly rebutted the parental presumption,
thereby permitting the court to override Mr. Thurgood’s decision
even after giving it special weight. 	We also agree with the
district court’s finding that grandparent visitation was in the
child’s best interests 9 due to the child’s attachment to her

9 (...continued)
parent; (i) the involvement of the
noncustodial parent in the school, community,
religious, or other related activities of the
child; (j) the availability of the
noncustodial parent to care for the child
when the custodial parent is unavailable to
do so because of work or other circumstances;
(k) a substantial and chronic pattern of
missing, canceling, or denying regularly
scheduled parent-time; (l) the minimal
duration of and lack of significant bonding
in the parents’ relationship prior to the
conception of the child; (m) the parent-time
schedule of siblings; (n) the lack of
reasonable alternatives to the needs of a
nursing child; and (o) any other criteria the
court determines relevant to the best
interests of the child.
21 	No. 20040796
grandparents and the potential harmful ramifications of severing
this relationship. 	Therefore, the district court did not abuse
its discretion when it ordered grandparent visitation in this
case.
CONCLUSION
¶44 	The Grandparent Visitation Statute is consistent with
the constitutional framework established in Troxel v. Granville
and is therefore valid. 	Moreover, we find that the evidence
presented below clearly and convincingly rebutted the parental
presumption incorporated in the statute. 	As a result, the
district court acted within its discretion when it superceded Mr.
Thurgood’s decision by ordering grandparent visitation based on
the child’s best interests. 	We therefore affirm.
---
¶45 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.