{ "id": 1224617, "name": "Josephine DEEM, Petitioner-Appellant, v. Raymond M. LOBATO and Susan Deem Lobato, Respondents-Appellees", "name_abbreviation": "Deem v. Lobato", "decision_date": "2004-06-23", "docket_number": "No. 23,089", "first_page": "266", "last_page": "272", "citations": [ { "type": "official", "cite": "136 N.M. 266" }, { "type": "parallel", "cite": "96 P.3d 1186" }, { "type": "parallel", "cite": "2004-NMCA-102" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "74 N.M. 775", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2796869 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "777" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0775-01" ] }, { "cite": "2002-NMSC-033", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15539 ], "weight": 3, "year": 1965, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0020-01" ] }, { "cite": "87 N.M. 486", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831238 ], "weight": 4, "year": 1975, "pin_cites": [ { "page": "488" }, { "page": "1339" }, { "page": "488" }, { "page": "1339" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0486-01" ] }, { "cite": "114 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731665 ], "weight": 2, "pin_cites": [ { "page": "540" }, { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0537-01" ] }, { "cite": "820 A.2d 197", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 2196230 ], "year": 2003, "pin_cites": [ { "page": "204-05" } ], "opinion_index": 0, "case_paths": [ "/vt/175/0111-01" ] }, { "cite": "83 S.W.3d 537", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 11430476 ], "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/sw3d/83/0537-01" ] }, { "cite": "154 Md.App. 222", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 625102 ], "weight": 3, "pin_cites": [ { "page": "1273" }, { "page": "1273", "parenthetical": "\"If the custodial parent's preference were absolute, the need for a grandparent visitation statute would be obviated, for a parent could deny visitation without recourse.\"" } ], "opinion_index": 0, "case_paths": [ "/md-app/154/0222-01" ] }, { "cite": "752 N.E.2d 78", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 11080398 ], "pin_cites": [ { "page": "96-97, 98" } ], "opinion_index": 0, "case_paths": [ "/ne2d/752/0078-01" ] }, { "cite": "1 Cal.Rptr.3d 185", "category": "reporters:state", "reporter": "Cal. Rptr. 3d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "195", "parenthetical": "\"Giving the parent's determination 'special weight' is different than insulating the parent's determination from any court intervention whatsoever.\"" } ], "opinion_index": 0 }, { "cite": "109 Cal.App.4th 1466", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 597704 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/cal-app-4th/109/1466-01" ] }, { "cite": "201 Ariz. 172", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 255216 ], "weight": 2, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ariz/201/0172-01" ] }, { "cite": "2062-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "901 P.2d 776", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1558848 ], "weight": 4, "pin_cites": [ { "page": "774-75" }, { "page": "774" }, { "page": "775" }, { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0358-01" ] }, { "cite": "126 N.M. 352", "category": "reporters:state", "reporter": "N.M.", "pin_cites": [ { "page": "356-57" } ], "opinion_index": 0 }, { "cite": "120 N.M. 794", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558878 ], "weight": 15, "pin_cites": [ { "page": "799" }, { "page": "203" }, { "page": "356" }, { "page": "800" }, { "page": "204" }, { "page": "798" }, { "page": "202", "parenthetical": "quoted authority and quotation marks omitted" }, { "page": "357" }, { "page": "798" }, { "page": "202" }, { "page": "800" }, { "page": "204" }, { "page": "354" }, { "page": "799" }, { "page": "203", "parenthetical": "stating that when there is a parental challenge to grandparent visitation, the court \"should also consider whether it would be beneficial to appoint a guardian ad litem to represent the child in the face of conflicting interests\"" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0794-01" ] }, { "cite": "2004-NMCA-017", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1427966 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b617" } ], "opinion_index": 0, "case_paths": [ "/nm/135/0272-01" ] }, { "cite": "126 S.Ct. 2054", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "2002-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 260679 ], "weight": 23, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 9" }, { "page": "\u00b6\u00b6 16, 23" }, { "page": "\u00b6 23" }, { "page": "\u00b6 21-24" }, { "page": "\u00b6\u00b6 25-28" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0445-01" ] }, { "cite": "112 N.M. 489", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720160 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "491", "parenthetical": "stating that the unchallenged finding of the district court was binding on appeal" }, { "page": "1113", "parenthetical": "stating that the unchallenged finding of the district court was binding on appeal" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0489-01" ] }, { "cite": "530 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413198 ], "weight": 33, "year": 2000, "pin_cites": [ { "parenthetical": "plurality opinion" }, { "parenthetical": "plurality opinion" }, { "parenthetical": "plurality opinion" }, { "page": "66-67, 75" }, { "page": "67" }, { "page": "69" }, { "page": "71" }, { "page": "72" }, { "page": "73" }, { "page": "64" }, { "page": "73" }, { "page": "87" }, { "page": "68" }, { "page": "70" }, { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/us/530/0057-01" ] } ], "analysis": { "cardinality": 1016, "char_count": 25405, "ocr_confidence": 0.676, "pagerank": { "raw": 8.785202167648445e-08, "percentile": 0.4959221560793699 }, "sha256": "62aca0b784b7c4c26d864cfbbf9cc1a6dda94e21e7259cd5a110a9a01091cefd", "simhash": "1:1f569f23dadabec6", "word_count": 4064 }, "last_updated": "2023-07-14T15:28:59.278788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and KENNEDY, JJ., concur." ], "parties": [ "Josephine DEEM, Petitioner-Appellant, v. Raymond M. LOBATO and Susan Deem Lobato, Respondents-Appellees." ], "opinions": [ { "text": "OPINION\nROBINSON, J.\n{1} Petitioner Josephine Deem (Grandmother) appeals from the district court order terminating visitation with her granddaughter (Child). See Grandparent\u2019s Visitation Privileges Act (the GVA), NMSA 1978, \u00a7 40-9-1 to -4 (1993, as amended through 1999). Relying upon Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion), the district court determined that a change in the joint custody arrangement between Child\u2019s parents to sole custody with Father provided a sufficient basis to terminate visitation. On appeal, Grandmother raises the following arguments: the district court misapplied the United States Supreme Court decision in Troxel; the change in the custody arrangement did not constitute a showing of good cause under Section 40-9-3(A) of the GVA; and the district court erred when it terminated the existing court-ordered visitation without an evidentiary hearing. We reverse and remand with instructions.\nBACKGROUND\n{2} Grandmother is the maternal grandmother of Child. Parents (Mother and Father) of Child were divorced in August 1995 when Child was one year old. The parenting plan agreed upon at the time of the divorce granted joint legal custody to Mother and Father, with Father having primary physical custody of Child. In the first few years of Child\u2019s life, Grandmother developed a good relationship with Child, and, after the divorce, Mother\u2019s visitation with Child took place at Grandmother\u2019s home. Subsequently, however, relations between Grandmother and Father became strained and her visits with Child all but ended. In December 1998, Grandmother filed a petition seeking regular visitation with Child to which Father objected.\n{3} On February 7 and 11, 2000, after Father requested a continuance of the trial, District Court Judge James Hall conducted a hearing on temporary visitation privileges while the trial on the merits of the visitation petition was pending. See Section 40-9-2(H). At the conclusion, the district court determined that it was in the best interests of Child to have visitation with Grandmother, and temporary visitation was ordered pending a full hearing. The court stated that the interim visits would also serve to provide information to the court for the hearing on the merits. In response to Father\u2019s expressed concerns, the district court imposed several restrictions on the visitation, including that it be supervised, that the supervisor report to the court on the visits, that Grandmother\u2019s son and daughter not be present, and that Father\u2019s sister or brother could attend the visits as observers.\n{4} On May 3 and 8, 2000, Judge Hall conducted a trial on the merits of Grandmother\u2019s petition for visitation. After considering the factors set forth in Section 40-9-2(G) and giving special weight to the parents\u2019 wishes under Troxel, Judge Hall determined that it was in Child\u2019s \u201cbest interests to have regular, limited visitation with [Grandmother] under certain conditions.\u201d Again, in response to Father\u2019s concerns, the court set limitations on the visitation, including continuing the supervised visitation, prohibiting Grandmother from giving Child any gifts during visitation, prohibiting Grandmother\u2019s son and daughter from being present, and allowing Father to provide an additional observer at visitation. Judge Hall entered his findings of fact and conclusions of law on July 24, 2000. None of the findings of fact was challenged by either party. See Stueber v. Pickard, 112 N.M. 489, 491, 816 P.2d 1111, 1113 (1991) (stating that the unchallenged finding of the district court was binding on appeal).\n{5} On October 2, 2001, Mother and Father entered into a stipulated order in the divorce case giving Father sole legal and physical custody of Child \u201cuntil such time as [Mother] petitions this court for a modification thereof.\u201d The order had been signed by Mother and Father and their respective divorce attorneys and also stated \u201cthat this order shall have no adverse effects on the association rights of [Mother\u2019s] family with [Child].\u201d However, when the order was submitted to the district court, Judge Carol Vigil presiding, the court deleted that provision of the stipulated order on jurisdictional grounds because the grandparent visitation case was before Judge Hall. With that modified order, Father then moved within two weeks to terminate Grandmother\u2019s visitation, claiming that as the sole legal custodian of Child he was now entitled to the presumption that his decision regarding visitation was in Child\u2019s best interests. Grandmother responded that this single change in circumstance between the parents regarding legal custody was insufficient under the GVA to terminate the court-ordered visitation.\n{6} A hearing on Father\u2019s motion was set with an initial time allocation of one and one-half hours. In support of continued visitation, Grandmother subpoenaed three witnesses: Mother, Mother\u2019s attorney in the divorce proceedings, and the supervisor of the visits between Grandmother and Child. When the hearing was called, howevei\u2019, the court had set aside only thirty or forty minutes to hear the motion. Grandmother reminded the court of the amount of time that had initially been scheduled for the hearing and pointed out that she had three witnesses prepared to testify. The district court, with Judge Daniel Sanchez now presiding on rotation, did not allow Grandmother to call the witnesses and permitted only a proffer of them testimony by Grandmother\u2019s attorney. Mother would have testified that she did not intend for the change in custody to affect Grandmother\u2019s visitation and that had been one of the conditions for giving sole custody to Father. Her attorney would have testified that all parties had signed off on that condition in the stipulated order before Judge Vigil struck that provision from the order. The visitation supervisor would have testified about what she observed during the visits between Grandmother and Child and also that she thought the visits were good for Child. Grandmother argued to the court that Judge Hall had previously conducted a full hearing on whether visitation would be in the best interests of Child and applied a Troxel analysis to the facts of the case before granting visitation. Therefore, she argued, Father now had the burden under the GVA to come forward with evidence that there was a change in the best interests of Child after the court had awarded visitation.\n{7} After hearing the arguments of counsel and reviewing the stipulated order regarding custody, the court summarily ruled that Troxel gave Father, as the sole custodial parent, the discretion to terminate the visitation. Under Troxel, the court opined, Father \u201cas a fit parent and sole legal custodian\u201d was \u201centitled to a presumption that his decision not to allow visitation between his child and [Grandmother] is in the best interests of his child.\u201d The district court also found that the change in legal custody was a material change in circumstances. The court then granted the motion to terminate Grandmother\u2019s visitation effective immediately even though a visit with Child was scheduled for later that day. This appeal ensued.\nDISCUSSION\n{8} Grandmother argues that the district court\u2019s misapprehension of Troxel led to the erroneous termination of the previously ordered visitation with Child. She argues that the court erred by not permitting her to present evidence to rebut the presumption stated in Troxel that a parent\u2019s decision with regard to grandparent visitation is made in a child\u2019s best interest. Finally, she contends that the court incorrectly concluded that the change in Child\u2019s legal custody provided a sufficient basis to terminate the visitation. Grandmother contends that under the GVA a change in legal custody between the parents does not by itself constitute good cause for modifying the original court order granting visitation. See \u00a7 40-9-3. \u201cThis appeal raises questions of law, which we review de novo.\u201d Williams v. Williams, 2002-NMCA-074, \u00b6 8,132 N.M. 445, 50 P.3d 194.\n{9} Father responds that the sole basis of Judge Hall\u2019s decision to grant visitation was that the district court felt that it had to make the decision because Mother and Father disagreed over visitation by Grandmother. Father argued below that under Troxel he was entitled to a presumption that his decision not to allow visitation was in the best interests of Child. He stated that he continued to oppose any court-ordered visitation between Child and Grandmother, and that, as sole legal and physical custodian, he alone had the discretion to make the determination regarding visitation. On appeal, he argues that the district court, relying on Troxel, correctly deferred to Father\u2019s decision regarding visitation with Grandmother. He also contends that because Mother relinquished joint custody, her wishes regarding with whom Child may associate \u201cno longer [have] legal significance.\u201d\nTroxel v. Granville\n{10} In Troxel, the United States Supreme Court held in a plurality opinion that a Washington state statute authorizing non-parental visitation with a child, as applied to the facts of that case, unconstitutionally infringed on the due process right of the mother to make decisions concerning the care, custody, and control of her children. Troxel, 530 U.S. at 66-67, 75, 120 S.Ct. 2054. The Supreme Court articulated several concerns raised by the case. The first concern was the \u201cbreathtakingly broad\u201d nature of the Washington statute. Id. at 67, 120 S.Ct. 2054. The statute allowed any third party seeking visitation to bring any decision by parents concerning visitation with their children to a state court for review. Id. Second, the Supreme Court noted, \u201c[t]he problem here is not that the [trial court] intervened, but that when it did so, it gave no special weight at all to [the mother\u2019s] determination of her daughters\u2019 best interests.\u201d Id. at 69, 120 S.Ct. 2054. Third, the Supreme Court was concerned that the trial court had \u201cplaced on [the mother], the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.\u201d Id. The Supreme Court stated this decisional framework \u201cdirectly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.\u201d Id. Finally, the Court noted that the mother had not denied visitation entirely to the grandparents. Id. at 71, 120 S.Ct. 2054. The dispute had not been over whether visitation should be allowed, but rather over how much visitation there should be. Id. The combination of these factors led the plurality to conclude that the visitation order in that case was unconstitutional. Id. at 72, 120 S.Ct. 2054.\n{11} But the Court in Troxel specifically declined to find either the statute in question or grandparent visitation statutes in general to be unconstitutional. Id. at 73, 120 S.Ct. 2054. Observing \u201cthe changing realities of the American family,\u201d id. at 64, 120 S.Ct. 2054 and that, in response to those changes, all fifty states had enacted grandparent visitation statutes, id. at 73 n. *, 120 S.Ct. 2054 the plurality concluded that \u201c[b]ecause much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter,\u201d id. at 73, 126 S.Ct. 2054.\nGrandparent\u2019s Visitation Privileges Act\n{12} In New Mexico, grandparent visitation privileges are conferred by statute.\n\u201cNo grandparent visitation right existed at common law.\u201d Gutierrez v. Connick, 2004-NMCA-017, \u00b6 15, 135 N.M. 272, 87 P.3d 552 (relying on Lucero v. Hart, 120 N.M. 794, 799, 907 P.2d 198, 203 (Ct.App.1995)). In New Mexico, the GVA states that in certain defined circumstances a \u201cdistrict court may grant reasonable visitation privileges to a grandparent of a minor child.\u201d See \u00a7 40-9-2(A). In this case, Grandmother petitioned for visitation under Section 40-9-2(A) which applies in the event of a dissolution of marriage, legal separation, or the establishment of a parent-child relationship. Factors to be assessed by the district court when considering whether to grant visitation privileges to a grandparent include the following:\n(1) any factors relevant to the best interests of the child;\n(2) the prior interaction between the grandparent and the child;\n(3) the prior interaction between the grandparent and each parent of the child;\n(4) the present relationship between the grandparent and each parent of the child;\n(5) time-sharing or visitation arrangements that were in place prior to filing of the petition;\n(6) the effect the visitation with the grandparent will have on the child;\n(7) if the grandparent has any prior convictions for physical, emotional or sexual abuse or neglect; and\n(8) if the grandparent has previously been a full-time caretaker for the child for a significant period.\nSection 46-9-2(G). \u201c[Gjrandparents, in seeking application of the GVA, have the burden to show that visitation is appropriate.\u201d Ridenour v. Ridenour, 126 N.M. 352, 356-57, 901 P.2d 776, 774-75 (Ct.App.1995); Williams, 2062-NMCA-074, \u00b6 16, 132 N.M. 445, 50 P.3d 194. Under the GVA, grandparents must first meet the threshold requirements listed in Section 40-9-2(A)-(F) to be entitled to pursue visitation and then must present evidence relevant to the factors listed in Section 40-9-2(G)(1)-(5). Ridenour, 120 N.M. at 356, 901 P.2d at 774.\n{13} Further, in Lucero, this Court recognized additional factors which may be taken into account by the district court when considering a petition for grandparent visitation privileges, which included:\n(1)the love, affection, and other emotional ties which may exist between the grandparent and child; (2) the nature and quality of the grandparent-child relationship and the length of time that it has existed; (3) whether visitation will promote or disrupt the child\u2019s development; (4) the physical, emotional, mental, and social needs of the child; (5) the wishes and opinions of the parents; and (6) the willingness and ability of the grandparent to facilitate and encourage a close relationship among the parent and the child.\nLucero, 120 N.M. at 800, 907 P.2d at 204; accord Williams, 2002-NMCA-074, \u00b6 9, 132 N.M. 445, 50 P.3d 194.\n{14} This Court analyzed the GVA in light of the Troxel opinion in Williams, 2002-NMCA-074, 132 N.M. 445, 50 P.3d 194. The parents in Williams had challenged the award of the grandparent visitation, arguing that it was a violation of their rights and that the district court had been \u201cconstitutionally required to defer to their opinion.\u201d Id. \u00b6 8. They also argued that the district court had not given special weight to their opposition to grandparent visitation. Id. \u00b6 15. After a careful comparison of the parents\u2019 case to Troxel, this Court affirmed the award of grandparent visitation, concluding that the district court had given \u201cappropriate weight to the wishes of Parents and did its best to accommodate those wishes in fashioning its visitation order.\u201d Id. \u00b624. In arriving at this conclusion, we stated the following:\nWe agree with Parents that, as a general proposition, Troxel does require courts to give special consideration to the wishes of parents, and appropriately so. However, we do not read Troxel as giving parents the ultimate veto on visitation in every instance. Troxel may have altered, but it did not eradicate, the kind of balancing process that normally occurs in visitation decisions.\nId. \u00b6 23. Similarly, in this case, Father argued that Grandmother\u2019s visitation should be terminated because he was now the sole legal custodian of Child and did not want visitation between the two.\n{15} Section 40-9-3(A) of the GVA permits the district court to \u201cmodify the privileges or order [granting visitation privileges] upon a showing of good cause by any interested person.\u201d In this case, the court determined that the change of Child\u2019s legal custody constituted \u201ca material change of circumstance.\u201d Grandmother argued that the change in the custody arrangement between Mother and Father was not by itself sufficient to constitute \u201cgood cause shown\u201d under the GVA for terminating the original visitation order. In this case, she pointed out, Father had always been the de facto sole custodian of Child, and Judge Hall had considered that as one of the factors in granting visitation.\n{16} This Court has previously held that grandparent visitation privileges are not derivative of the rights of the parents but rather exist independently under the GVA. \u201cGrandparent visitation rights are derived from statute and are not contingent on the continuation of the parent-child legal relationship.\u201d Lucero, 120 N.M. at 798, 907 P.2d at 202 (quoted authority and quotation marks omitted); see also Ridenour, 120 N.M. at 357, 901 P.2d at 775. In Lucero, this Court held that the trial court, upon the proper showing, \u201ccould authorize grandparent visitation even though Grandmother\u2019s son had relinquished his parental rights\u201d to permit stepparent adoption. 120 N.M. at 798, 907 P.2d at 202; see \u00a7 40-9-2(F). Under the GVA, grandparents may petition for visitation in other circumstances including when the grandchild has been adopted, Section 40-9-2(E), and when one or both parents have died, Section 40-9-2(B).\n{17} There is nothing in Troxel or the resulting case law to suggest that the Supreme Court considered the presumption that a fit parent acts in the best interests of his or her child to be other than a rebuttable presumption. See Troxel, 530 U.S. at 87, 120 S.Ct. 2054 (Stevens, J. dissenting); accord McGovern v. McGovern, 201 Ariz. 172, 33 P.3d 506, 511 (Ct.App.2001); Fenn v. Sher riff, 109 Cal.App.4th 1466, 1 Cal.Rptr.3d 185, 195 & n. 4 (2003); Crafton v. Gibson, 752 N.E.2d 78, 96-97, 98 (Ind.Ct.App.2001); Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263, 1273 (Ct.Spec.App.2003); Blakely v. Blakely, 83 S.W.3d 537, 545 (Mo.2002); Glidden v. Conley, 820 A.2d 197, 204-05 (Vt. 2003).\n{18} As this Court has stated, the presumption does not create a \u201cbright-line test for the consideration of parental rights in the visitation context\u201d that would give parents the \u201cultimate veto on visitation in every instance.\u201d Williams, 2002-NMCA-074, \u00b6\u00b6 16, 23, 132 N.M. 445, 50 P.3d 194; see also Herrick, 838 A.2d at 1273 (\u201cIf the custodial parent\u2019s preference were absolute, the need for a grandparent visitation statute would be obviated, for a parent could deny visitation without recourse.\u201d). The presumption simply alters the weighing process to give special weight to the wishes of the parents. Williams, 2002-NMCA-074, \u00b6 23, 132 N.M. 445, 50 P.3d 194. The district court must still engage in a fact-specific analysis as it weighs the factors set forth in the GVA. Judge Hall, after a four day trial, had crafted a resolution that considered the factors defined in the GVA and our case law, as well as giving special weight to the parents\u2019 wishes under Troxel. In this case, there was already a court order in place granting Grandmother visitation. Because Father was attempting to modify that order, he had the burden of establishing good cause for that modification under Section 40-9-3(A). The court relied on the language in Troxel that \u201cthere is a presumption that fit parents act in the best interests of their children,\u201d 530 U.S. at 68, 120 S.Ct. 2054 to summarily terminate the visitation between Grandmother and Child without allowing Grandmother the opportunity to rebut that presumption. However, Troxel does not shift the burden away from a parent who seeks to modify an existing order granting grandparent visitation. Consequently, the district court erred when it perfunctorily deferred to Father in the matter of visitation. See Fenn, 1 Cal.Rptr.3d at 195 (\u201cGiving the parent\u2019s determination \u2018special weight\u2019 is different than insulating the parent\u2019s determination from any court intervention whatsoever.\u201d).\nAdditional Issues on Appeal\n{19} Father raises two arguments on appeal. First, he claims that after Troxel the GVA on its face is unconstitutional and, second, that in Williams this Court violated the separation of powers between the legislature and the judiciary. Father\u2019s constitutional claim is that Troxel requires a court to give special weight to the wishes of the parents, while the GVA does not require the court to do so. He acknowledges that Lucero, in listing additional factors for consideration, stated that a court \u201cmay consider\u201d the parents\u2019 wishes but contends that this language falls short because it is not mandatory. See Lucero, 120 N.M. at 800, 907 P.2d at 204.\n{20} New Mexico has adopted certain rules of statutory construction for determining the constitutionality of a statute. City of Farmington v. Fawcett, 114 N.M. 537, 540, 843 P.2d 839, 842 (Ct.App.1992). A reviewing court begins its inquiry with a presumption that a statute is valid. City of Albuquerque v. Jones, 87 N.M. 486, 488, 535 P.2d 1337, 1339 (1975); accord 2A Norman J. Singer, Sutherland Statutory Construction \u00a7 45.11 (6th ed.2000). \u201cA court must uphold a statute unless satisfied beyond a reasonable doubt that the legislature exceeded the bounds of the constitution in enacting it.\u201d State ex rel. Pub. Employees Ret. Ass\u2019n v. Longacre, 2002-NMSC-033, \u00b6 10, 133 N.M. 20, 59 P.3d 500. \u201c[A]ll doubts as to its constitutionality\u201d must be resolved \u201cin favor of the validity of the law.\u201d Gruschus v. Bureau of Revenue, 74 N.M. 775, 777, 399 P.2d 105, 106 (1965). A party challenging the constitutionality of a statute \u201chas the burden of establishing its invalidity.\u201d City of Albuquerque, 87 N.M. at 488, 535 P.2d at 1339. That burden has not been met in this case.\n{21} Contrary to Father\u2019s contentions, Troxel does not mandate a determination that the GVA is facially unconstitutional. Troxel does not prohibit judicial intervention when a parent refuses grandparent visitation, but does require that a court accord \u201csome special weight to the parent\u2019s own determination\u201d when applying a nonparental visitation statute. 530 U.S. at 70, 120 S.Ct. 2054. The GVA is capable of, and has been, interpreted to accord deference to the parents wishes, although the statute itself does not specifically require such deference. See, e.g., Con-nick, 2004-NMCA-017, \u00b617, 135 N.M. 272, 87 P.3d 552; Williams, 2002-NMCA-074, \u00b6 21-24, 132 N.M. 445, 50 P.3d 194; Ridenour, 120 N.M. at 354, 901 P.2d at 772. We note that the language of the GVA is more narrowly drafted than that of the Washington statute at issue in Troxel. If the Supreme Court did not conclude that the \u201cbreathtaMngly broad\u201d Washington statute was invalid on its face, then it is reasonable for this Court to conclude that GVA is not unconstitutional on its face. Further, in Troxel the Supreme Court stated that it would be hesitant to hold specific nonparental visitation statutes unconstitutional per se. 530 U.S. at 73, 120 S.Ct. 2054. Rather, the Supreme Court, agreeing with Justice Kennedy in his dissent, stated that \u201cthe constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied.\u201d Id.\n{22} Father also contends that this Court violated the separation of powers between the legislature and the judiciary in Williams. As we understand Father\u2019s argument, he is claiming that the Williams Court added parental fitness as a factor to be considered under the GVA. Father appears to misapprehend the discussion in Williams. See 2002-NMCA-074, \u00b6\u00b6 25-28, 132 N.M. 445, 50 P.3d 194. The parents in that case, not this Court, argued that Troxel, not the GVA, required a finding by the district court of parental unfitness before grandparent visitation could be granted against their wishes. Id. \u00b6 25. Without such a finding, the parents argued, the district court \u201cwas constitutionally required to defer to their opinion.\u201d Id. \u00b6 8. This Court concluded that, as a matter of law, that Troxel did not impose such a requirement and rejected parents\u2019 argument. Id. \u00b6 25.\nCONCLUSION\n{23} We reverse the district court\u2019s order terminating Grandmother\u2019s visitation. Mindful of the time that has passed since the termination order was granted, we remand to the district court for an evidentiary hearing. In the interest of judicial economy, given the history of this case and the fact-specific nature of the inquiry, we remand the ease to the original presiding judge, Judge Hall, to determine whether, at the present time and as circumstances now exist, it would be in Child\u2019s best interests to continue visitation with Grandmother and whether a guardian ad litem should be appointed for Child. See Lucero, 120 N.M. at 799, 907 P.2d at 203 (stating that when there is a parental challenge to grandparent visitation, the court \u201cshould also consider whether it would be beneficial to appoint a guardian ad litem to represent the child in the face of conflicting interests\u201d).\n{24} IT IS SO ORDERED.\nALARID and KENNEDY, JJ., concur.", "type": "majority", "author": "ROBINSON, J." } ], "attorneys": [ "Mary Jo Snyder, Santa Fe, for Appellant.", "Robert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, for Appellee Raymond M. Lobato.", "Susan Deem Lobato, Santa Fe, Pro Se Appellee." ], "corrections": "", "head_matter": "2004-NMCA-102\n96 P.3d 1186\nJosephine DEEM, Petitioner-Appellant, v. Raymond M. LOBATO and Susan Deem Lobato, Respondents-Appellees.\nNo. 23,089.\nCourt of Appeals of New Mexico.\nJune 23, 2004.\nCertiorari Denied, No. 28,802, Aug. 4, 2004.\nMary Jo Snyder, Santa Fe, for Appellant.\nRobert E. Tangora, Robert E. Tangora, L.L.C., Santa Fe, for Appellee Raymond M. Lobato.\nSusan Deem Lobato, Santa Fe, Pro Se Appellee." }, "file_name": "0266-01", "first_page_order": 298, "last_page_order": 304 }