Constitutional law - constitutional rights of parents do not require showing of unfitness in third party cases.

• Author: Gelzinis, Peter P.

Constitutional Law--Constitutional Rights of Parents Do Not Require Showing of Unfitness in Third Party Cases--Kulstad v. Maniaci, 220 P.3d 595 (Mont. 2009).

The United States Constitution and the Montana Constitution protect a natural parent's fundamental right to parent his or her children. (1) Courts have, however, differed in defining the extent of that right and the protection it affords the natural parent in relation to a third party seeking to establish contact with a child. (2) In Kulstad v. Maniaci, (3) the Montana Supreme Court considered whether the constitutional rights of a natural parent required a showing that the natural parent was unfit as a prerequisite to awarding a third party a parental interest. (4) In upholding the constitutionality of sections 40-4-211 and 40-4-228 of the Montana Code, the court held that the absence of a requirement that a court first determine the fitness of the parent before granting a parental interest to a third party does not violate a natural parent's fundamental rights. (5)

Michelle Kulstad and Barbara Maniaci began a relationship in 1995, eventually moving in together in Montana and exchanging rings with each other. (6) As their relationship progressed, they discussed the possibility of parenting a child together. (7) They met with a lawyer who advised them that only one of them could legally adopt a child under Montana law. (8) When they got the opportunity to adopt a child, they agreed Maniaci would be the adoptive parent, but both would act equally as parents in raising the child. (9) Later, Maniaci pursued a second adoption despite objections from Kulstad. (10) Although Kulstad disagreed with the second adoption, she nevertheless acted as a parent to both children, providing physical and emotional support on a daily basis until she and Maniaci ended their relationship in 2006.11

In January 2007, Kulstad sought an order from the district court granting her a parental interest. (12) After an initial hearing to determine whether Kulstad had a parental interest, the court concluded that pursuant to sections 40-4-211(4)(b) and (6) of the Montana Code, Kulstad established by clear and convincing evidence that she had formed a parent-child relationship with both minor children. (13) The court established an interim parenting plan, and found section 40-4-228 of the Montana Code would apply to the final decision that would be made at a later date regarding the parenting arrangement between Kulstad and Maniaci. (14) A bench trial was held in May 2008 to determine whether Kulstad should be awarded a permanent parental interest in the children. (15) After hearing testimony from several medical professionals, the court found both children had attachment disorders, both recognized Kulstad as their parent and, therefore, it would be in the children's best interest to award Kulstad a parental interest. (16) On appeal, the Montana Supreme Court held by a six to one majority that the district court did not violate Maniaci's constitutional rights as a natural parent by not first establishing that Maniaci was unfit before awarding Kulstad a parental interest. (17)

The Montana Supreme Court has long held that the "careful protection of parental rights is not merely a matter of legislative grace, but is constitutionally required." (18) The court has interpreted this constitutional protection to require a showing of parental abuse or neglect before a court can consider granting visitation or transferring custody to a third party. (19) In upholding this standard, the court has expressed the need to carefully guard against the state's ability to interfere with the parent-child relationship. (20) In a pair of decisions, the court rejected as unconstitutional two different statutory schemes permitting a lower court to award custody to a third party over a fit parent based on the best interest of the child. (21) The court voiced its distaste for making custody decisions based solely on the subjective best interest standard in third party cases, because the court would be invited to inquire into whether a child's best interest means that he or she should be raised by a wealthy or intelligent family as opposed to a natural parent. (22)

In Troxel v. Granville, (23) the United States Supreme Court considered the constitutionality of a Washington state statute permitting "any person" to petition a court for visitation at any time when visitation would be in the best interests of the child. (24) In a plurality opinion, the Court held that the statute unconstitutionally interfered with the fundamental liberty interest that parents have in caring for and raising their children. (25) The Court based its holding on the broad language of the statute and its failure to require Washington courts to give deference to a parent's determination of the child's best interest. (26) While acknowledging that when a parent is fit there is normally no reason for the state to intervene in private, family affairs, the Court did not decide the main constitutional question of whether the Due Process Clause requires a showing of parental abuse or neglect before allowing third party visitation. (27) The Court was hesitant to issue a per se rule with regard to constitutional protections of natural parents under third party visitation statutes because state courts often addressed those questions on a case-by-case basis. (28)

Following Troxel, state courts have continued to struggle with defining the extent of the constitutional rights of natural parents. (29) In Montana, the state supreme court held that Troxel was consistent with the court's long held view that there must be an initial determination regarding the parent's fitness before awarding a third party visitation or custody. (30) If the parent is fit, there is a presumption in favor of the parent's wishes, but if the parent is not fit, then the court may determine by clear and convincing evidence that contact with a grandparent is in the child's best interest. (31) In the absence of a per se rule regarding the constitutionality of third party visitation statutes, the Minnesota Supreme Court held that Troxel describes "guiding principles," requiring a statute give weight to the decisions of a fit parent and provide for more than just a best interest analysis to overcome the decisions of a fit parent. (32) But in rejecting a grant of visitation to a domestic partner who was determined to be a de facto parent, the Maryland Court of Appeals held that Troxel, in conjunction with Maryland jurisprudence, required a finding that the natural mother was unfit in order to overcome her constitutional right to raise her child as she saw fit. (33)

In Kulstad v. Maniaci, the court determined that the constitutional rights of natural parents did not require third parties to demonstrate parental unfitness as a condition to pursuing a parental interest in a child. (34) The court distinguished much of its early jurisprudence by noting that prior to the 1999 amendments to the nonparental statutes, the termination of parental rights under the statute could only be done based upon a showing of abuse or neglect by a natural parent. (35) After the 1999 amendments, the court reasoned that the legislature sought to balance the constitutional rights of the parent with the child's constitutional rights by providing standing to a third party seeking a parental interest on the condition that the third party had established a parent-child relationship with the minor. (36) The court disagreed that In re Parenting of J.N.P. rejected the constitutionality of the 1999 amendments, noting the plaintiffs in that case could not have relied on the statute in question, section 40-4-228 of the Montana Code, because they never established the prerequisite parent-child relationship as defined by section 40-4-211.37

The court embraced the dicta in Troxel, where the United States Supreme Court declined to issue a per se rule regarding the rights of natural parents relative to third parties, opting instead to leave that question to a case-by-case adjudication in the state courts. (38) The absence of a per se rule provided the court flexibility to distinguish its prior holding in Polasek v. Omura, which required a determination of parental fitness, from its analysis of section 40-4228 by reasoning that the Montana Legislature specifically allowed a court to determine a third party parental interest claim without having to find the natural parent unfit. (39) The court distinguished sections 40-4-211 and 40-4-228 from the Washington state statute struck down in Troxel; the Washington statute permitted anyone at any time to seek visitation, while...