Rideout v. Riendeau

2000 ME 198, 761 A.2d 291, 2000 Me. 198, 2000 Me. LEXIS 206

• Court: Supreme Judicial Court of Maine
• Decided: November 13, 2000
• Status: Published

Opinions

SAUFLEY, J.

[¶ 1] We are called upon here to determine whether Maine’s Grandparents Visitation Act violates the constitutional rights of competent parents who choose not to have their children visit with their grandparents. We conclude that the Act, as applied to the facts presented to us, is narrowly tailored to serve a compelling state interest, and thus does not violate the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.

[¶ 2] The grandparents before us, Rose and Chesley Rideout, appeal from a judgment entered in the Superior Court (Saga-dahoc County, Humphrey, J.) affirming an order of the District Court (West Bath, Field, J.) dismissing their petition for visitation with their grandchildren. The District Court, held that the Grandparents Visitation Act, 19-A M.R.S.A. §§ 1801-1805 (1998), violates the Fourteenth Amendment of the U.S. Constitution because it does not require a showing of harm to the child before a court can order visitation with a grandparent.¹ The court concluded that the “best interest of the child standing by itself is not a compelling state interest.” We do not disagree with that conclusion. We conclude, however, that the state does have a compelling interest in providing a forum within which grandparents who have acted as parents to their grandchild may seek continued contact with that child. Thus, we vacate the judgment dismissing the Rideouts’ visitation petition and remand for an application of the Act after a new hearing.

I. BACKGROUND

[¶ 3] The underlying procedural and historical facts may be summarized as follows.² Rose and Chesley Rideout wish to visit with their three grandchildren. The parents of the children do not currently want their children to spend time with the Rideouts. All three children live with their parents, Heaven-Marie Riendeau and Jeffrey Riendeau. Heaven-Marie is the daughter of the Rideouts. The children are Keiko-Marie, now 13 years old (born February 6, 1987); Roman, now 11 years old (born February 16, 1989); and, Mariah, now 7 years old (born June 10, 1998). Jeffrey is the biological father of Mariah and the adoptive father of Roman.

[¶ 4] Heaven was a sixteen-year-old high school student, unmarried, and living at home with the Rideouts when she gave birth to Keiko. During the first seven years of Keiko’s life, four years of Roman’s life, and several months of Mariah’s life, the Rideouts were the children’s “primary caregivers and custodians.” In Keiko’s early years, Rose’s significant involvement in caring for Keiko upset Heaven and caused friction between Heaven and Rose. On several occasions, Heaven left Keiko in the sole custody of Rose and signed written powers of attorney for Rose to act as Keiko’s legal guardian. Heaven moved first to Massachusetts and then to Bangor for Job Corps training. After she completed her framing in 1989, Heaven moved in with her then-husband, Joseph Henderson, and their newborn son, Roman. At Rose’s urging, Keiko went to live with her mother and her stepfather. Soon, however, Henderson became violent and abusive, and Heaven and her two children returned to live with the Rideouts.

[¶ 5] In June 1992, Heaven and Jeffrey Riendeau married. Approximately one year later, and about the time of Mariah’s birth, Heaven and Jeffrey separated, “primarily because of the tensions caused by Rose’s interference in their family unit.” At this point, Heaven and the three children again went to live with the Rideouts. Despite returning to five with-her parents, Heaven’s relationship with Rose remained strained. After Heaven moved back in with her parents, Rose contacted the Department of Human Services regarding Heaven and Jeffrey’s care of the children. Additionally, Rose filed a petition seeking to adopt Keiko. Heaven and the three children left the Rideouts’ home near the time Rose contacted the authorities, and Heaven terminated all contact between grandparents and grandchildren after returning to live with Jeffrey. From this point forward, Heaven and Jeffrey appear to have enjoyed a stable home life. The Rideouts filed the instant complaint seeking court-ordered visitation pursuant to the Grandparents Visitation Act, and the parents moved to dismiss on the ground that the Act is unconstitutional.

[¶ 6] The District Court held a combined hearing on the merits and the motion to dismiss. Although the court granted the motion to dismiss, it also undertook to find the facts, and in so doing, determined that the Rideouts had met the statutory criteria and would be entitled to visitation pursuant to the terms of the Act if the Act were constitutional. The court, however, ordered no visitation, concluding that the Act violated the Due Process Clause of the Fourteenth Amendment.³ The grandparents appealed to the Superior Court without success and now bring their appeal before us.⁴

II. DISCUSSION

A. Troxel v. Granville

[¶ 7] No analysis of Maine’s Grandparents Visitation Act can be undertaken without a review of the recent decision of the U.S. Supreme Court in Troxel v. Granville, 580 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

[¶ 8] In Troxel, the Court was called upon to review the constitutionality of the State of Washington’s version of a nonpar-ent visitation statute. Troxel, 530 U.S. at -, 120 S.Ct. at 2057. The Washington statute is significantly broader than the Maine Act. See Wash. Rev. Code Ann. § 26.10.160(3) (West 1998). The Washington Supreme Court struck down its statute on the basis of the U.S. Constitution, holding that the statute unconstitutionally infringed on the fundamental right of parents to rear their children. Troxel, 530 U.S. at -, 120 S.Ct. at 2057. In so holding, the Washington Supreme Court reasoned that the statute required “no threshold showing of harm” and that it allowed “ ‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child.”⁵ Id. 530 U.S. at -, 120 S.Ct. at 2058-59 (citations omitted). The contrast of Maine’s more tailored Act, which applies only to grandparents and provides a number of protections for parents, is highlighted by Justice O’Connor’s description of the Washington statute as one that “effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” Id. 530 U.S. at -, 120 S.Ct. at 2061.⁶

[¶ 9] Writing for a plurality of the Court, Justice O’Connor found the Washington statute unconstitutional. Id. 530 U.S. at -, 120 S.Ct. at 2065. The plurality found it pivotal that the Washington statute entirely eliminated the parents from the decision-making process, noting that “[o]nce the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference.” Id. 530 U.S. at-, 120 S.Ct. at 2061 (emphasis added). Indeed, the Washington statute “contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever.” Id. (emphasis added). Concluding that the “Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made,” the Court declared the Washington statute unconstitutional as applied. Id. 530 U.S. at-, 120 S.Ct. at 2064.

[¶ 10] Although the Troxel plurality found the Washington statute to be unconstitutional because it was “breathtakingly broad,” it was careful not to decide matters beyond those that were before it. Id. 530 U.S. at-,-, 120 S.Ct. at 2061, 2064. The plurality noted that “[b]ecause much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.” Id. at 2064 (citations omitted). Moreover, given the “sweeping breadth” of the Washington statute, the Troxel plurality was not called upon to engage in a strict scrutiny of the statute. Id. Under no level of scrutiny would the Washington statute be deemed consistent with the concepts embodied in the Due Process Clause.⁷

[¶ 11] Thus, although the Troxel Court declared the Washington statute unconstitutional, it did so on the limited facts and law before it, leaving for another day a constitutional analysis of statutes with more carefully established protections of parents’ fundamental rights.

[¶ 12] The Troxel opinion does, however, provide us with clear guidance on important points. First,

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.

Id. 530 U.S. at-, 120 S.Ct. at 2060. The fundamental right of parents to direct the care and upbringing of their children does not disappear in the face of a third party’s request for visitation with the children. Second, the best interests of the child standard, standing alone, is an insufficient standard for determining when the State may intervene in the decision making of competent parents. Id. 530 U.S. at -, 120 S.Ct. at 2061. And finally, because of the “presumption that fit parents act in the best interests of their children,” trial courts must accord special weight to parents’ decisions and objections regarding requests for third-party visitation. Id. 530 U.S. at -, 120 S.Ct. at 2061-62.⁸

[¶ 13] With these principles in mind, we turn to our analysis of the Maine Grandparents Visitation Act.

B. Standard of Review

[¶ 14] The constitutionality of the Grandparents Visitation Act presents a question of first impression in Maine.⁹ Because the District Court ruled on the validity of the Act as a matter of law, we review the court’s decision de novo, Estate of Jacobs, 1998 ME 233, ¶4, 719 A.2d 523, 524, and we accord no special deference to the review conducted in the Superior Court. Pepperman v. Town of Rangeley, 1999 ME 157, ¶ 3, 739 A.2d 851, 852. Our review is guided by the familiar principle that “[a] statute is presumed to be constitutional and the person challenging the constitutionality has the burden of establishing its infirmity.” Kenny v. Dep’t of Human Servs., 1999 ME 158, ¶ 7, 740 A.2d 560, 563 (citation omitted). Because we must assume that the Legislature acted in accord with due process requirements, if we can reasonably interpret a statute as satisfying those constitutional requirements, we must read it in such a way, notwithstanding other possible unconstitutional interpretations of the same statute. Portland Pipe Line Corp. v. Envtl. Improvement Comm’n, 307 A.2d 1, 15-16 (Me.1973).

[¶ 15] Our role in reviewing the constitutionality of a statute must necessarily be limited by the facts in the case before us. We may not reach beyond those facts to decide the constitutionality of matters not yet presented. United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); State v. Gray, 440 A.2d 1062, 1064 (Me.1982). We agree with the wisdom of Justice Brennan, writing for the unanimous Court in Raines, in which he concluded that an appellate court must be bound by two rules: “one, never ... anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never ... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Raines, 362 U.S. at 21, 80 S.Ct. 519 (citation omitted). Hence, we address the constitutionality of the Act before us in the context of the facts found by the District Court.

C. The Act

[¶ 16] The Grandparents Visitation Act was enacted to provide a forum where certain grandparents could seek access to their grandchildren.¹⁰ The Act provides that grandparents will have standing to bring a petition for visitation only if they demonstrate (1) the death of one of the parents; (2) a “sufficient existing relationship” with their grandchildren; or (8) a sufficient effort to sustain a relationship. 19-A M.R.S.A. § 1803(1) (1998).

[¶ 17] Only subsection 1803(1)(B) of the Act is before us, and we have no occasion to consider the remaining prongs.¹¹ Thus, we do not address the constitutionality of subsections 1803(1)(A) or 1803(1)(C); we determine only whether subsection 1803(1)(B), requiring a “sufficient existing relationship between the grandparent and the child,” can be applied in a manner consistent with the Due Process Clause.

D. Constitutionality of the “Sufficient Existing Relationship” Provision

[¶ 18] We begin our analysis by recognizing that parents have a fundamental liberty interest “to make decisions concerning the care, custody, and control of their children.” Troxel, 530 U.S. at -, 120 S.Ct. at 2060 (citations omitted). In other words, the right to direct and control a child’s upbringing is a “fundamental” liberty interest protected by the Due Process Clause. Id. We understand this fundamental right to be firmly established.¹² “Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. 530 U.S. at -, 120 S.Ct. at 2061 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)) (emphasis added).

[¶ 19] The constitutional liberty interest in family integrity is not, however, absolute, nor forever free from state interference. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); McNicholas v. Bickford, 612 A.2d 866, 870 (Me.1992). The Due Process Clause is not an impenetrable wall behind which parents may shield their children; rather, it provides heightened protection against state intervention in parents’ fundamental right to make decisions concerning the care, custody, and control of their children. See Parham v. J.R., 442 U.S. 584, 603-05, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). That heightened protection mandates strict scrutiny of the statute at issue. See Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 188 L.Ed.2d 772 (1997); Sch. Admin. Dist. No. 1 v. Comm’r, Dep’t of Educ., 659 A.2d 854, 857 (Me.1995). Strict scrutiny requires that the State’s action be narrowly tailored to serve a compelling state interest. Flores, 507 U.S. at 301-02, 113 S.Ct. 1439; Butler v. Supreme Judicial Court, 611 A.2d 987, 992 (Me.1992).

[¶ 20] Therefore, because a fundamental liberty interest is unquestionably at stake here, we must determine first, whether that fundamental liberty interest is interfered with, by the State, in the context of the Grandparents Visitation Act. If so, we apply strict scrutiny to the portions of the Act before us to determine whether the State has narrowly tailored its involvement in the family to serve a compelling state interest.

(i) State Intervention in a Fundamental Right

[¶21] We conclude, and no party has challenged, that the Grandparents Visitation Act provides a mechanism by which the State may intervene in the basic exercise of parents’ rights to determine the care and custody of their children. The Act allows the courts to determine whether parents will be required to turn their children over to the grandparents against the parents’ wishes. The power of the court to adjudicate such disputes and to enforce its own orders constitutes state involvement in a way that clearly implicates parents’ fundamental liberty interests in the care and custody of their children.¹³

(ii) Compelling State Interest

[¶ 22] Because a fundamental liberty interest is interfered with by the State, the State is required to demonstrate that its actions serve a compelling state interest. The District Court, in its thoughtful analysis regarding the necessity of a compelling state interest, noted that “[i]f ... the Act provided a requirement of harm, then it would advance a compelling state interest and pass constitutional muster.” Concluding that the absence of a “harm” element eliminated any compelling state interest, the court held the Act to be unconstitutional.

[¶ 23] An element of “harm” in the traditional sense is not, however, the only compelling state interest extant when matters relating to the welfare of children are under scrutiny. For example, the State’s compelling interest in requiring school attendance or restricting child labor does not derive exclusively from the State’s interest in preventing “harm,” but instead stems from the State’s broader parens patriae interest in the well-being of children. See Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); see also In re Sarah T., 629 A.2d 53, 55 (Me.1993) (finding a compelling state interest in achieving timely permanence for abused children). Thus, although the threat of harm to a child is certainly sufficient to provide the State with a compelling interest,¹⁴ harm consisting of a threat to physical safety or imminent danger is not a sine qua non for the existence of a compelling state interest. We agree with the trial court, however, that something more than the best interest of the child must be at stake in order to establish a compelling state interest.¹⁵

[¶ 24] We are not called upon here to define all instances where a compelling interest could be demonstrated by the State. We need only look to the facts before us to determine whether that level of interest exists, and for that determination we are guided by our own language: “The natural right of a parent to the care and control of a child should be limited only for the most urgent reasons.” Merchant v. Bussell, 189 Me. 118, 27 A.2d 816, 818 (1942) (emphasis added).

[¶25] We conclude that “urgent reasons” exist, where, as here, a grandparent who has functioned as a parent to the child seeks continued contact with that child. The Rideouts acted as Keiko and Roman’s parents for many years. Keiko spent so much of her first seven years being parented by her grandparents that she called the Rideouts “Mom and Dad” and referred to her own mother as “her aunt.”

[¶ 26] The cessation of contact with a grandparent whom the child views as a parent may have a dramatic, and even traumatic, effect upon the child’s well-being. The State, therefore, has an urgent, or compelling, interest in providing a forum for those grandparents having such a “sufficient existing relationship” with their grandchildren. Here the Rideouts have acted as parents for their grandchildren, and therefore may seek continued access to those children. This interest springs not from any common law right of the grandparent to visitation with the child, but from the child’s significant need to be assured that he or she will not unnecessarily lose contact with a grandparent who has been a parent to that child.¹⁶ See Troxel, 530 U.S. at -, 120 S.Ct. at 2071 (Stevens, J., dissenting) (“There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies — the child.”).

[¶ 27] When a grandparent has been the “primary caregiver and custodian” for a child over a significant period of time, the relationship between the child and the grandparent warrants application of the court’s parens patriae authority on behalf of the child and provides a compelling basis for the State’s intervention into an intact family with fit parents. Recently, this compelling interest has been recognized in several other contexts, based upon the reasoning that a parent’s fundamental liberty interest must be balanced against a “[child’s] interest in continuing to have access to the only adult who has acted as a parent to [the child].” Youmans v. Ramos, 429 Mass. 774, 711 N.E.2d 165, 172 (1999); see also V.C. v. 163 N.J. 200, 748 A.2d 539, 548-49 (2000) (holding that the State may intervene to grant visitation over the objections of a parent where the child’s psychological parent “has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood”); American Law Institute, Principles of the Law of Family Dissolution § 2.03 (Tentative Draft No. 4, 2000).¹⁷

[¶ 28] Thus, the State has demonstrated that it has a compelling interest in providing a forum in which a grandparent, who has acted as a parent to the child at issue, may seek continuing contact with the child.

(iii) Narrowly Tailored State Action

[¶ 29] Next, we must determine whether the State’s action is narrowly tailored to serve the identified compelling state interest. See Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (citing Flores, 507 U.S. at 302, 113 S.Ct. 1439). Several aspects of the Act are.central to our analysis. First, a grandparent must establish standing before litigation may commence on a petition. 19-A M.R.S.A. §§ 1803(1), 1803(2)(A)-1803(2)(C). Second, the court must consider any objection of the parents concerning an award of rights of visitation or access by the grandparents. 19-A M.R.S.A. § 1803(2)(D). Third, the court may not grant visitation if doing so would significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child. 19-A M.R.S.A. § 1803(3).

[¶ 30] Each of these requirements provides safeguards against unwarranted intrusions into an intact family’s life. The first requirement, that the grandparents demonstrate standing before they may litigate their claim, provides protection against the expense, stress, and pain of litigation, unless and until the grandparents have convinced the court that they are among those grandparents who may pursue visits under the Act. 19-A M.R.S.A. §§ 1803(1), 1803(2)(A)-1803(2)(C). Trial courts must be vigilant in their application of this requirement in order to effectuate the Legislature’s efforts to narrowly tailor the Act to serve the compelling interest of the State. Both the plurality in Troxel and Justice Kennedy’s dissent stressed this factor, stating that “the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.’ ” Troxel, 530 U.S. at -, 120 S.Ct. at 2065 (quoting Justice Kennedy’s dissenting opinion at 530 U.S. at -, 120 S.Ct. at 2079).¹⁸

[¶ 31] The second protective aspect of the Act, the requirement that the trial court give consideration to the parent’s objection to visitation, is equally important. 19-A M.R.S.A. § 1803(2)(D). This provision gives life to the presumption that the parents are acting in the best interests of their child. See Troxel, 530 U.S. at -, 120 S.Ct. at 2061 (citing Parham, 442 U.S. at 602, 99 S.Ct. 2493). The court may not simply consider the best interests of the child, but must also consider and give significant weight to the parents’ position, thus preventing the court from intervening in a fit parent’s decision making simply on a best interests basis. See id. 530 U.S. at -, 120 S.Ct. at 2062.

[¶ 32] The third protection provides similar limits on the court’s authority, precluding the court from awarding visits or access to grandparents unless the court finds that those visits would not “significantly interfere” with the parent-child relationship or with the parent’s rightful authority over the child. 19-A M.R.S.A. § 1803(3). Again, the court must focus its attention, not solely on the determination of the best interests of the child, but also on how the visitation would affect the parents’ relationship with that child. Id. If the court determines that visits with a grandparent will significantly interfere with the parent-child relationship, that determination precludes any further intrusion into the parent’s decision. See id.

E. Conclusion

[¶ 33] We conclude therefore that where the grandparents have acted as the children’s parents for significant periods of time, the Grandparents Visitation Act serves a compelling state interest in addressing the children’s relationship with the people who have cared for them as parents. Because the Act is narrowly tailored to serve that compelling interest, it may be applied in this case without violating the constitutional rights of the parents.

[¶ 34] Accordingly, we must vacate the judgment of the District Court. We note with approval the District Court’s effort to avoid further delays in this matter by finding the facts and entering a visitation order that could be effectuated in the event that our constitutional analysis differed from that of the court. Our conclusion that the statute can be applied constitutionally on the facts before us is not determinative, however, on the appropriateness of visitation itself. Given the need for a careful application of the restrictions of the Act and the passage of time since the entry of the court’s judgment, we remand the matter to the trial court for further hearing.

The entry is:

Judgment vacated. Remanded to the Superior Court with instructions to remand to the District Court for further proceedings consistent with the opinion herein.

1 . The District Court originally found that 19 M.R.S.A. §§ 1001-1004 (Supp.1995-96) was unconstitutional. This statute was repealed and replaced by 19-A M.R.S.A. §§ 1801-1805 (1998). The Superior Court remanded the case to the District Court for a determination of whether the recodification affected its legal analysis. The District Court found no change in the revised Grandparents Visitation Act that would alter its decision, and thus, we review the Act as it exists today.

2 . The trial court’s judgment contains substantial findings of fact which the parties do not dispute. Our recitation of the facts is drawn from those findings.

3 . Neither party made an argument concerning the applicability of the Maine Constitution to the constitutional validity of the Act, and therefore, we do not address this issue on appeal. Berg v. Bragdon, 1997 ME 129, ¶ 9, 695 A.2d 1212, 1214 (holding that an issue is waived if it is not raised or preserved by the parties). See Me. Const, art. I, § 6-A.

4 . Part of the inordinate delay in the Superior Court was occasioned by a failure to comply with the briefing schedule and by a remand to permit the District Court to determine whether a recodification of the Act impacted its legal analysis. See P.L.1995, ch. 694, § B-2 (effective date October 1, 1997).

5 . The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. As one judge has observed:

What is best for children depends upon values and norms upon which reasonable people differ. Broad room for debate means a broad and unpredictable array of possible outcomes in any custody contest. That fact encourages prolonged and expensive litigation and "strategic behaviors” of the parents, neither of which usually benefits children.

Honorable John C. Sheldon, Anticipating the American Law Institute's Principles of the Law of Family Dissolution, 14 Me. B.J. 18, 25 (1999) (citations omitted).

6 . In addition to a significantly different statutory framework, the facts at issue in Troxel were very different from those before us. The Troxel Court was faced with a parent who had agreed to allow the grandparents, the parents of her deceased husband, to visit with her children. Troxel v. Granville, 530 U.S. -, -, 120 S.Ct. 2054, 2061-63, 147 L.Ed.2d 49 (2000). The paternal grandparents filed a visitation petition "soon after the death [by suicide] of their son.” Id. 530 U.S. at-, 120 S.Ct. at 2061.

7 .The plurality opinion and Justices Thomas and Stevens expressly recognized that parents have a "fundamental right” to the care and custody of their children. Troxel, 530 U.S. at -, -, 120 S.Ct. at 2060, 2068 (Thomas, J., concurring), 530 U.S. at -, 120 S.Ct. at 2071 (Stevens, J., dissenting). In recognition of this “fundamental right,” Justice Thomas opined that the statute could not survive analysis in accordance with the strict scrutiny standard of review. Id. 530 U.S. at-, 120 S.Ct. at 2068 (Thomas, J., concurring). Justices Souter and Kennedy recognized that parents have a constitutional right protected by the Due Process Clause. Id. 530 U.S. at -, 120 S.Ct. at 2066 (Souter, J., concurring), 530 U.S. at -, 120 S.Ct. at 2076 (Kennedy, J., dissenting). Justice Souter voted to affirm on the basis that the statute "sweeps too broadly and is unconstitutional on its face.” Id. 530 U.S. at-, 120 S.Ct. at 2066 (Souter, J., concurring).

8 . We think it also significant that the Troxel Court gave particular notice to the expansive reading of the statute by the Washington Supreme Court, noting that the "Washington Supreme Court had the opportunity to give [the statute] a narrower reading, but it declined to do so.” Troxel, 530 U.S. at -, 120 S.Ct. at 2061 (citation omitted). In recognition of the rapidly changing face of Maine families, we proceed with caution in this developing area of family law and refrain from announcing sweeping statements of constitutionality.

9 . Although the Act's constitutionality has been previously argued to us, we declined to consider that claim because it was not properly preserved for review. Berg, 1997 ME 129, ¶ 10, 695 A.2d at 1215.

10 . Section 1803 reads as follows in its entirety:

§ 1803. Petition

1. Standing to petition for visitation rights. A grandparent of a minor child may petition the court for reasonable rights of visitation or access if:

A. At least one of the child’s parents or legal guardians has died;

B. There is a sufficient existing relationship between the grandparent and the child; or

C. When a sufficient existing relationship between the grandparent and the child does not exist, a sufficient effort to establish one has been made.

2. Procedure. The following procedures apply to petitions for rights of visitation or access under subsection 1, paragraph B or C.

A. The grandparent must file with the petition for rights of visitation or access an affidavit alleging a sufficient existing relationship with the child, or that sufficient efforts have been made to establish a relationship with the child. When the petition and accompanying affidavit are filed with the court, the grandparent shall serve a copy of both on at least one of the parents or legal guardians of the child.

B. The parent or legal guardian of the child may file an affidavit in response to the grandparent’s petition and accompanying affidavit. When the affidavit in response is filed with the court, the parent or legal guardian shall deliver a copy to the grandparent.

C. The court shall determine on the basis of the petition and the affidavit whether it is more likely than not that there is a sufficient existing relationship or, if a sufficient relationship does not exist, that a sufficient effort to establish one has been made.

D.If the court’s determination under paragraph C is in the affirmative, the court shall hold a hearing on the grandparent’s petition for reasonable rights of visitation or access and shall consider any objections the parents or legal guardians may have concerning the award of rights of visitation or access to the grandparent. The standard for the award of reasonable rights of visitation or access is provided in subsection 3.

3.Best interest of the child. The court may grant a grandparent reasonable rights of visitation or access to a minor child upon finding that rights of visitation or access are in the best interest of the child and would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child. In applying this standard, the court shall consider the following factors:

A. The age of the child;

B. The relationship of the child with the child’s grandparents, including the amount of previous contact;

C. The preference of the child, if old enough to express a meaningful preference;

D. The duration and adequacy of the child’s current living arrangements and the desirability of maintaining continuity;

E. The stability of any proposed living arrangements for the child;

F. The motivation of the parties involved and their capacities to give the child love, affection and guidance;

G. The child’s adjustment to the child’s present home, school and community;

Hi. The capacity of the parent and grandparent to cooperate or to learn to cooperate in child care;

I. Methods of assisting cooperation and resolving disputes and each person’s willingness to use those methods; and

J. Any other factor having a reasonable bearing on the physical and psychological well-being of the child.

4. Modification or termination. The court may modify or terminate any rights granted under this section as circumstances require. Modification or termination of rights must be consistent with this section.

5. Enforcement. The court may issue any orders necessary to enforce orders issued under this section or to protect the rights of parties.

6. Costs and fees. The court may award costs, including reasonable attorney’s fees, for defending or prosecuting actions under this chapter.

19-A M.R.S.A. § 1803 (1998).

11 . Although Keiko and Roman both spent years in the care of the Rideouts, their sister Mariah has spent very little time with her grandparents. The parties have stipulated, however, that the children are very close and should be treated identically for purposes of the Act. Therefore, all three of the children are treated as if they have the same "sufficient existing relationship” with their grandparents.

12 . Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (stating that the liberty of parents includes the right to direct the upbringing of their children), Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (holding that the liberty protected under the Due Process Clause includes the right of parents to direct the upbringing and control the education of their children). See, e.g., Osier v. Osier, 410 A.2d 1027, 1029 (Me.1980) (recognizing parents’ "fundamental right” to the “care and custody” of their children); Danforth v. State Dep’t of Health & Welfare, 303 A.2d 794, 797 (Me.1973) (discussing the natural and fundamental rights of parents to the custody of their children).

13 . See, e.g., Connecticut v. Doehr, 501 U.S. 1, 10-11, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) (noting that prejudgment remedy statutes enable a party to utilize state procedures with the "overt, significant assistance of state officials,” thereby involving state action substantial enough to implicate the Due Process Clause); see also Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 85, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 941, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

14 . The State's authority over parental decisions is well established in certain areas, such as health requirements, including immunization needs, 20-A M.R.S.A. § 6354 (1993), education requirements, including a qualified schooling plan, 20-A M.R.S.A. § 5001-A (1993), and safety requirements, addressed in the Child and Family Services and Child Protection Act, 22 M.R.S.A. §§ 4001-4093 (1992 & Supp.1999). See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 29-30, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (upholding state’s compelling interest in compulsory vaccination laws).

15 . In fact, the concept that the State may not intervene in family life merely on the basis of a best interest determination is so well established that we have explicitly directed trial courts not to reach the best interest prong in termination of parental rights cases until the State has made a showing of parental unfitness based on one of four statutory bases for termination. See In re Ashley A., 679 A.2d 86, 89 (Me.1996). Unless the court has found the presence of one of those "harm” factors, it may not even consider the best interests of the child. See In re Leona T., 609 A.2d 1157, 1158 (Me.1992); see also Smith v. Org. of Foster Families, 431 U.S. 816, 862-63, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (Stewart, J., concurring) ("If a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest, I should have little doubt that the State would have intruded im-permissibly on 'the private realm of family life which the state cannot enter.’ ” (citation omitted)).

16 . Contrary to the assertions of our colleagues in the Concurrence, any “confluence of constitutional rights” cannot include the grandparents as separate holders of such rights. Grandparents simply do not have a general common law or constitutional right of access to their grandchildren. Indeed, it was the lack of any legal authority for securing the court's assistance in obtaining visits between grandparents and their grandchildren that led the Legislature to enact the very statute before us today. "As a general matter ... contemporary state-court decisions acknowledge that ‘(Historically, grandparents had no legal right of visitation.’ ” Troxel, 530 U.S. at -, 120 S.Ct. at 2077 (Kennedy, J. dissenting) (citation omitted). Id. 530 U.S. at -, 120 S.Ct. at 2061; Conservatorship of Justin R., 662 A.2d 232, 234-35 (Me.1995) (affirming a denial of the grandparent’s guardianship petition in the absence of parental unfitness); Stanley v. Penley, 142 Me. 78, 46 A.2d 710, 712 (1946) (declining to award custody of children to maternal grandparents when father was fit and present).

Rather, grandparents’ rights, if any, stem derivatively from the "recognition ... that children should have the opportunity to benefit from relationships with statutorily specified persons — for example, their grandparents.” Troxel, 530 U.S. at-, 120 S.Ct. at 2059 (emphasis added). "Because grandparents and other relatives undertake duties of a parental nature in many households. States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties.” Id. (emphasis added). Thus, although a grandparent can and should be a positive influence in a child’s life, the biological relationship alone does not provide a basis for a legally enforceable interest in a child whose parents are present and fit, see In re Sterling N., 673 A.2d 1312, 1314-15 (Me.1996), and whose relationship with the grandparent is not of a "parental nature,” see Troxel, 530 U.S. at -, 120 S.Ct. at 2059.

17 . Because we address only the facts before us, we do not determine whether the State would have a compelling interest in circumstances where the grandparents assert a different type of "sufficient relationship.” 19-A M.R.S.A. § 1803(1)(B). Ordinarily, the State's interest in parents' childcare decisions is merely "de minimis” and does not provide a compelling basis for state intervention. See Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Stanley v. Illinois, 405 U.S. 645, 657-58, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

18 . The Maine judiciary has been sufficiently concerned about the detrimental effects litigation has on families in turmoil that a Commission was formed to seek alternatives to litigated resolutions. See Sumner Bernstein, Nonadversarial Administrative Forum Report, 11 Me. B.J. 366 (1996); see also Dana E. Prescott, Parental Conflict and the Appointment of Referees in Child Custody Cases, 15 Me. B.J. 44 (2000) ("One of the daunting challenges facing the legal system at the end of the millennium is to find effective ways to protect children from the chaos and conflict created by feuding parents in custody cases."). Indeed, as the Maine Commission on Gender, Justice, and the Courts concluded in a recent report, "[rjesolution of custody disputes through the adversarial process is, among other things, damaging to the psychological well-being of children and parents.” Judicial Branch Performance Council, Report on the Implementation of the Recommendations of the Maine Commission on Gender, Justice, and the Courts 9 (2000).