Michael v. Hertzler
In Michael v. Hertzler (Wyo. 1995), 900 P.2d 1144, the Wyoming Supreme Court held the right to associate with one's family is a fundamental constitutional right, and, as such, the court applied the strict-scrutiny test to the grandparent visitation statute. Under that analysis, the court found the statute was constitutional and held:
"The claim of due process involves a requirement that the party claiming the constitutional protection demonstrate a protected interest in life, liberty or property, and the interest has been infringed in an impermissible way . . . The right of privacy is inherent in the concept of ordered liberty . . .The right supports parents in making decisions regarding the care and company of their children with minimal government intervention, and we hold that Hertzler has presented a protected liberty interest in the context of his right of privacy." Id. at 1148.
In considering the compelling interest of the state, the Michael court looked to authority from other jurisdictions:
"In Lehrer v. Davis, 214 Conn. 232, 571 A.2d 691 (1990), the court . . . declined to rule on the constitutionality of the visitation statute because of an insufficient factual record. It said, however, 'psychiatrists and psychologists . . . unanimously counsel that children should maintain and retain meaningful relationships and that to deny them continuing contacts is a deprivation . . .Stability, continuity and opportunity, of and for meaningful association are said to build a healthy psyche." Id. at 1148-49.
"In Kentucky, the supreme court considered the constitutionality of that state's grandparent visitation statute and balanced the parents' liberty interest, under the Fourteenth Amendment to rear children without undue governmental interference, against the interest of the state to endeavor to strengthen familial bonds. . . The Kentucky court invoked the rational relation test of lesser scrutiny in finding its statute to be constitutional and said: 'If a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent. That grandparents and grandchildren normally have a special bond cannot be denied. . ." Id. at 1149.
Following the lead of other jurisdictions, the Michael court found a compelling state interest which justified the grandparent visitation statute. Id. The Michael court then balanced the compelling state interest against the parent's fundamental right and declared:
"The Supreme Court of the United States clearly has recognized that children are 'persons' within the meaning of the Bill of Rights. . .In our cases, the right to associate with one's family is identified as a fundamental liberty under the Wyoming Constitution. . .We perceive this interest to be an equivalent fundamental right to that asserted by Hertzler. It is available to children and grandparents, as well as parents, and the state has an equal duty to protect the fundamental rights of the grandparents and the children." Id. at 1150.
The court concluded that in addition to the compelling state interest attached to the best interest of the children, the compelling state interest exists in maintaining the right of association of grandparents and grandchildren. Id. at 1151. Holding the statute is constitutional, the court stated:
"The relative interests of the parties, parents, grandparents, and children must be balanced and procedural protections or safeguards must be present as the situation demands. Lentsch v. Marshall, 741 F.2d 301 (10th Cir.1984). We are satisfied the Wyo. Stat. 20-7-101 contains the appropriate safeguards." Id.