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Roth v. Weston, No. SC 16565 = (Conn.=20 01/29/2002)

[1]      THE SUPREME COURT OF THE STATE OF = CONNECTICUT

[2]      SC 16565

[3]      2002.CT.0000054 = <http://www.versuslaw.com>

[5]      MINDY ROTH ET AL.
v.
STAN = WESTON

[6]      Robert A. Fuller, with whom were Karen A. Stansbury and, on the = brief,=20 Richard J. Fricke, for the appellant (defendant). G. Randall = Avery, for=20 the appellees (plaintiffs).

[7]      Sullivan, C. J., and Borden, Katz, Palmer and Zarella,=20 Js.

[8]      The opinion of the court was delivered by: Katz, = J.

[9]      Argued September 26, 2001

[10]     Opinion

[11]     The defendant, Stan Weston, appeals from the judgment of the = trial=20 court granting an application for visitation with the defendant's = two=20 minor children to the plaintiffs, Mindy Roth and Donna Campbell,=20 respectively the children's maternal grandmother and maternal = aunt,=20 pursuant to General Statutes =C2=A7 46b-59. *fn1 The defendant raised several issues in his = appeal to=20 the Appellate Court. *fn2 Wetransferred the appeal to this court = pursuant to=20 Practice Book =C2=A7 65-1 and General Statutes =C2=A7 51-199 (c) = to address an=20 important issue of first impression, namely, the constitutionality = of =C2=A7=20 46b-59 under the due process clause of the fourteenth amendment to = the=20 United States constitution and article first, =C2=A7 8, of the = Connecticut=20 constitution. *fn3 The defendant claims that, in light of the = United=20 States Supreme Court's recent decision in Troxel v. Granville, 530 = U.S.=20 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), =C2=A7 46b-59 is = either facially=20 unconstitutional or unconstitutional as applied to the facts of = the=20 present case. We conclude that the statute is unconstitutional as = applied=20 to the extent that the trial court, pursuant to the statute, = permitted=20 third party visitation contrary to the desires of a fit parent and = in the=20 absence of any allegation and proof by clear and convincing = evidence that=20 the children would suffer actual, significant harm if deprived of = the=20 visitation. Accordingly, we reverse the judgment of the trial = court=20 ordering visitation.

[12]     The record discloses the following undisputed facts. The = plaintiffs=20 filed a complaint in the trial court seeking visitation with the=20 defendant's children in March, 2000, three months after the = defendant's=20 wife had committed suicide. *fn4 The defendant had refused to permit any = contact=20 between the plaintiffs and his children during the months = following his=20 wife's death. *fn5 The plaintiffs' complaint alleged that the = family unit=20 had been disrupted by the death of the children's mother and = therefore was=20 no longer intact. The plaintiffs further alleged that visitation = was in=20 the best interest of the children. They did not, however contend = that the=20 defendant was in any way an unfit parent. At the time the = plaintiffs filed=20 the complaint, they also filed a motion for visitation pendente = lite and a=20 motion for a referral to the family relations division of the = Superior=20 Court. The trial court granted the plaintiffs' motions, and = appointed a=20 guardian ad litem for the children. Pursuant to the trial court's = order,=20 the guardian ad litem scheduled and supervised visits between the=20 defendant's children and the plaintiffs at her office. The = defendant's=20 children were ages two and four at the time the action was = commenced; they=20 were ages three and five at the time of the = trial.

[13]     At trial, the defendant argued that any visitation with Roth = should be=20 supervised and that Campbell should be denied visitation = altogether. The=20 defendant objected to unsupervised visits with Roth because he = contended=20 that, based on her physical condition and her inability to drive = or read,=20 she would be unable to act in emergency situations. In addition, = the=20 defendant objected to visitation with either plaintiff because he = believed=20 that their morals, values and ethics were inconsistent with his = own and=20 those that he wished to instill in his children. Specifically, the = defendant noted that, many years ago, Roth voluntarily had placed = three of=20 her own young children, including the defendant's wife, in foster = care=20 with the department of children and families. Roth's children had = remained=20 in foster care until they were seventeen years old. Campbell had = been=20 involved in pornographic films and had worked as a nude dancer at = various=20 adult clubs between 1990 and 1995. The defendant was concerned = that it=20 would be detrimental to his children should they learn about = Campbell's=20 past activities and that Campbell continued to promote such = activities.=20 The defendant testified that he was also concerned that, should = Roth be=20 granted unsupervised visitation, she would not prevent Campbell = from=20 having contact with the children.

[14]     The trial court made the following findings of fact. Both = plaintiffs=20 had established loving and responsible relationships with the = defendant's=20 children throughout their lives. During the two years preceding = the death=20 of the defendant's wife, Roth had visited her daughter and the = children=20 two to three times per week. Roth assisted her daughter in caring = for the=20 children by making meals, and washing and ironing the children's = clothes.=20 She babysat for the children, and occasionally had them sleep over = at her=20 house while their mother or father were away. Campbell also had = been close=20 to her sister and the children during the two years preceding her = sister's=20 death. Campbell tried to contact her sister each day, knowing that = her=20 sister was suffering from mental illness, and also assisted in = caring for=20 the children. Campbell purchased furniture and helped prepare a = nursery=20 for the children.

[15]     The trial court next addressed each of the defendant's = objections to=20 visitation. With respect to the defendant's concerns about Roth's=20 unsupervised visitation, the court found Roth to be ''a capable = and=20 hard-working person without any disabilities.'' In support of this = finding, the trial court noted that Roth had been working at a = full-time=20 position caring for a person suffering from Alzheimer's disease. = With=20 respect to the defendant's objection to any visitation with = Campbell, the=20 court found that Campbell had ''reformed from her previous = lifestyle . . .=20 [and did] not pose any danger to [the] children because she had = changed=20 her ways . . . .'' The trial court noted that Campbell had = obtained a real=20 estate broker's license in 1996 and had worked successfully in = that field=20 for the subsequent three years. Moreover, she had received a = bachelor's=20 degree in economics from Fairfield University in 1999. The court = noted=20 that Campbell should be commended, rather than condemned, for the = steps=20 she had taken to change her life.

[16]     The trial court also cited the testimony of Campbell's sister, = Kelly=20 Campbell Allen, and the guardian ad litem's report to the court in = support=20 of unsupervised visitation. Allen had lived with the defendant and = his=20 wife for three years, and had maintained a good relationship with = the=20 defendant. Allen testified that it was her belief that the = children would=20 not be at risk should unsupervised visitation be granted. The = guardian ad=20 litem had submitted a report to the trial court recommending = unsupervised=20 visitation with both plaintiffs based upon her observations of = them during=20 visitations with the defendant's children at her office. The = guardian ad=20 litem concluded that it was imperative for the children to grow up = having=20 a relationship with their mother's family. She further noted that = the=20 defendant had demonstrated a hostile attitude toward her regarding = the=20 issue of visitation that she found contrary to the children's best = interest.

[17]     On the basis of these facts and this testimony, the trial court=20 concluded that the plaintiffs had met their burden of proof = pursuant to =C2=A7=20 46b-59 by clear and convincing evidence that it was in the = children's best=20 interest to have unsupervised visitation with both of the = plaintiffs.=20 Consequently, the court rendered judgment ordering visitation as = follows:=20 (1) unsupervised visitation with Roth for the first weekend of = each month;=20 (2) unsupervised visitation with Campbell for the third weekend of = each=20 month; (3) one week of unsupervised visitation with Roth during = the month=20 of July; and (4) one week of unsupervised visitation with Campbell = during=20 the month of August. Moreover, the trial court ordered the = defendant not=20 to relocate the children from their current residence without a = court=20 order. Finally, the trial court ordered all the parties to = participate at=20 their own cost in separate counseling sessions with a = court-appointed=20 psychologist until such time as the psychologist determined that=20 counseling was no longer necessary. This appeal = followed.

[18]     I.

[19]     The dispositive issue on appeal is whether, in light of the = United=20 States Supreme Court decision in Troxel, =C2=A7 46b-59, as = interpreted by this=20 court in Castagno v. Wholean, 239 Conn. 336, 339-52, 684 A.2d 1181 = (1996),=20 is unconstitutional, either facially or as applied in this case.=20 Specifically, the defendant claims that, despite the judicial = gloss we=20 placed upon =C2=A7 46b-59 in Castagno, the statute nevertheless = violates the=20 rights of parents to rear their children under the due process = clause of=20 the fourteenth amendment to the federal constitution and article = first, =C2=A7=20 8, of the Connecticut constitution. *fn6 He further claims that even if the statute = survives=20 his facial attack, it is unconstitutional as applied by the trial = court to=20 the extent that it permits third party visitation contrary to the = desires=20 of a fit parent. Tied to this challenge is the threshold issue of=20 jurisdiction. Accordingly, we resolve the claims = together.

[20]     A.

[21]     We begin with a discussion of the two cases that inform the=20 disposition of this appeal. In Castagno v. Wholean, supra, 239 = Conn. 353,=20 we affirmed the trial court's judgment dismissing an action by = maternal=20 grandparents seeking visitation rights with the defendants' minor=20 children. We concluded that the trial court did not have subject = matter=20 jurisdiction to entertain the petition because the grandchildren = and their=20 parents were not involved in any case or controversy then before = the court=20 and because there was no claim that the family unit was no longer = intact.=20 Id., 352-53. Although =C2=A7 46b-59 did not include specific = language imposing=20 any threshold requirement, we recognized that a literal reading = would=20 place the statute in constitutional jeopardy because of the = protection=20 traditionally afforded to a parent's right to family integrity, = including=20 the right to the care, custody, companionship and management of = one's=20 children and the freedom of personal choice in matters of family = life.=20 Id., 340. We further recognized that any statute implicating such = a=20 fundamental right must be strictly scrutinized. *fn7 Id., 344. As Castagno raised a = jurisdictional=20 question, the precise challenge was whether the statute was drawn = as=20 narrowly as possible to achieve the legislature's purpose. Id.,=20 351-52.

[22]     Using established rules of statutory construction, we went = beyond the=20 face of the statute to determine whether it could be construed to = achieve=20 the legislature's intention and still safeguard this fundamental = right.=20 Looking to the broader statutory scheme, specifically to related=20 provisions regarding third party visitation, General Statutes = =C2=A7=C2=A7 46b-56 *fn8 and 46b-57, *fn9 we interpreted the statute so as to = incorporate=20 threshold requirements similar to those of =C2=A7=C2=A7 46b-56 and = 46b-57 that=20 ''would allow =C2=A7 46b-59 to be invoked only in those instances = in which the=20 integrity of the family already has been disrupted. Because =C2=A7 = 46b-59=20 operates in the delicate realm of parent-child relationships, we = prefer a=20 construction that minimizes state intrusion.'' Id., 346. = Accordingly, we=20 construed =C2=A7 46b-59 ''to afford the trial court jurisdiction = to entertain a=20 petition for visitation only when the minor child's family life = has been=20 disrupted in a manner analogous to the situations [included = within] =C2=A7=C2=A7=20 46b-56 and 46b-57.'' Id., 352.

[23]     In deciding Castagno, we also relied upon legislative history = that=20 reflected the legislative intent ''to provide access to the courts = for=20 grandparents whose grandchildren's families have been disrupted in = a=20 manner similar to that addressed by =C2=A7=C2=A7 46b-56 and = 46b-57, but in which the=20 courts have not yet become involved.'' Id., 350. Accordingly, = although we=20 did not state precisely what circumstances would suffice to invoke = jurisdiction under =C2=A7 46b-59, we added that, ''[a]lthough the = death of a=20 parent or the de facto separation of the parents may allow an = action,=20 there may be other times when an action is also warranted, such as = when=20 there has been a good faith allegation by a third party of abuse = or=20 neglect.'' (Emphasis added.) Id., 352.

[24]     Thereafter, in Troxel v. Granville, supra, 530 U.S. 57, the = United=20 States Supreme Court reviewed a decision by the Washington Supreme = Court=20 holding its visitation statute facially unconstitutional. That = statute=20 provides that ''[a]ny person may petition the court for visitation = rights=20 at any time including, but not limited to, custody proceedings. = The court=20 may order visitation rights for any person when visitation may = serve the=20 best interests of the child whether or not there has been any = change of=20 circumstances.'' Wash. Rev. Code =C2=A7 26.10.160 (3) (2000). The = trial court=20 in Troxel awarded visitation to the paternal grandparents after = their son=20 had committed suicide and the children's mother limited their = access to=20 the children. The Washington Supreme Court had held that a state=20 constitutionally may interfere with the fundamental right of = parents to=20 rear their children only to prevent harm or potential harm to a = child. In=20 re Custody of Smith, 137 Wash. 2d 1, 19-20, 969 P.2d 21 (1998), = aff'd sub=20 nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. = 2d 49=20 (2000). Section 26.10.160 (3) of the Washington Code failed to = meet that=20 standard because it required no threshold showing of harm. In re = Custody=20 of Smith, supra, 15-20. Moreover, by allowing '' 'any person' to = petition=20 for forced visitation of a child at 'any time' with the only = requirement=20 being that the visitation serve the best interest of the child,''=20 according to the court, the visitation statute swept too broadly. = Id., 20.=20 Specifically, the statute authorized a contested visitation order = at the=20 behest of any person at any time subject only to a best interests = of the=20 child standard. Additionally, a parent's decision that visitation = would=20 not be in the child's best interest would be accorded no = deference, and=20 the best interest determination would rest solely in the = discretion of the=20 judge, whose assessment would necessarily prevail regardless of = the=20 parent's estimation of the child's best interests. Id., 21. = Essentially,=20 the decisional framework authorized by the statute and employed by = the=20 trial court directly contravened the traditional presumption that = a fit=20 parent acts in the best interest of his or her child. In = conclusion, the=20 Washington Supreme Court announced a categorical rule that third = parties=20 who seek visitation always must prove that the denial of = visitation would=20 harm the child. Id., 20. Short of preventing harm to the child, = the best=20 interests of the child were ''insufficient to serve as a = compelling state=20 interest overruling a parent's fundamental rights.'' Id. The court = reasoned that because the constitution permits interference with = the=20 fundamental rights of parents to rear children only to prevent = harm or=20 potential harm, the statute was facially unconstitutional.=20 Id.

[25]     Following its grant of certification, a plurality of the United = States=20 Supreme Court, hesitant to conclude that a state statute = addressing=20 nonparental visitation was per se unconstitutional, held the = statute=20 unconstitutional as applied. Troxel v. Granville, supra, 530 U.S. = 67.=20 Despite concerns about the ''breathtakingly broad'' language of = the=20 statute, the plurality explained that ''[b]ecause much state-court = adjudication in this context occurs on a case-by-case basis, we = would be=20 hesitant to hold that specific nonparental visitation statutes = violate the=20 Due Process Clause as a per se matter.'' Id., 73. The court began = with a=20 discussion of the long recognized premise that a parent's interest = in the=20 nurture, upbringing, companionship, care, and custody of children = are=20 generally protected by the due process clause of the fourteenth = amendment.=20 *fn10 Id., 65. Justice Kennedy cautioned in his = dissent,=20 however, that, although this principle exists in broad = formulation, courts=20 ''must use considerable restraint, including careful adherence to = the=20 incremental instruction given by the precise facts of particular = cases, as=20 they seek to give further and more precise definition to the = right.'' Id.,=20 95-96.

[26]     Turning to the issue of what considerations were sufficiently=20 important to allow a court to impose visitation over parental = objection,=20 the plurality of the United States Supreme Court expressly = declined to=20 consider the primary constitutional question passed upon by the = Washington=20 Supreme Court: whether the due process clause requires all = nonparental=20 visitation statutes to include a showing of harm or potential harm = to the=20 child as a condition precedent to granting visitation. Id., 73.=20 Accordingly, the court did not define the precise scope of the = parental=20 due process right in the visitation context. Id. Instead, the = plurality=20 articulated the factors in that particular case that weighed = against the=20 constitutional application of the statutory requirement of the = best=20 interest of the child. Id., 67-72. First,there had been no finding = of=20 parental unfitness to defeat the traditional ''presumption that = fit=20 parents act in the best interests of their children.'' Id., 68. = Moreover,=20 the trial court had failed to accord any special weight to the = parent's=20 determination of her own child's best interests. Id., 69. Finally, = the=20 court noted that there had been no allegation that visitation had = been=20 denied entirely. Id., 71.

[27]     The court decided, in essence, that ''the Due Process Clause = does not=20 permit a State to infringe on the fundamental right of parents to = make=20 child rearing decisions simply because a state judge believes a = 'better'=20 decision could be made.'' Id., 72-73. Because neither the = Washington=20 nonparental visitation statute nor the trial court in that case = required=20 anything more, the plurality of the court held that the Washington = statute, as applied in the case, was unconstitutional. Id.,=20 73.

[28]     B.

[29]     Against the background of these two cases, we revisit =C2=A7 = 46b-59 to=20 decide whether, as interpreted by the Castagno decision, the = statute can=20 withstand a facial constitutional challenge. In Castagno, we = incorporated=20 a threshold jurisdictional requirement into =C2=A7 46b-59 that = would permit the=20 trial court to entertain a petition for visitation only when the = family=20 life of the minor child had been disrupted either by state = intervention=20 analogous to the situations included within =C2=A7=C2=A7 46b-56 = and 46b-57 or ''in a=20 manner similar to that addressed by =C2=A7=C2=A7 46b-56 and = 46b-57, but in which the=20 courts have not yet become involved.'' Castagno v. Wholean, supra, = 239=20 Conn. 350. Although this court's interpretation of =C2=A7 46b-59 = was firmly=20 rooted in the legislative history, and was not merely ''a strained = attempt=20 to salvage an obviously unsalvageable statutory scheme''; Shawmut = Bank,=20 N.A. v. Valley Farms, 222 Conn. 361, 369-70, 610 A.2d 652, cert.=20 dismissed, 505 U.S. 1247, 113 S. Ct. 28, 120 L. Ed. 2d 952 (1992); = we are=20 now constrained to conclude that our attempt was = imperfect.

[30]     We reach this conclusion because it is now apparent that this = judicial=20 gloss does not adequately acknowledge the status of parents' = interest in=20 the care, custody and control of their children, as ''perhaps the = oldest=20 of the fundamental liberty interests recognized by [the Supreme] = Court.''=20 Troxel v. Granville, supra, 530 U.S. 65. Building on a long line = of cases=20 acknowledging the fundamental right of parents to raise their = children as=20 they see fit, Troxel teaches that courts must presume that ''fit = parents=20 act in the best interests of their children,'' and that ''so long = as a=20 parent adequately cares for his or her children (i.e., is fit), = there will=20 normally be no reason for the State to inject itself into the = private=20 realm of the family to further question the ability of that parent = to make=20 the best decisions concerning the rearing of that parent's = children.''=20 Id., 68-69. Moreover, Troxel confirms that among those interests = lying at=20 the core of a parent's right to care for his or her own children = is the=20 right to control their associations. Id. The essence of parenthood = is the=20 companionship of the child and the right to make decisions = regarding his=20 or her care, control, education, health, religion and association. = Pierce=20 v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 69 L. = Ed. 1070=20 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. = Ed.=20 1042 (1923) (noting that liberty interest includes rights of = parents to=20 establish home, bring up children and control education). = Furthermore,=20 Troxel confirms that the family integrity is the core element upon = which=20 modern civilization is founded and that the safeguarding of = familial bonds=20 is an innate concomitant of the protective status accorded the = family as a=20 societal institution. Troxel v. Granville, supra, = 65-66.

[31]     Therefore, on the basis of our reexamination of the statute,=20 juxtaposed with the considerations raised in Troxel, we conclude = that the=20 threshold requirement articulated in Castagno fails to protect = adequately=20 the fundamental right to rear one's child and the right to family = privacy.=20 Accordingly, the holding in Castagno that the trial court has = jurisdiction=20 to entertain a petition for visitation when the family life of the = minor=20 child has been disrupted in a manner analogous to the situations = included=20 within =C2=A7=C2=A7 46b-56 and 46b-57 is hereby overruled. We now = consider,=20 therefore, what statutory parameters would be consistent with both = the=20 constitutional interest at stake and our legislature's intent to = limit the=20 court's jurisdiction over nonparental = visitation.

[32]     1.

[33]     We begin with the standard of review applicable to this = legislative=20 intrusion. Despite its recognition of a parent's liberty interest = in the=20 care, custody and control of his or her children in general and in = visitation matters in specific, the court in Troxel abstained from = applying the strict standard of review typically utilized when a = state=20 action infringes on enjoyment of a fundamental right. Indeed, = courts and=20 commentators alike have noted that the Troxel plurality did not = specify=20 the appropriate level of scrutiny to apply to statutes that = infringe on=20 the parent-child relationship. See, e.g., id., 80 (Thomas, J., = concurring)=20 (noting that plurality failed to articulate appropriate standard = of review=20 but stating that he would apply strict scrutiny); J.S. &E.S. = v. D.W.=20 & J.W., Docket No. 2990431, 2001 WL 470254, *6 (Ala. Civ. App. = May 4,=20 2001); In re Marriage of Harris, Docket No. D036144, 2001 WL = 1113062, *6=20 (Cal. App. September 24, 2001); Santi v. Santi, 633 N.W.2d 312, = 317 (Iowa=20 2001); B. White, note, ''Muddling Through the Murky Waters of = Troxel: Will=20 Grandparent Visitation Statutes Sink or Swim?,'' 39 Fam. &=20 Conciliation Cts. Rev. 104, 108 (2001). Nevertheless, we conclude = that,=20 consistent with the court's determination that a parent's interest = in the=20 care, custody and control over his or her children is ''perhaps = one of the=20 oldest of the fundamental liberty interests recognized by [the] = Court'';=20 Troxel v. Granville, supra, 530 U.S. 65; the application of the = strict=20 scrutiny test is required to any infringement it may suffer. = Castagno v.=20 Wholean, supra, 239 Conn. 344 (''The right to family autonomy and = privacy=20 acknowledged in the common law has been recognized as so = fundamental as to=20 merit constitutional protection. Consequently, any legislation = affecting=20 it is strictly scrutinized. See Wisconsin v. Yoder, 406 U.S. 205, = 220-21,=20 92 S. Ct. 1526, 32 L. Ed. 2d 15 [1972] . . . .'' [Citations = omitted.]);=20 Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982) = (''[w]hen a=20 statutory classification . . . affects a fundamental personal = right, the=20 statute is subject to strict scrutiny and is justified only by a=20 compelling state interest''). We, therefore, consider what = jurisdictional=20 and substantive requirements would ensure that the statute is = narrowly=20 tailored to achieve a compelling interest.

[34]     2.

[35]     We first examine the jurisdictional prerequisite of standing, = that is,=20 which persons may intrude upon a parent's autonomy. ''Standing is = . . . a=20 practical concept designed to ensure that courts and parties are = not vexed=20 by suits brought to vindicate non-justiciable interests and that = judicial=20 decisions which may affect the rights of others are forged in hot=20 controversy, with each view fairly and vigorously represented. . . = . These=20 two objectives are ordinarily held to have been met when a = complainant=20 makes a colorable claim of direct injury [that the complainant] = has=20 suffered or is likely to suffer, in an individual or = representative=20 capacity. Such a personal stake in the outcome of the controversy = . . .=20 provides the requisite assurance of concrete adverseness and = diligent=20 advocacy.'' (Internal quotation marks omitted.) Connecticut = Associated=20 Builders & Contractors v. Hartford, 251 Conn. 169, 178, 740 = A.2d 813=20 (1999). ''If a party is found to lack standing, the court is = without=20 subject matter jurisdiction to determine the cause.'' (Internal = quotation=20 marks omitted.) Weidenbacher v. Duclos, 234 Conn. 51, 54 n.4, 661 = A.2d 988=20 (1995).

[36]     Where fundamental rights are implicated, such as in the present = case,=20 standing serves a function beyond a mere jurisdictional = prerequisite. It=20 also ensures that the statutory scheme is narrowly tailored so = that a=20 person's personal affairs are not needlessly intruded upon and = interrupted=20 by the trauma of litigation. See Rideout v. Riendeau, 761 A.2d = 291, 302=20 (Me. 2000) (sufficient safeguards in standing requirements ensure = that=20 statute narrowly tailored because they provide ''protection = against the=20 expense, stress, and pain of litigation'').

[37]     Consequently, consistent with our strict scrutiny analysis, we=20 conclude that the standing requirements pursuant to =C2=A7 46b-59 = must be drawn=20 narrowly.

[38]     We know from prior analysis that =C2=A7 46b-59, as initially = enacted; see=20 Public Acts 1978, No. 78-69; permitted only grandparents to = petition for=20 visitation. Castagno v. Wholean, supra, 239 Conn. 347-48. In 1983, = however, =C2=A7 46b59 was amended to its current form to allow = ''any person''=20 to petition for visitation, like the Washington statute at issue = in=20 Troxel. See Public Acts 1983, No. 83-95. We view the 1983 = amendment that=20 extended standing to any third person as a reflection of the = legislature's=20 recognition that persons other than parents may have substantial=20 relationships with children that warrant preservation. ''Ours is = by no=20 means a tradition limited to respect for the bonds uniting the = members of=20 the nuclear family. The tradition of uncles, aunts, cousins, and=20 especially grandparents sharing a household along with parents and = children has roots equally venerable and equally deserving of=20 constitutional recognition. . . . Even if conditions of modern = society=20 have brought about a decline in extended family households, they = have not=20 erased the accumulated wisdom of civilization, gained over the = centuries=20 and honored throughout our history that supports a larger = conception of=20 the family. . . . Decisions concerning child rearing, which Yoder, = Meyer,=20 Pierce and other cases have recognized as entitled to = constitutional=20 protection, long have been shared with grandparents or other = relatives who=20 occupy the same household--indeed who may take on major = responsibility for=20 the rearing of the children. Especially in times of adversity, = such as the=20 death of a spouse or economic need, the broader family has tended = to come=20 together for mutual sustenance and to maintain or rebuild a secure = home=20 life.'' Moore v. East Cleveland, 431 U.S. 494, 504-505, 97 S. Ct. = 1932, 52=20 L. Ed. 2d 531 (1977).

[39]     We recognize that, in many households, grandparents, as well as = people=20 who have no biological relationship with a child, undertake duties = of a=20 parental nature and that states have sought to ensure the welfare = of=20 children by protecting those relationships. Some states have done = this=20 expressly; see Minn. Stat. =C2=A7 257.022 (2000) (permitting = visitation with=20 person with whom child has established emotional ties creating = parentchild=20 relationship); Mont. Code Ann. =C2=A7 40-4-228 (2001) (same); Nev. = Rev. Stat. =C2=A7=20 125C.050 (Sup. 1999), as amended by 2001 Nev. Stat. c. 547 = (permitting=20 visitation with person with whom child has established = ''meaningful=20 relationship''); Wis. Stat. =C2=A7 767.245 (Sup. 2001) (permitting = visitation=20 with ''person who has maintained a relationship similar to a = parent-child=20 relationship''); while others have done so by judicial gloss. See = Youmans=20 v. Ramos, 429 Mass. 774, 783 n.18, 711 N.E.2d 165 (1999) (noting = that=20 Probate Court has equitable jurisdiction to award visitation to = third=20 parties despite no express statutory = authorization).

[40]     Therefore, we acknowledge that a person other than a blood = relation=20 may have established a more significant connection with a child = than the=20 one established with a grandparent or some other relative. = Conversely, we=20 recognize that being a blood relation of a child does not always = translate=20 into that relative having significant emotional ties with that = child.=20 Indeed, as =C2=A7 46b-59 implicitly recognizes, it is not = necessarily the=20 biological aspect of the relationship that provides the basis for = a=20 legally cognizable interest. Rather, it is the nature of the = relationship=20 that determines standing.

[41]     Consequently, we conclude that, in light of the presumption of=20 parental fitness under Troxel, parents should not be faced with=20 unjustified intrusions into their decision-making in the absence = of=20 specific allegations and proof of a relationship of the type = contemplated=20 herein. See Webster v. Ryan, 729 N.Y.S.2d 315, 341 (Fam. Ct. 2001) = (''the=20 Court will first conduct a standing hearing to determine if the = child does=20 have a parent-like relationship with the person with whom contact = is=20 desired''). The extension of statutory rights to persons other = than a=20 child's parents ''comes with an obvious cost.'' Troxel v. = Granville,=20 supra, 530 U.S. 64. Proof of the nature of a parent-like = relationship=20 between a person seeking visitation and the child would provide = the=20 jurisdictional safeguard necessary to prevent families from having = to=20 defend against unjustified petitions for visitation. Accordingly, = any=20 third party, including a grandparent or a great-grandparent, *fn11 seeking visitation must allege and = establish a=20 parent-like relationship as a jurisdictional threshold in order = both to=20 pass constitutional muster and to be consistent with the = legislative=20 intent.

[42]     3.

[43]     We next address the second jurisdictional factor in this = analysis,=20 that is: what the third party must allege before intrusion by way = of a=20 third party visitation petition is justified. Castagno v. Wholean, = supra,=20 239 Conn. 338-40. Specifically, we must consider what interest = would be=20 sufficiently compelling to warrant state intrusion into a parent's = decision to limit or deny visitation to a third party. We begin = with the=20 statute, which provides that an order allowing visitation ''shall = be=20 according to the court's best judgment upon the facts of the case = and=20 subject to such conditions and limitations as it deems equitable = ....=20 Inmaking, modifying or terminating such an order, the court shall = be=20 guided by the best interest of the child . . . .'' General = Statutes =C2=A7=20 46b-59. On its face, the statute ignores the presumption that = parents act=20 in the best interests of their children. Furthermore, it allows = parental=20 rights to be invaded by judges based solely upon the judge's = determination=20 that the child's best interests would be better served if the = parent=20 exercised his parental authority differently.

[44]     The constitutional issue, however, is not whether children = should have=20 the benefit of relationships with persons other than their parents = or=20 whether a judge considers that a parent is acting capriciously. In = light=20 of the compelling interest at stake, the best interests of the = child are=20 secondary to the parents' rights. Brooks v. Parkerson, 265 Ga. = 189, 194,=20 454 S.E.2d 769, cert. denied, 516 U.S. 942, 116 S. Ct. 377, 133 L. = Ed. 2d=20 301 (1995) (finding it ''irrelevant'' to constitutional analysis = that=20 visitation may be in best interest of child); Rideout v. Riendeau, = supra,=20 761 A.2d 301 (''something more than the best interest of the child = must be=20 at stake in order to establish a compelling state interest''); In = re=20 Herbst, 971 P.2d 395, 399 (Okla. 1998) (noting that court does not = reach=20 best interest analysis without showing of harm; absent harm, no = compelling=20 interest); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993) (holding = that=20 best interest of child is not compelling interest warranting state = intervention absent showing of harm). Otherwise, ''[the best = interest]=20 standard delegates to judges authority to apply their own personal = and=20 essentially unreviewable lifestyle preferences to resolving each=20 dispute.'' Rideout v. Riendeau, supra, 310.

[45]     The trial court is not better situated to determine the issue = based=20 upon its best judgment. As Troxel instructs, ''the Due Process = Clause does=20 not permit a State to infringe on the fundamental right of parents = to make=20 child rearing decisions simply because a state judge believes a = 'better'=20 decision could be made.'' Troxel v. Granville, supra, 530 U.S. = 72-73.=20 Because parenting remains a protected fundamental right, the due = process=20 clause leaves little room for states to override a parent's = decision even=20 when that parent's decision is arbitrary and neither serves nor is = motivated by the best interests of the child.

[46]     There are, however, limitations on these parental rights. Some = of=20 these limitations arise out of an appreciation of the state's long = recognized interests as parens patriae. See Reno v. Flores, 507 = U.S. 292,=20 303-304, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993); Santosky v. = Kramer, 455=20 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Parham v. = J. R.,=20 442 U.S. 584, 605, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); Prince = v.=20 Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 = (1944); see=20 also General Statutes =C2=A7 10-204a (requiring parents to = immunize children=20 prior to school enrollment); General Statutes =C2=A7=C2=A7 = 14-100a, 14-272a=20 (requiring child restraint in vehicles); General Statutes =C2=A7 = 17a-81=20 (authorizing emergency medical treatment where parent withholds = consent);=20 General Statutes =C2=A7=C2=A7 31-23, 31-24 (restricting child = labor from certain=20 occupations or workplaces); General Statutes =C2=A7 53-21a = (prohibiting parents=20 from leaving child unsupervised in public accommodation or = vehicle).=20 Furthermore, it is unquestionable that in the face of allegations = that=20 parents are unfit, the state may intrude upon a family's = integrity. Parham=20 v. J. R., supra, 603; see General Statutes =C2=A7 17a-101g = (removal of child=20 where imminent risk of harm); General Statutes =C2=A7=C2=A7 17a112 = (j), 45a-717=20 (termination of parental rights). Therefore, it is clear that a=20 requirement of an allegation such as abuse, neglect or abandonment = would=20 provide proper safeguards to prevent families from defending = against=20 unwarranted intrusions and would be tailored narrowly to protect = the=20 interest at stake. Cf. J.S. & E.S. v. D.W. & J.W., supra, = 2001 WL=20 470254, *9 (visitation statute unconstitutional as applied because = not=20 narrowly tailored without requiring showing of harm where parent = is fit);=20 Kyle O. v. Donald R., 85 Cal. App. 4th 848, 864, 102 Cal. Rptr. 2d = 476=20 (2000) (visitation statute flawed because absent allegation of = unfitness=20 of parent, statute not narrowly tailored); Santi v. Santi, supra, = 633=20 N.W.2d 320 (same).

[47]     A more difficult issue is whether the child's own complementary=20 interest in preserving relationships that serve his or her welfare = and=20 protection can also constitute a compelling interest that warrants = intruding upon the fundamental rights of parents to rear their = children.=20 See Troxel v. Granville, supra, 530 U.S. 86 (Stevens, J., = dissenting)=20 (issue of grandparent visitation is not simply ''a bipolar = struggle=20 between the parents and the State over who has final authority to=20 determine what is in a child's best interests. There is at a = minimum a=20 third individual, whose interests are implicated in every case to = which=20 the statute applies--the child.''); cf. Santosky v. Kramer, supra, = 455=20 U.S. 760 (parent's and child's interests coincide at parental = termination=20 proceeding until showing of parental unfitness). *fn12 Specifically, we consider whether = something less=20 than an allegation and proof in support of abuse, neglect or = abandonment=20 will suffice to permit an intrusion. This is the issue the = Washington=20 court faced, and which the United States Supreme Court avoided. = See In re=20 Custody of Smith, supra, 137 Wash. 2d 13-21.

[48]     We can envision circumstances in which a non-parent and a child = have=20 developed such substantial emotional ties that the denial of = visitation=20 could cause serious and immediate harm to that child. For = instance, when a=20 person has acted in a parental-type capacity for an extended = period of=20 time, becoming an integral part of the child's regular routine, = that child=20 could suffer serious harm should contact with that person be = denied or so=20 limited as to seriously disrupt that relationship. Thus, proof of = a close=20 and substantial relationship and proof of real and significant = harm should=20 visitation be denied are, in effect, two sides of the same coin. = Without=20 having established substantial, emotional ties to the child, a = petitioning=20 party could never prove that serious harm would result to the = child should=20 visitation be denied. This is as opposed to the situation in which = visitation with a third party would be in the best interests of = the child=20 or would be very beneficial. The level of harm that would result = from=20 denial of visitation in such a situation is not of the magnitude = that=20 constitutionally could justify overruling a fit parent's = visitation=20 decision. Indeed, the only level of emotional harm that could = justify=20 court intervention is one that is akin to the level of harm that = would=20 allow the state to assume custody under General Statutes = =C2=A7=C2=A7 46b-120 and=20 46b129--namely, that the child is ''neglected, uncared-for or = dependent''=20 as those terms have been defined.

[49]     We are persuaded, therefore, that an allegation, along with = proof=20 thereof, that the parent's decision regarding visitation will = cause the=20 child to suffer real and substantial emotional harm likewise = presents a=20 compelling state interest that will permit interference with = parental=20 rights, provided the petitioner has established a parentlike = relationship=20 with the child. See In re Marriage of Harris, supra, 2001 WL = 1113062, *9=20 (''[a] showing of harm is constitutionally required to justify=20 governmental interference with child rearing [under the state=20 constitution]''); Beagle v. Beagle, 678 So. 2d 1271, 1275-77 (Fla. = 1996)=20 (state can satisfy compelling interest required under state = constitution=20 when acting to prevent harm); Brooks v. Parkerson, supra, 265 Ga. = 193=20 (holding that ''state interference with parental rights to custody = and=20 control of children is permissible only where the health or = welfare of a=20 child is threatened'' under both state and federal constitutions); = In re=20 Herbst, supra, 971 P.2d 399 (''[a]bsent a showing of harm, [or = threat=20 thereof] it is not for the state to choose which associations a = family=20 must maintain and which the family is permitted to abandon''); = Hawk v.=20 Hawk, supra, 855 S.W.2d 580 (''[t]he requirement of harm is the = sole=20 protection that parents have against pervasive state interference = in the=20 parenting process'' contrary to their state constitutional right); = Williams v. Williams, 256 Va. 19, 501 S.E.2d 417, 418 (1998) = (holding that=20 for ''compelling state interest'' to exist under fourteenth = amendment,=20 justifying order of visitation over objection of child's parents, = court=20 must find actual harm to child's health or welfare without such=20 visitation); In re Custody of Smith, supra, 137 Wash. 2d 20 = (''[s]hort of=20 preventing harm to the child, the standard of 'best interest of = the child'=20 is insufficient to serve as a compelling state interest [under the = fourteenth amendment] overruling a parent's fundamental=20 rights'').

[50]     We recognize that some jurisdictions do not consider a showing = of harm=20 to the child to be constitutionally required before a third party = will be=20 afforded visitation over the parents' objections. See, e.g., = Kansas Dept.=20 of Social & Rehabilitation Services v. Paillet, 270 Kan. 646, = 658-59,=20 16 P.3d 962 (2001) (holding that due process requirements met = under=20 statute that requires presumption that fit parent acts in best = interest of=20 child and places burden to show otherwise on petitioner); Zeman v. = Stanford, 789 So. 2d 798, 804 (Miss. 2001) (noting that ''best = interest of=20 the child'' is paramount consideration); West Virginia ex rel. = Brandon L.=20 v. Moats, Docket No. 29288, 2001 WL 755136, *83 (W. Va. July 6, = 2001)=20 (concluding that two-prong standard of best interest of child and = lack of=20 substantial interference with parents' rights meets Troxel = requirements);=20 see also Rideout v. Riendeau, supra, 761 A.2d 300-301 (noting that = while=20 threat of harm would be compelling interest, state also = demonstrated=20 compelling interest in granting visitation where grandparent = functioned as=20 parent to child). We are not persuaded, however, by the reasoning = of those=20 jurisdictions. Indeed, although the plurality in Troxel avoided = the issue,=20 its prior decisions clearly reflect a tolerance for interference = with=20 parental decisions only when the health or safety of the child = will be=20 jeopardized or there exists the potential for significant social = burdens.=20 Wisconsin v. Yoder, supra, 406 U.S. 230 (exempting Amish from = state=20 compulsory education law requiring children to attend public = school until=20 age eighteen because Amish children would not be harmed by = receiving Amish=20 education); Pierce v. Society of Sisters, supra, 268 U.S. 534 = (holding=20 that state could not interfere with parents' decision to send = children to=20 private schools where decision ''not inherently harmful''); Meyer = v.=20 Nebraska, supra, 262 U.S. 403 (concluding that ''proficiency in = foreign=20 language . . . is not injurious to the health, morals or = understanding of=20 the ordinary child''); see also Stanley v. Illinois, 405 U.S. 645, = 652-53,=20 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972) (concluding that state may = not=20 presume parental unfitness and interfere with unwed father's = custody=20 rights absent showing of unfitness); Prince v. Massachusetts, = supra, 321=20 U.S. 170 (upholding conviction under child labor law of parent who = allowed=20 minor child to sell religious magazines because of legitimate = state=20 interest in laws designed to prevent ''psychological or physical = injury''=20 to child).

[51]     The family entity is the core foundation of modern civilization. = The=20 constitutionally protected interest of parents to raise their = children=20 without interference undeniably warrants deference and, absent a = powerful=20 countervailing interest, protection of the greatest possible = magnitude.=20 Lassiter v. Dept. of Social Services, 452 U.S. 18, 27, 101 S. Ct. = 2153, 68=20 L. Ed. 2d 640 (1981); Stanley v. Illinois, supra, 405 U.S. 651.=20 Consequently, interference is justified only when it can be = demonstrated=20 that there is a compelling need to protect the child from harm. In = the=20 absence of a threshold requirement of a finding of real and = substantial=20 harm to the child as a result of the denial of visitation, forced=20 intervention by a third party seeking visitation is an unwarranted = intrusion into family autonomy. Accordingly, in the absence of any = such=20 requirement of harm, =C2=A7 46b-59 does not justify interference = with parental=20 rights. *fn13

[52]     In setting forth this admittedly high hurdle, we recognize that = there=20 are often substantial benefits to a child in having close and = sustained=20 ties with extended family and those persons, while not related by = blood,=20 who take on caregiving roles. Grandparents, in particular, can = serve an=20 important role, especially after a parent dies. Brooks v. = Parkerson,=20 supra, 265 Ga. 194 (noting that ''there are . . . many instances = where the=20 grandparentgrandchild bond is beneficial to the child''); In re = Herbst,=20 supra, 971 P.2d 399 (''[t]his court recognizes that in many = families the=20 preservation of intergenerational, grandparent relationships has = value as=20 a social ideal and should be encouraged by courts as well as = social=20 institutions whenever possible''). As the court in Troxel stated, = however:=20 ''In an ideal world, parents might always seek to cultivate the = bonds=20 between grandparents and their grandchildren. Needless to say, = however,=20 our world is far from perfect, and in it the decision whether such = an=20 intergenerational relationship would be beneficial in any specific = case is=20 for the parent to make in the first instance.'' Troxel v. = Granville,=20 supra, 530 U.S. 70.

[53]     4.

[54]     The last factor to be considered is what standard of proof must = be=20 required in order for the intrusion of this nature to be = justified. When=20 constitutional issues are at stake, a heightened evidentiary = standard is=20 warranted. See Cruzan v. Director, Missouri Dept. of Health, 497 = U.S. 261,=20 282-83 and 283 n.10, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990); = Santosky=20 v. Kramer, supra, 455 U.S. 756-57; see also Miller v. Commissioner = of=20 Correction, 242 Conn. 745, 796, 700 A.2d 1108 (1997) (noting that=20 ''[c]onsistent with the heavy burden that [the clear and = convincing]=20 standard of proof imposes, courts and legislatures have employed = it in=20 constitutional, legislative and common-law contexts involving = extremely=20 significant questions of fact''). Accordingly, several states = apply a=20 clear and convincing standard of review in visitation proceedings. = See=20 Mont. Code Ann. =C2=A7 40-4-228 (2001) (clear and convincing = evidence required=20 to show natural parent has engaged in conduct contrary to = parent-child=20 relationship and that non-parent has established child-parent=20 relationship, continuation of which is in child's best interests); = Neb.=20 Rev. Stat. =C2=A7 43-1802 (2) (1998) (clear and convincing = evidence that=20 visitation will not ''adversely interfere with parent-child=20 relationship''); Nev. Rev. Stat. =C2=A7 125C.050 (Sup. 1999), as = amended by=20 2001 Nev. Stat. c. 547 (clear and convincing evidence required to = rebut=20 presumption that visitation is not in best interests of child); = R.I. Gen.=20 Laws =C2=A7 15-524.3 (a) (2) (v) (2000) (clear and convincing = evidence required=20 to rebut presumption that parent's decision was reasonable); Va. = Code Ann.=20 =C2=A7 20-124.2 (Michie 1998) (court may award visitation to any = person with=20 legitimate interest upon showing by clear and convincing evidence = that=20 child's best interest served thereby); Wash. Rev. Code =C2=A7 = 26.09.240 (3)=20 (2000) (requiring clear and convincing evidence that petitioner = has=20 significant relationship with child); In re Marriage of Harris, = supra,=20 2001 WL 1113062, *1 (adding standard of proof of clear and = convincing=20 evidence that parent's decision would be detrimental as = constitutional=20 gloss to California visitation statute); Hunter v. Carter, 226 Ga. = App.=20 251, 253-54, 485 S.E.2d 827 (1997) (adding standard of proof of = clear and=20 convincing evidence as judicial gloss to visitation=20 statute).

[55]     We recognize that due process requires the clear and convincing = test=20 be applied to the termination of parental rights because it is the = complete severance by court order of the legal relationship, with = all its=20 rights and responsibilities, between the child and his parent; = Santosky v.=20 Kramer, supra, 455 U.S. 747-48; while abuse and neglect petitions = require=20 proof only by a preponderance of the evidence because ''any = deprivation of=20 rights [at that stage] is reviewable and nonpermanent and, thus, = warrants=20 a slightly less exacting standard of proof.'' (Internal quotation = marks=20 omitted.) In re Shamika, 256 Conn. 383, 401 n.22, 773 A.2d 347 = (2001). It=20 is evident, however, that in the visitation context, the = heightened=20 standard of clear and convincing evidence is not constitutionally=20 mandated. Nevertheless, ''[a]ppellate courts possess an inherent=20 supervisory authority over the administration of justice. Pinsky = v.=20 Statewide Grievance Committee, 216 Conn. 228, 232, 578 A.2d 1075 = (1990);=20 State v. Holloway, 209 Conn. 636, 645-46, 553 A.2d 166, cert. = denied, 490=20 U.S. 1071, 109 S. Ct. 2078, 104 L. Ed. 2d 643 (1989); State v. = Ross, 208=20 Conn. 156, 158-59, 543 A.2d 284 (1988); State v. Madera, 198 Conn. = 92, 99,=20 503 A.2d 136 (1985) . . . .'' (Citation omitted; internal = quotation marks=20 omitted.) State v. Pouncey, 241 Conn. 802, 812, 699 A.2d 901 = (1997). This=20 court has relied upon these supervisory powers to delineate = judicial rules=20 in order to safeguard important rights. See, e.g., State v. = Santiago, 245=20 Conn. 301, 333, 715 A.2d 1 (1998) (''[u]nder our supervisory = powers, we=20 have adopted rules intended to guide the lower courts in the=20 administration of justice in all aspects of the criminal=20 process'').

[56]     We believe the stricter standard of proof is sounder because of = the=20 ease with which a petitioning party could otherwise intrude upon = parental=20 prerogative. Unlike with a petition by the department of children = and=20 families alleging abuse or neglect; General Statutes =C2=A7 = 46b129; ''there is=20 no real barrier to prevent a [party], who has more time and money = than the=20 child's parents, from petitioning the court for visitation rights. = A=20 parent who does not have the up-front out-of-pocket expense to = defend=20 against the . . . petition may have to bow under the pressure even = if the=20 parent honestly believes it is not in the best interest of the = child.''=20 (Internal quotation marks omitted.) Rideout v. Riendeau, supra, = 761 A.2d=20 310 (Alexander, J., dissenting). The prospect of competent parents = potentially getting caught up in the crossfire of lawsuits by = relatives=20 and other interested parties demanding visitation is too real a = threat to=20 be tolerated in the absence of protection afforded through a = stricter=20 burden of proof. Therefore, pursuant to this court's inherent = supervisory=20 powers; see State v. Santiago, supra, 245 Conn. 333-34; State v. = Coleman,=20 242 Conn. 523, 540-42, 700 A.2d 14 (1997); State v. Pouncey, = supra, 241=20 Conn. 812-13; we determine that a non-parent petitioning for = visitation=20 pursuant to =C2=A7 46b59 must prove the requisite relationship and = harm, as we=20 have previously articulated, by clear and convincing=20 evidence.

[57]     C.

[58]     We recognize that, currently, =C2=A7 46b-59 does not expressly = impose the=20 limitations necessary for the statute to comport with = constitutional=20 doctrine. It does not reflect the rebuttable presumption of = parental=20 fitness. It does not contemplate any actual or imminent harm to = the child=20 that must be prevented by third party visitation rights. Indeed, = =C2=A7 46b-59=20 presents no compelling interests of the state or the child. Nor = does it=20 address the nature of the relationship between the child and the = person=20 seeking visitation. Moreover, the statute does not indicate the=20 allegations and proof required to override the parent's = fundamental right=20 to make decisions regarding unsupervised visitation of his or her = child=20 with a non-parent. Finally, =C2=A7 46b-59 does not describe the = heightened=20 burden of proof necessary to justify infringement on such a right = as has=20 been established in numerous states for grandparents seeking = visitation.=20 Troxel v. Granville, supra, 530 U.S. 70.

[59]     Ordinarily, ''[i]f literal construction of a statute raises = serious=20 constitutional questions, we are obligated to search for a = construction=20 that will accomplish the legislature's purpose without risking the = statute's invalidity.'' Sassone v. Lepore, 226 Conn. 773, 785, 629 = A.2d=20 357 (1993). That adjudicative technique, however, presumes that an = alternative, constitutional interpretation remains available. As=20 interpreted by Castagno, the statute currently requires no more = than the=20 fact that the family had been disrupted. Without proper gloss, the = statute=20 would be subject to application in a manner that would be=20 unconstitutional.

[60]     We have the option simply to invalidate the = statute.

[61]     That course, however, would leave adrift the significant = interests of=20 the children harmed by the loss of visitation with a loved one, = and would=20 cause significant uncertainty concerning the rights of, and the=20 limitations upon those persons seeking visitation. Moreover, such = a=20 decision would entail significant questions concerning the effect = of the=20 invalidation of =C2=A7 46b-59 upon related provisions of = =C2=A7=C2=A7 46b-56 and 46b-57.=20 See footnotes 8 and 9 of this opinion. We therefore delineate a = scheme=20 consistent with the aforestated principles that will allow the = statute to=20 continue to function within the bounds of the = constitution.

[62]     ''Although courts rarely craft remedies of this sort, we note = that it=20 is not unprecedented for the judiciary in exceptional = circumstances to=20 delineate a procedural scheme for the protection of constitutional = rights=20 where statutory protections fall short or are nonexistent. See, = e.g.,=20 Miranda v. Arizona, 384 U.S. 436, 467, 86 S. Ct. 1602, 16 L. Ed. = 2d 694=20 (1966) (fashioning procedures for police interrogations in order = to=20 protect fifth amendment right against self-incrimination); see = also Weeks=20 v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 = (1914)=20 (adopting exclusionary rule in order to protect against = unconstitutional=20 searches and seizures by federal authorities); Mapp v. Ohio, 367 = U.S. 643,=20 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (extending exclusionary = rule to=20 states); United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. = 613, 38=20 L. Ed. 2d 561 (1974) (clarifying that exclusionary rule 'is a = judicially=20 created remedy designed to safeguard Fourth Amendment rights = generally=20 through its deterrent effect') . . . .'' (Citation omitted.) = Worsham v.=20 Greifenberger, 242 Conn. 432, 444, 698 A.2d 867 (1997) (holding = that for=20 abatement provision of General Statutes =C2=A7 31-293 to be = invoked against=20 party, notice given pursuant to statute must comport with both = statutory=20 requirements and due process clause and must contain specifically=20 enumerated criteria). Therefore, we are ready to make another = attempt at=20 providing a judicial gloss in yet another, and hopefully final, = attempt to=20 salvage =C2=A7 46b-59.

[63]     Implicit in the statute is, as we have stated, a rebuttable=20 presumption that visitation that is opposed by a fit parent is not = in a=20 child's best interest. In sum, therefore, we conclude that there = are two=20 requirements that must be satisfied in order for a court: (1) to = have=20 jurisdiction over a petition for visitation contrary to the wishes = of a=20 fit parent; and (2) to grant such a petition.

[64]     First, the petition must contain specific, good faith = allegations that=20 the petitioner has a relationship with the child that is similar = in nature=20 to a parent-child relationship. The petition must also contain = specific,=20 good faith allegations that denial of the visitation will cause = real and=20 significant harm to the child. As we have stated, that degree of = harm=20 requires more than a determination that visitation would be in the = child's=20 best interest. It must be a degree of harm analogous to the kind = of harm=20 contemplated by =C2=A7=C2=A7 46b-120 and 46b-129, namely, that the = child is=20 ''neglected, uncared-for or dependent.'' The degree of specificity = of the=20 allegations must be sufficient to justify requiring the fit parent = to=20 subject his or her parental judgment to unwanted litigation. Only = if these=20 specific, good faith allegations are made will a court have = jurisdiction=20 over the petition.

[65]     Second, once these high jurisdictional hurdles have been = overcome, the=20 petitioner must prove these allegations by clear and convincing = evidence.=20 Only if that enhanced burden of persuasion has been met may the = court=20 enter an order of visitation. These requirements thus serve as the = constitutionally mandated safeguards against unwarranted = intrusions into a=20 parent's authority.

[66]     II.

[67]     Ordinarily, in determining whether the trial court had = jurisdiction=20 over a petition for visitation, we simply would examine the = allegations of=20 the petition and compare them to the jurisdictional requirements = set forth=20 herein. That approach in the present case, however, would be = manifestly=20 unfair, because these requirements are newly stated, and the = plaintiffs=20 could not have anticipated their adoption. We therefore examine, = instead,=20 not only the allegations, but also the proof adduced by the = plaintiffs to=20 determine whether, if either is insufficient, our remand should = give the=20 plaintiffs an opportunity to amend their petition. In other words, = if the=20 record were to contain evidence that could support our newly = stated=20 requirement of proof, we would be inclined, rather than direct the = trial=20 court to dismiss the petition outright, to permit the plaintiffs = to amend=20 the petition so that it might satisfy those requirements on a new = trial.=20 We conclude, however, that: (1) the allegations are facially = insufficient=20 to invoke properly the court's jurisdiction; and (2) the evidence = could=20 not, even under a generous interpretation, satisfy the requisite = burden of=20 persuasion as we have articulated it herein. We therefore conclude = that=20 the petition must be dismissed.

[68]     We first address the requirement that the plaintiffs establish = that=20 they have had a parent-like relationship with the children. The=20 plaintiffs' complaint alleges merely that they are the maternal=20 grandmother and maternal aunt to the defendant's children. In = addition to=20 being close blood relations to the children, however, the record = supports=20 the trial court's conclusion that both Roth and Campbell had = developed=20 loving and responsible relationships with the children. In the two = years=20 preceding the death of the children's mother, both of the = plaintiffs=20 regularly visited with or telephoned the children, as much as = several days=20 per week. *fn14 They participated in the children's = birthday=20 celebrations, took the children to parks, and played with the = children at=20 their home. Roth frequently stayed overnight at her daughter's = house with=20 the children and on occasion the children stayed at Roth's house = when=20 their parents were away. The defendant's oldest child, his = daughter,=20 occasionally slept overnight at Campbell's home.

[69]     Although these facts reflect that the plaintiffs were involved = in an=20 ongoing relationship with the children, we conclude that they fail = to=20 establish the type of relationship we have articulated herein. The = plaintiffs have not shown that they have acted in a parental type = of=20 capacity to the children as required under =C2=A7 = 46b-59.

[70]     With respect to the second jurisdictional requirement, the = plaintiffs'=20 complaint is silent as to the issue of whether the court's denial = of=20 visitation would result in actual, significant harm to the = children. The=20 trial court concluded that the plaintiffs had ''met their burden = of proof=20 by clear and convincing evidence that it will be in the minor = children's=20 best interests to have unsupervised visitation with these = plaintiffs . . .=20 .'' As we previously have discussed, however, the statutory = standard of=20 the best interest of the child is a much lower threshold than the=20 requirement of proving significant harm. Thus, we examine the = basis for=20 the trial court's conclusion to determine if it nevertheless = properly=20 considered the issue of harm.

[71]     We first note that it is evident from the record that the trial = court=20 allocated the burden to the defendant to disprove harm rather than = on the=20 plaintiffs to prove harm. The trial court's memorandum largely = focused on=20 explaining why the defendant's objections to visitation were = unfounded.=20 Troxel makes it clear, however, that there is a presumption that a = fit=20 parent's decision is in the best interest of the child. Troxel v.=20 Granville, supra, 530 U.S. 69. In the present case, there was = neither an=20 allegation nor a finding that the defendant was an unfit parent. = *fn15 Thus, it was the plaintiffs' burden to = overcome the=20 presumption in favor of the defendant's decision by showing that = the=20 deprivation of visitation would cause significant harm to the = children,=20 not the defendant's burden to prove that his concerns were = objectively=20 reasonable. *fn16 Therefore, we conclude that ''[t]he = decisional=20 framework employed by the Superior Court directly contravened the=20 traditional presumption that a fit parent will act in the best = interest of=20 his or her child. . . . In that respect, the court's presumption = failed to=20 provide any protection for [the defendant's] fundamental = constitutional=20 right to make decisions concerning the rearing of [his] own = [children].''=20 (Citation omitted.) Id., 69-70.

[72]     The second flaw in the trial court's analysis in this case was = that it=20 focused on whether the children would be harmed should visitation = be=20 granted, rather than whether there would be significant harm to = the=20 children were visitation denied. See Brooks v. Parkerson, supra, = 265 Ga.=20 194 (''even assuming grandparent visitation promotes the health = and=20 welfare of the child, the state may only impose that visitation = over the=20 parents' objections on a showing that failing to do so would be = harmful to=20 the child''); Neal v. Lee, 14 P.3d 547, 550 (Okla. 2000) = (reversing trial=20 court decision because ''no court has found that . . . the = children will=20 suffer harm without court ordered grandparent visitation''). For = example,=20 the trial court noted in its decision that Campbell ''would not = pose any=20 danger to these children because she has changed her ways . . . = .''=20 Similarly, with respect to the defendant's concerns that Roth = would be=20 unable to handle adequately an emergency situation, the court = found Roth=20 ''capable and . . . without any disabilities.'' Additionally, the = trial=20 court noted the testimony of Allen, the defendant's sister-in-law, = that=20 ''[s]he [did] not believe these children would be under any risk = with=20 unsupervised visitation.'' None of these findings, however, = addresses the=20 issue of whether a denial of visitation would cause real and = significant=20 harm to the children. Rather, they reflect a lack of deference to = the=20 parent who is presumed to act in the best interests of the=20 children.

[73]     The lone reference to harm that might result were the trial = court to=20 deny visitation was implicit in the guardian ad litem's report, = which the=20 court relied upon in granting visitation. That report concluded: = ''In my=20 opinion, it is imperative that these children, ages 3 and 5, grow = up=20 knowing and being involved with their mother's family.'' The = guardian ad=20 litem offered no basis for her conclusion other than her = observation that=20 the children enjoyed their court-ordered visits with the = plaintiffs at her=20 office. *fn17 This benefit, however, does not rise to = the level=20 required to justify ordering visitation contrary to the wishes of = a fit=20 parent. As the Oklahoma Supreme Court noted, a ''vague = generalization=20 about the positive influence many grandparents have upon their=20 grandchildren falls far short of the necessary showing of harm = which would=20 warrant the state's interference with this parental decision = regarding who=20 may see a child. With respect to our constitutional evaluation, = whether a=20 court ordered grandparent relationship might be thought of as = better or=20 more desirable for a child is not relevant.'' In re Herbst, supra, = 971=20 P.2d 399.

[74]     In the present case, the plaintiffs neither alleged that the = children=20 would be significantly harmed were the court to have denied = visitation nor=20 proved that fact by clear and convincing evidence. *fn18 Therefore, we conclude that the trial = court=20 improperly applied the analytical framework set forth in this = opinion and=20 improperly granted visitation rights to the plaintiffs in = violation of the=20 defendant's due process rights under both the state and federal=20 constitutions.

[75]     In the absence of the essential allegations and proof in support = thereof, both of the nature of the relationship between the = plaintiffs and=20 the defendant's minor children as well as the harm that the = children would=20 suffer were visitation denied, the trial court did not have = jurisdiction=20 over the petition for visitation.

[76]     The judgment is reversed and the case is remanded with direction = to=20 dismiss the petition.

[77]     In this opinion the other justices concurred.

 
  Opinion Footnotes
 
[78]     *fn1 General Statutes =C2=A7 46b-59 provides: = ''Court may grant=20 right of visitation to any person. The Superior Court may grant = the right=20 of visitation with respect to any minor child or children to any = person,=20 upon an application of such person. Such order shall be according = to the=20 court's best judgment upon the facts of the case and subject to = such=20 conditions and limitations as it deems equitable, provided the = grant of=20 such visitation rights shall not be contingent upon any order of = financial=20 support by the court. In making, modifying or terminating such an = order,=20 the court shall be guided by the best interest of the child, = giving=20 consideration to the wishes of such child if he is of sufficient = age and=20 capable of forming an intelligent opinion. Visitation rights = granted in=20 accordance with this section shall not be deemed to have created = parental=20 rights in the person or persons to whom such visitation rights are = granted. The grant of such visitation rights shall not prevent any = court=20 of competent jurisdiction from thereafter acting upon the custody = of such=20 child, the parental rights with respect to such child or the = adoption of=20 such child and any such court may include in its decree an order=20 terminating such visitation = rights.''

[79]     *fn2 In addition to the constitutional issues we = address in=20 this opinion, the defendant claimed in his appeal to the Appellate = Court=20 that the trial court improperly: (1) exercised jurisdiction under = =C2=A7 46b-59=20 to consider the plaintiffs' complaint seeking visitation; (2) = ordered him=20 not to relocate the children from their current residence; (3) = relied upon=20 the opinion of the guardian ad litem who also served as the = attorney for=20 the children; and (4) exercised authority to order him to undergo = and pay=20 for psychiatric counseling when ordering visitation pursuant to = =C2=A7 46b-59.=20 As we find the constitutional issue dispositive in this case, we = need not=20 reach the defendant's other issues. See Bortner v. Woodbridge, 250 = Conn.=20 241, 251 n.13, 736 A.2d 104 (1999) (court does not decide issue=20 unnecessary to resolution of case); Duni v. United Technologies = Corp., 239=20 Conn. 19, 23 n.5, 682 A.2d 99 (1996) = (same).

[80]     *fn3 The fourteenth amendment to the United = States=20 constitution, =C2=A7 1, provides in relevant part: ''No State = shall make or=20 enforce any law which shall abridge the privileges or immunities = of=20 citizens of the United States; nor shall any State deprive any = person of=20 life, liberty or property, without due process of law; nor deny to = any=20 person within its jurisdiction the equal protection of the laws.'' = Article=20 first, =C2=A7 8, of the Connecticut constitution provides in = relevant part:=20 ''No person shall . . . be deprived of life, liberty or property = without=20 due process of law = ....''

[81]     *fn4 The defendant filed a motion to dismiss the=20 plaintiffs' original complaint on the grounds that the trial court = did not=20 have jurisdiction to hear the complaint and that the plaintiffs = did not=20 have standing. The defendant subsequently filed an amended motion = to=20 dismiss, alleging additionally that General Statutes =C2=A7=C2=A7 = 46b-56 and 46b-59=20 were rendered unconstitutional by the United States Supreme = Court's=20 decision in Troxel v. Granville, supra, 530 U.S. 57. The trial = court held=20 that Troxel did not render =C2=A7 46b-59 unconstitutional, but = granted the=20 defendant's motion to dismiss without prejudice on the ground that = the=20 plaintiffs had failed to allege a basis for the court's = jurisdiction=20 pursuant to the criteria that this court set forth in Castagno v. = Wholean,=20 239 Conn. 336, 684 A.2d 1181 (1996). Specifically, the complaint = failed to=20 allege that the children's mother had died. Thereafter, the = plaintiffs=20 filed an amended = complaint.

[82]     *fn5 The defendant had made no efforts prior to = his wife's=20 death to interfere with the plaintiffs' contact with his wife and=20 children. Immediately after his wife's death, the defendant moved = into his=20 mother's house. Thereafter, he refused to allow any contact by the = plaintiffs with his = children.

[83]     *fn6 In the absence of a separate and distinct = analysis we=20 will not consider the defendant's claim under the Connecticut=20 constitution. Ramos v. Vernon, 254 Conn. 799, 814-15, 761 A.2d 705 = (2000);=20 Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, = 319=20 n.19, 732 A.2d 144 (1999); State v. Robinson, 227 Conn. 711, = 721-22, 631=20 A.2d 288 (1993). We limit our inquiry, therefore, to his federal=20 constitutional claim.

[84]     *fn7 We declined at that time to articulate under = what=20 circumstances visitation would constitute a compelling interest, = as the=20 issue was not before the court and would have required = consideration of a=20 ''hypothetical set of facts ....'' (Internal quotation marks = omitted.)=20 Castagno v. Wholean, supra, 239 Conn. 352 = n.15.

[85]     *fn8 General Statutes =C2=A7 46b-56 provides in = relevant part:=20 ''Superior Court orders re custody, care and therapy of minor = children in=20 actions for dissolution of marriage, legal separation and = annulment. . . .=20 (a) In any controversy before the Superior Court as to the custody = or care=20 of minor children, and at any time after the return day of any = complaint=20 under section 46b45, the court may at any time make or modify any = proper=20 order regarding the education and support of the children and of = care,=20 custody and visitation if it has jurisdiction under the provisions = of=20 chapter 815o. Subject to the provisions of section 46b-56a, the = court may=20 assign the custody of any child to the parents jointly, to either = parent=20 or to a third party, according to its best judgment upon the facts = of the=20 case and subject to such conditions and limitations as it deems = equitable.=20 The court may also make any order granting the right of visitation = of any=20 child to a third party, including but not limited to, = grandparents. ''(b)=20 In making or modifying any order with respect to custody or = visitation,=20 the court shall (1) be guided by the best interests of the child=20 ....''

[86]     *fn9 General Statutes =C2=A7 46b-57 provides: = ''Third party=20 intervention re custody of minor children. Preference of child. In = any=20 controversy before the Superior Court as to the custody of minor = children,=20 and on any complaint under this chapter or section 46b-1 or = 51-348a, if=20 there is any minor child of either or both parties, the court if = it has=20 jurisdiction under the provisions of chapter 815o, may allow any=20 interested third party or parties to intervene upon motion. The = court may=20 award full or partial custody, care, education and visitation = rights of=20 such child to any such third party upon such conditions and = limitations as=20 it deems equitable. Before allowing any intervention, the court = may=20 appoint counsel for the child or children pursuant to the = provisions of=20 section 46b-54. In making any order under this section the court = shall be=20 guided by the best interests of the child, giving consideration to = the=20 wishes of the child if he is of sufficient age and capable of = forming an=20 intelligent = preference.''

[87]     *fn10 See, e.g., Meyer v. Nebraska, 262 U.S. = 390, 399-401,=20 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Pierce v. Society of = Sisters, 268=20 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Stanley v. = Illinois,=20 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); = Wisconsin v.=20 Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); = Quilloin=20 v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 54 L. Ed. 2d 511 = (1978);=20 Parham v. J. R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d = 101=20 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 = L. Ed.=20 2d 599 (1982); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. = Ct.=20 2258, 138 L. Ed. 2d 772 = (1997).

[88]     *fn11 State statutes that either define = grandparent to=20 include great-grandparent or expressly grant standing to both = grandparents=20 and great-grandparents include: Ariz. Rev. Stat. Ann. =C2=A7 = 25-409 (2000);=20 Ark. Code Ann. =C2=A7 9-13-103 (1998); Fla. Stat. c. 752.001 = (1997); Idaho Code=20 =C2=A7 32-719 (Michie 1999); 750 Ill. Comp. Stat. 5/607 (Sup. = 2001); Minn.=20 Stat. =C2=A7 257.022 (2000); Nev. Rev. Stat. =C2=A7 125C.050 (Sup. = 1999), as amended=20 by 2001 Nev. Stat. c. 547; N.D. Cent. Code =C2=A7 14-09-05.1 (Sup. = 2001); Okla.=20 Stat. tit. 10, =C2=A7 5 (Sup. 1997); Wis. Stat. =C2=A7 767.245 = (2000).

[89]     *fn12 In connection with this part of the = analysis it is=20 important to note that the state's interest in enabling = grandparents to=20 visit with their grandchildren as reflected in =C2=A7 46b-59 is = not a=20 compelling state interest consistent with this decisional = framework. See=20 R.S.C. &C.V.C. v. J.B.C., Docket No. 2990943, 2001 WL 996065, = *8 (Ala.=20 Civ. App. August 31, 2001) (noting that court did not find that = ''state's=20 interest in enabling grandparent-grandchild relationships is a = 'compelling=20 state interest' for purposes of [its] decisional framework under = the=20 Fourteenth Amendment''); Beagle v. Beagle, 678 So. 2d 1271, 1276 = (Fla.=20 1996) (answering question, whether state's interest in visitation = is=20 compelling, in negative); but see Michael v. Hertzler, 900 P.2d = 1144, 1151=20 (Wyo. 1995) (stating that ''compelling state interest exists in=20 maintaining the right of association of grandparents and=20 grandchildren'').

[90]     *fn13 We recognize that the burden of harm that = the=20 statute imposes may be deemed unusually harsh in light of the fact = that=20 visitation, as opposed to custody, is at issue. We draw no = distinction,=20 however, for purposes of this discussion. Visitation is ''a = limited form=20 of custody during the time the visitation rights are being = exercised=20 ....''(Citation omitted.) In re Marriage of Gayden, 229 Cal. App. = 3d 1510,=20 1517, 280 Cal. Rptr. 862 = (1991).

[91]     *fn14 The defendant argues in his brief that the = amount of=20 contact is in dispute. On cross-examination, however, the = defendant=20 admitted that he could not state definitively how often the = plaintiffs=20 visited as he was often at work at the times of the plaintiffs' = purported=20 visits.

[92]     *fn15 To the contrary, a review of the record = indicates=20 that the trial court conceded that the defendant was an excellent=20 father.

[93]     *fn16 With respect to the defendant's concerns = about=20 Campbell's prior activities, we note the trial court's admonition = that=20 ''[s]he should be commended more than condemned for turning her = life=20 around.'' It is a parent's constitutionally protected role, = however, not=20 the court's role, to dictate what values to instill in that = parent's=20 children.

[94]     *fn17 The guardian ad litem submitted the report = after=20 observing three visitations between the defendant's children and = the=20 plaintiffs. The report stated in relevant part: ''Prior to the = death of=20 [the children's mother], the [plaintiffs] were extremely involved = in the=20 lives of the children. After the tragic death of the mother, the=20 [defendant] terminated visitation between his children and [the] = mother's=20 family. . . . There is no doubt in my mind, after observing these = children=20 with [the plaintiffs] that they enjoy their visits with their = mother's=20 family. Initially, the children were pensive and timid, but the = more time=20 they spent with their extended family, the more comfortable the = children=20 became. By the third and final visit, both children were = thoroughly=20 enjoying [the = plaintiffs].''

[95]     *fn18 Indeed, based upon the record in this = case, they=20 cannot meet this=20 burden.

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