ACTION

[A] natural parent may only be deprived of custody of a child upon a showing substantial harm to the child."  In re Askew  (Tenn. Supreme Court 1999)

The child has a similar liberty interest in being in the care and custody of her parents. See Brokaw v. Mercer County, 235 F.3d 1000, 1018-19 (7th Cir. 2000); Wooley v. City of Baton Rouge, 211 F.3d 913, 923 (5th Cir. 2000); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir. 1977); Opinion of the Justices to the Senate, 427 Mass. 1201, 691 N.E.2d 911, 915 (1998). This liberty interest is protected both by the substantive component of the Due Process Clause, which constrains governmental interference with certain fundamental rights and liberty interests, and by the procedural component of the Due Process Clause, which guarantees "fair process." Washington v. Glucksberg, 521 U.S. 702, 720 (1997).

“There must be some other special factor such as harm to the child or custodial unfitness that justifies state interference.” (Ark. S.Ct. Linder v. Linder)

For parents contempting a grandparent visitation order and choosing jail to protect their children and who want to turn their child over to someone other than the grandparent:

One of Suboh's rights as a mother was the right to choose a proxy custodian for Sofia following her arrest. See In re Dep't of Pub. Welfare, 383 Mass. 573, 421 N.E.2d 28, 34 (1981) (noting, in case of incarcerated mother, that mother's "presumptive right to custody of the child includ[es] the right to choose a caretaker proxy").

Vt. GLIDDEN v. CONLEY:  "That a child might benefit from contact with a grandparent or that a parent might deny grandparent visitation for no good reason in the court's view are not the kind of compelling circumstances contemplated by the Constitution or this decision. Rather, to overcome a parent's decision on grandparent visitation, a grandparent must show circumstances like parental unfitness, see Linder, 72 S.W.3d at 858 (some special factor like unfitness of custodial parent must exist to justify state interference in parent's right to decide grandparent visitation issue); Stacy, 99-CA-00579-SCT, 23, 798 So.2d at 1280 (compelling circumstances suggesting something close to unfitness of custodial parent may be sufficient to justify visitation award to grandparents over parent's objection), or significant harm to the child will result in the absence of a visitation order (thus suggesting parental unfitness), see Linder, 72 S.W.3d at 858 (harm to the child in absence of visitation order may warrant overriding parent's visitation decision); Blixt, 774 N.E.2d at 1060 (to rebut presumption in custodial parent's favor, grandparent must prove that failure to grant visitation will "cause the child significant harm by adversely affecting the child's health, safety, or welfare"). This construction of the statute minimizes the risk that a court [or legislature - added] will substitute its judgment for that of the parent simply because the court [or legislature - added] disagrees with the parent's decision. Our construction of the statute also recognizes that a dispute between a fit custodial parent and the child's grandparent over grandparent visitation "is not a contest between equals." Stacy, 99-CA-00579-SCT, 23, 798 So.2d at 1280; see also Wickham, 769 N.E.2d at 7-8 (finding unconstitutional a statute that places parent on equal footing with third parties seeking visitation with the child)."

As Alabama found true in Beck v. Beck:

Ordering scheduled visitation in a case where the grandparents have never been denied visitation with the child, where there is no indication in the record that the father would deprive his child of a relationship with the grandparents, where the grandmother described her relationship with the child as "normal grandparent involvement," and where the grandparents' time with child has decreased in large part because of the child's and the parent's schedules, goes beyond the constitutionally mandated limits for awarding grandparent visitation.

Constitutional interpretation has consistently recognized that the parents' claim to authority in the rearing of their children is basic in our society, and the legislature could properly conclude that those primarily responsible for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.”  GINSBERG v. NEW YORK 390 US 629 (1968)

In footnote 1 in Seagrave v. Price (Ark. S.Ct.)  “We note that our holding finds nearly all of the Act unconstitutional, save one clause wherein grandparents may petition for visitation when no parent has custody.  See § 9-13-103(c)(2).”

Arkansas Supreme Court in Linder v. Linder: “We begin our analysis of the instant case by concluding that Lea Ann, as a single parent, has a fundamental right under the Fourteenth Amendment in prohibiting state intrusion on her parenting of Brandon.”  Linder v. Linder Arkansas court of Appeals: “We further acknowledged that, following a divorce, children belong to a different family unit than they did when their parents lived together. The new family unit consists of the children and the custodial parent, and what is advantageous to the unit's members as a whole, to each of its members individually, and to the way they relate to each other and function together is in the best interests of the children.”  [Parker v. Parker, No. CA00-331 (Ark.App. 09/19/2001)] IL Supreme Court  “…one parent's well-established fundamental right’ to raise her child without interference from the state is not diminished by the death of the other parent.” {Schweigert v. Schweigert, (Ill. 2d 2002)}  “Additionally, the United States Supreme Court does not limit the fundamental right to make decisions concerning the care, custody, and control of children to decisions made by joint parents…” {Wickham v. Byrne/Langman v. Langman, IL Supreme Court}

“We, therefore, reject any argument that single parents are entitled to less constitutional liberty in decisions concerning the care, custody, and control of their children.” {Wickham v. Byrne/Langman v. Langman, IL Supreme Court} 

 “Parents have the constitutionally protected latitude to raise their children as they decide, even if these decisions are perceived by some to be for arbitrary or wrong reasons. The presumption that parents act in their children's best interest prevents the court from second guessing parents' visitation decisions. Moreover, a fit parent's constitutionally protected liberty interest to direct the care, custody, and control of his or her children mandates that parents-not judges-should be the ones to decide with whom their children will and will not associate.”

Brooks et al v. Parkerson (Georgia)----While there are, to be sure, many instances where the grandparent-grandchild bond is beneficial to the child, we have found, and the parties cite, little evidence that this is most often the case. It has also been noted that even if such a bond exists and would benefit the child if maintained, the impact of a lawsuit to enforce maintenance of the bond over the parents' objection can only have a deleterious effect on the child. Bohl, supra at 296. Note, Columbia Law Rev. at 124. In so saying, we recognize that there are many grandparents who have a deep and significant bond with their grandchildren, and that we have an explicit policy in this state to "encourage that a minor child has continuing contact with parents and grandparents." OCGA § 19-9-3(d).

Even though Justice Hannah dissented in Linder for various reasons, his statement persuasively shows that grandparent visitation should not be the same as parental visitation.  “The trial court granted the paternal grandfather the same visitation as a noncustodial parent. Unless this visitation was granted in the context of a custody proceeding, it appears to be granted in error. Even then, absent a finding of an extremely close paternal type relationship, which was absent in the facts of this case, this amount of visitation could not have been in the best interests of this child. I would reverse and remand this case for the trial court to reconsider the paternal grandfather's visitation.” (Linder v. Linder)

In the Interest of A.M.K. a Child:

Colorado appellate opinions have confirmed that "natural parents have a fundamental liberty interest in the companionship, care, custody, and management of their children."

In re Petition of J.D.K., 37 P.3d 541, 543 (Colo.App. 2001); see L.L. v. People, 10 P.3d 1271 (Colo. 2000). This fundamental liberty interest gives rise to a presumption that the best interests of the child will be furthered by a fit natural parent. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

As Justice O'Connor noted in Troxel, grandparental visitation has no historic roots in the common law but rather is a legislated creature of the late twentieth century. Troxel, 530 U.S. at 96-97 (plurality opinion); see also Brooks v. Parkerson, 454 S.E.2d 769, 770 n.2 (Ga. 1995) ("At common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents."); Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).

Arkansas Supreme Court, Linder v. Linder:  “The question then becomes whether unfitness solely to decide visitation matters is a compelling interest on the part of the State that warrants intrusion on a parent's fundamental parenting right and overcomes the presumption in the parent's favor. We conclude that it is not. So long as Lea Ann is fit to care for Brandon on a day-to-day basis, the Fourteenth Amendment right attaches, and the State may not interfere without a compelling interest to do so. As Justice O'Connor wrote in Troxel, the State must accord "special weight" to the mother's decision so long as she is a fit mother. See Troxel at 68-69.”

Vermont:  Glidden v. Conley quoting Linder:

That a child might benefit from contact with a grandparent or that a parent might deny grandparent visitation for no good reason in the court's view are not the kind of compelling circumstances contemplated by the Constitution or this decision. Rather, to overcome a parent's decision on grandparent visitation, a grandparent must show circumstances like parental unfitness, see Linder, 72 S.W.3d at 858 (some special factor like unfitness of custodial parent must exist to justify state interference in parent's right to decide grandparent visitation issue); Stacy, 99-CA-00579-SCT, 23, 798 So.2d at 1280 (compelling circumstances suggesting something close to unfitness of custodial parent may be sufficient to justify visitation award to grandparents over parent's objection), or significant harm to the child will result in the absence of a visitation order (thus suggesting parental unfitness), see Linder, 72 S.W.3d at 858 (harm to the child in absence of visitation order may warrant overriding parent's visitation decision); Blixt, 774 N.E.2d at 1060 (to rebut presumption in custodial parent's favor, grandparent must prove that failure to grant visitation will "cause the child significant harm by adversely affecting the child's health, safety, or welfare"). This construction of the statute minimizes the risk that a court will substitute its judgment for that of the parent simply because the court disagrees with the parent's decision. Our construction of the statute also recognizes that a dispute between a fit custodial parent and the child's grandparent over grandparent visitation "is not a contest between equals." Stacy, 99-CA-00579-SCT, 23, 798 So.2d at 1280; see also Wickham, 769 N.E.2d at 7-8 (finding unconstitutional a statute that places parent on equal footing with third parties seeking visitation with the child).