Utah's top court hears arguments over grandparent's visitation rights

The father of a 10-year-old girl who has custody of the child and the girl's maternal grandmother squared off in oral arguments before the Utah Supreme Court Wednesday over whether a lower court should be able to order grandparent visitation despite the father's objections.

Darryl Thurgood insists such a court order violates his constitutional rights to make decisions he considers in the girl's best interest and be free of interference from others, including the state.

The girl and her mother lived with the maternal grandparents for the first four years of the child's life and a strong bond developed between the child and grandparents. After the mother died unexpectedly in 2000, the grandmother, Darlene Uzelac, sued in 3rd District Court for custody, or visitation as an alternative, but was denied.

Custody was awarded to Thurgood, who was divorced from the child's mother when she died, and he was found by the court to be a "fit and proper" parent for the girl.

Since then, there has been ongoing litigation, particularly with regard to visitation. A district court found that the grandmother had standing to claim a right to visitation over the father's objections based on the issue of the "best interest" of the child.

But Thurgood's lawyer, Jerrald D. Conder, told the Supreme Court Wednesday that the district court erred. The due process clause of the 14th Amendment of the U.S. Constitution protects the fundamental right of a parent to make decisions involving his own child.

As long as that parent is considered "fit and proper" and is not guilty of abandonment, abuse or neglect — and no one is alleging Thurgood has done anything like that — the presumption is the parent should make the decisions, Conder said.

" 'Best interest' is not sufficient threshold for a state judge to decide it can make a 'better' decision than the parent. To do so infringes on the constitutional right of the parent."

Condor said he was not seeking to get a state law regarding grandparents' rights tossed out, but at his client's request was asking the high court to solely address Thurgood's case.

Bruce Reading, attorney for the grandmother, outlined the powerful bond between the child and her grandparents, and noted the dying mother's wish that her own parents take custody of the girl.

As for Thurgood's due process rights, he had the opportunity to be part of a one-day bench trial in district court, but was not there, Reading said. "Mr. Thurgood chose not to avail himself of due process and now comes to you wrapped in the Constitution."

No one disputes Thurgood's abilities as a parent, but there are times when the state must intervene in a child's best interests: When underage youngsters are hawking goods for sale on street corners or being denied blood transfusions because of parental religious beliefs, he said.

When a child will be harmed, the state can and does step in. A mental health professional who conducted a visitation evaluation has said the girl will be harmed if she cannot process the death of her mother through these grandparents, Reading said.

The high court will issue a ruling in the case in the future.

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E-mail: lindat@desnews.com