Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Kristy Brockway, mother of minor child L.R.S., appeals from an order of the Sixth Judicial District Court, Park County, granting Vicki Rae Schwarz and Quentin Gotfried Schwarz, L.R.S.s paternal grandparents, visitation. We reverse and remand for further proceedings.
¶2 We restate the issue on appeal as:
Absent a consideration of whether the minor childs mother was fit, did the District Court err in awarding visitation, pursuant to § 40-4-228, MCA, to the childs paternal grandparents over mothers objection?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Kristy Brockway (Mother) and Austin Schwarz (Father) are L.R.S.s parents. Mother and Father divorced when L.R.S. was a baby, and as part of their dissolution proceeding stipulated to a fifty-fifty parenting schedule. After the parties separated, Father lived with his parents, Vicki and Quentin Schwarz (Grandparents), and, accordingly, L.R.S. also lived with Grandparents during Fathers parenting time. Fathers brother, Tristan Schwarz, lived with Grandparents as well. Both Father and Tristan struggled with chemical dependency and addiction issues.
¶4 When Fathers dependency problems came to light, Mother and Grandparents became concerned with Fathers ability to parent L.R.S. Eventually, Father began an out-of-state inpatient treatment program and the District Court ordered that any contact between Father and L.R.S. needed to be approved by L.R.S.s counselor. Grandparents remained close with L.R.S. and worked with Mother to facilitate visitation. The parties relationship became strained, however. Mother did not want Tristan around L.R.S. and further requested that Grandparents not discuss Father with L.R.S. Instead, she requested that Grandparents redirect any of L.R.S.s questions about Father back to her. Mother observed that her instructions were not being followed, as L.R.S. had contact with Tristan and Grandparents discussed Father with L.R.S. Thus, Mother was no longer comfortable with L.R.S.s contact with Grandparents and stopped allowing visitation.
¶5 Grandparents subsequently filed a petition in District Court, seeking visitation with L.R.S. After a hearing, the District Court issued an order awarding Grandparents visitation pursuant to § 40-4-228(3), MCA, finding that visitation with Grandparents was in L.R.S.s best interests as analyzed under § 40-4-212, MCA. Mother appeals that order.
STANDARD OF REVIEW
¶6 We review a district courts interpretation and application of statutes for correctness. Polasek v. Omura , 2006 MT 103, ¶ 8, 332 Mont. 157, 136 P.3d 519.
DISCUSSION
¶7 Mother appeals the District Courts order awarding Grandparents visitation. She contends that the District Court misapplied Montana law by failing to determine her fitness as a parent before granting Grandparents visitation. Grandparents respond, arguing that the District Court did not have to determine whether Mother was a fit parent because they stipulated to the fact that she was. Thus, they contend that the District Court acted appropriately in granting them grandparent visitation with L.R.S.
¶8 Natural parents have a fundamental constitutional right to make decisions concerning the care, custody, and control of their children. Polasek , ¶¶ 14-15 (quoting Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ) (internal quotations omitted); accord Glueckert v. Glueckert , 2015 MT 107, ¶ 11, 378 Mont. 507, 347 P.3d 1216 ;
In re C.T.C. , 2014 MT 306, ¶ 18, 377 Mont. 106, 339 P.3d 54. Thus, it is presumed that a fit parents wishes are in the best interests of the child. In re C.T.C. , ¶ 14 (citing Polasek , ¶ 15, and In re Grandparent/Grandchild Contact of C.A.G. , 2014 MT 290, ¶¶ 12, 14, 376 Mont. 540, 337 P.3d 751 ). Given parents constitutional rights to make decisions concerning the care, custody, and control of their children, courts must follow specific statutory guidelines when granting a nonparents visitation request over a parents objection. Snyder v. Spaulding , 2010 MT 151, ¶¶ 10-18, 357 Mont. 34, 235 P.3d 578 (explaining how, following our analysis in Polasek , the Legislature amended § 40-9-102, MCA, to better protect parents constitutional rights).
¶9 There are multiple statutes regarding nonparent visitation requests and the petitioners relationship with the child dictates which statute applies. On one hand, a nonparent may seek visitation with a child under § 40-4-228, MCA. On the other hand, and more specifically, a grandparent may seek visitation with a child under § 40-9-102, MCA. Under the rules of statutory interpretation as set forth in § 1-2-102, MCA, courts must apply the more specific provision, § 40-9-102, MCA, to a grandparents visitation request. Accordingly, the District Court erred when it applied § 40-4-228, MCA, to grant Grandparents visitation request.
¶10 Further, the District Courts order failed to give Mothers constitutional right as L.R.S.s parent proper credence. Normal parenting plan standards do not apply to a grandparents request for contact with his or her grandchild.
Snyder , ¶¶ 10, 17-18. When a grandparent petitions for visitation over a parents objection, a court must first make a determination as to whether the objecting parent is a fit parent. Section 40-9-102(2), MCA ; accord Polasek , ¶ 15. Fitness is determined on the basis of whether the parent adequately cares for the parents child. Section 40-9-102(2), MCA. If a fit parent objects to grandparent contact, the court can grant contact only if it finds, based upon clear and convincing evidence, that the contact with the grandparent would be in the best interest of the child and that the presumption in favor of the parents wishes has been rebutted. Section 40-9-102(4), MCA ; accord Polasek , ¶ 15 ; In re C.A.G. , ¶ 12.
¶11 Grandparents argue that they stipulated to Mothers fitness by not disputing that she was a fit parent, and therefore the District Courts order is sufficient. However, the record does not contain specific evidence of any such stipulation by Grandparents as to Mothers fitness; not disputing Mothers fitness is not the same as stipulating to her fitness. Even if the parties did stipulate that Mother was a fit parent, the District Court did not contemplate Mothers fitness in granting Grandparents visitation request, which is required by § 40-9-102(2), MCA. Furthermore, the District Court still needed to follow the guidelines in § 40-9-102(4), MCA, for granting grandparent visitation. Accordingly, the District Court could only grant Grandparents visitation with L.R.S. upon finding, based on clear and convincing evidence, that contact with Grandparents was in L.R.S.s best interests and that the presumption in favor of Mothers wishes was rebutted. See § 40-9-102(4), MCA. The District Courts findings, citing § 40-4-228(3), MCA, and applying § 40-4-212, MCA, best interest factors, are not sufficient. The District Court erred in failing to apply the correct statute and in failing to appropriately protect Mothers constitutional right to parent L.R.S. We therefore reverse and remand this case for further proceedings.
CONCLUSION
¶12 When considering whether grandparents are entitled to visitation over a parents objection, courts must apply § 40-9-102, MCA. The District Court erred in applying § 40-4-228, MCA, to this case involving grandparent visitation, where § 40-9-102, MCA, is the controlling statute. When determining whether to order grandparent visitation, the court must make a determination as to whether the objecting parent is a fit parent based on whether the parent adequately cares for the child. Section 40-9-102(2), MCA. Then, visitation may only be granted over a fit parents objection if the court finds that contact with the grandparent would be in the best interest of the child and that the presumption in favor of the parents wishes has been rebutted. Section 40-9-102(4), MCA. In this case, the District Court awarded Grandparents visitation without determining whether Mother was a fit parent and, assuming fitness, without rebutting a presumption in favor of her wishes. We reverse and remand for further proceedings consistent with this Opinion.
We Concur:
MIKE McGRATH, C.J.
DIRK M. SANDEFUR, J.
JIM RICE, J.
Justice Ingrid Gustafson, specially concurring.
¶13 While I concur with the majority that this matter should be reversed and remanded to the District Court for consideration as to whether Grandparents should be provided visitation pursuant to § 40-9-102, MCA, I do not necessarily agree the District Court failed to give Mothers constitutional right as L.R.S.s parent proper credence as stated by the majority.
¶14 It appears Grandparents did not assert Mother was unfit and, in fact, asserted at the hearing they sought only visitation. The District Court noted both sides in this matter desire a set schedule, should the Court determine that visitation is in the best interests of L.R.S. Based on the parties positions at the hearing and the District Courts Order on Parenting Plan thereafter, the District Court impliedly found Mother to be fit. The District Court then set forth several considerations in concluding visitation with Grandparents was in L.R.S.s best interests. While the District Court may very well have reached the same conclusion with regard to grandparent-grandchild contact that it did, the District Court erred in not articulating how the specific standard set forth in § 40-9-102(4), MCA, for granting grandparent-grandchild contact was met. As such, I agree it is appropriate to reverse and remand for specific consideration under § 40-9-102, MCA.