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TROXEL V. GRANVILLE: THE SUPREME COURT WADES INTO THE QUAGMIRE OF
THIRD PARTY VISITATION
*Previously published in Divorce Litigation, a monthly
published by the National Legal Research Group in July, 2000. (c) copyright
2000 Ronald W. Nelson
At common law, third
parties, including grandparents, had no legal rights of access to
other’s children. A parent had complete authority to grant or deny
grandparents the privilege of visiting their grandchildren and that parental
decision was final. Nonetheless, in recent
years, with the increasing divorce rate, the increasing mobility of American
society, the general breakdown of extended family contact and other societal
pressures, third party visitation has been sought more and more. For over
thirty years third party visitation rights, primarily by grandparents, have
been an increasingly contentious area within domestic relations law. Some have pushed laws
seeking to expand the right of third parties to petition and obtain some kind
of visitation with a child, originally used primarily when the third party
seeking visitation was the parent of a deceased adult child whose surviving
spouse or lover refused contact of the child by those grandparents.
On June 5, 2000, near the end of its October, 1999 term the Supreme
Court waded into this contentious quagmire. By a 6-3 vote, the Court struck
down a Washington state law that allowed visitation with a child
“by any person” “at any time” on a court’s
determination that the child’s best interests would be served by that
visitation. Far from a clear enunciation of the law on constitutional issues
relating to third party visitation, the multiplicity of opinions created by
the decision
raises more questions than it answers. Among those questions are: What is the
constitutional standard to be applied in an analysis of the constitutionality
of third party visitation statutes in general? What is the hierarchy of
visitation rights among different classes of third parties, or is there any?
Do grandparents have just as much, or just as little, right as any other
relative or any other non-parent to visit their children’s children?
Will any general third party visitation statute withstand constitutional
scrutiny? Strangely enough, even the question of whether a statute authorizing
grandparent visitation itself is not answered by this decision. Also, the
question is left open whether, under a statute more clearly drawn and less
broadly worded, a court could constitutionally order grandparent visitation
under exactly the same circumstances in which the trial court in the Troxel case granted visitation overturned by the Supreme
Court’s decision.
The underlying facts
presented a fairly typical situation in which grandparent visitation is
often sought:
Tommie Granville (the subject children’s mother) and Brad Troxel (the subject children’s father) had a
non-marital relationship during which they had two daughters -- Isabelle and Natalie. Brad’s
parents were Jenifer
and Gary Troxel who eventually sued Tommie Granville for visitation of the two grandchildren. Tommie Granville and Brad Troxel separated in 1991 and both Brad and Tommie had continuous contact with the two children
after their separation. Brad lived with his parents and regularly brought his
daughters to his parents’ home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see the children on a
regular basis after Brad’s death, their visitation was limited by Tommie Granville in October 1993 when she informed the Troxels that she wanted to limit their visitation with
her daughters to one short visit per month.
In December 1993, the Troxels
filed a petition to obtain visitation rights with their grandchildren against
Tommie Granville.
The Troxels used as basis for their petition two
separate Washington
statutes.
As a result of decisions by the trial court and Washington State appellate
courts, only one of these two statutes ended up considered by the Supreme
Court in its constitutional decision – Section 26.10.160(3), which
provided:
Any person may petition the court for visitation rights at any time
including, but not limited to, custody proceedings. The court may order
visitation rights for any person when visitation may serve the best interest
of the child whether or not there has been any change of circumstances.
An interesting twist in
the case as it relates to the ultimate outcome was the positions of the
parties at trial. The Troxels requested two
weekends of overnight visitation each month and two additional weeks of
visitation each summer. Tommie Granville did not oppose visitation by the Troxels altogether. Instead, she asked that the trial
court limit the Troxels time with the children to
one visitation day each month with no overnight stay. In 1995, the trial court
issued a visitation order granting the Troxels one
weekend per month, one week during the summer, and four hours on the birthday
of each of the petitioning grandparents.
Tommie
Granville appealed the trial court’s
order. During the pendency of that appeal Tommie
Granville married. Without addressing the
substantive issues of the appeal, the Washington State Court of Appeals
remanded the case to the trial court for further findings of fact and
conclusions of law. On remand, the Superior
Court found that visitation with the Troxels would
be in the children’s best interests. In doing so, the trial court found
that “[the Troxels] are part of a large,
central, loving family, all located in [the] area, and the [Troxels] can provide opportunities for the children in
the areas of cousins and music.” In doing so, the trial court stated
that it had taken into consideration all appropriate factors regarding the
best interest of the children and that it had considered all the testimony
placed before it in making those orders. The trial court further found that
the children would benefit from spending quality time with the Troxels if that time were balanced with time for the
children’s nuclear family. On these findings, the court determined that
the children’s best interests were served by their spending time with
the Troxels as well as their mother and
stepfather’s other children. Approximately nine months after the trial
court entered its order on remand, Granville’s husband formally adopted
Isabelle and Natalie.
The Washington State Court of Appeals eventually reversed the trial
court’s order of visitation finding that third parties lacked standing
to seek visitation with other people’s children under Section
26.10.160(3) unless a custody action was pending between the parents of the
subject children. This limitation on the statutory sweep was stated by the
Court of Appeals to be “consistent with the constitutional restrictions
on state interference with parents’ fundamental liberty interest in the
care, custody, and management of their children.” By this manner of
deciding the case, the Court of Appeals avoided a direct constitutional
decision and relied instead on statutory interpretation.
When presented the issue on review, however, the Washington State Supreme
Court saw the issues differently. The Court disagreed with the implied
limitation placed by the Court of Appeals on the language of Section
26.10.163(3) and instead found that the plain language of the statute gave
grandparents, and others, standing to seek visitation regardless of whether a
custody action was then pending between the parents of the subject children.Based on this broad
reading of the statute, the Washington State Supreme Court determined the
statute unconstitutionally infringes on a parent’s federal right to
rear their children. This conclusion was based on two separate criticisms of
the statute. First, that the United States Constitution permits State
interference with a parent’s right to rear their children only to
prevent harm or potential harm to the child. Since Section 26.10.160(3)
included no requirement that such harm or potential harm be present, the
statute failed to include a necessary element to be constitutionally sound.
Secondly, the statute too broadly interfered with a parent’s right
by allowing “any person” to seek and obtain visitation with that
parent’s children over objection of that parent “at any
time” upon a mere finding by a judge that the child’s best
interests would be served by that visitation. As stated by the Washington
State Supreme Court: “It is not within the province of the state to
make significant decisions concerning the custody of children merely because
it could make a ‘better’ decision.” Among the persons and
agencies who should be given power to decide which third parties children are
able to visitation “parents should be the ones to choose whether to
choose whether to expose their children to certain people or ideas.” This is the status of
the case when the United States Supreme Court accepted certiorari.
In deciding the case, the Supreme Court reviewed recent societal trends
and demographic changes that have occurred over the history of the United
States. Noting that “[t]he
nationwide enactment of nonparental visitation
statutes is assuredly due, in some part, to the States’ recognition of
these changing realities of the American family,” and the fact that
grandparents and other relatives often take over “parental roles”
in many families, the Court observed that this extension of visitation rights
to nonparents “comes with an obvious
cost” by placing a “substantial burden on the traditional
parent-child relations.”
In developing the
underpinnings of its decision, the Court stated that it had long held that
the Due Process Clause of both the Fifth and Fourteenth Amendments to the
United States Constitution “provides a heightened protection against
government interference with certain fundamental rights and liberty
interests.” The Court further
stated that one of the oldest recognized fundamental liberty interests
protected by the Due Process Clause is the interest of a parent to the care,
custody and control of their own children. Under this long held
view that parents have a fundamental right to decide matters regarding their
children, the Court indicated that “so long as a parent adequately
cares for his or her children (i.e. is fit), there will normally be no
reason for the State to inject itself into the private realm of the family to
further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.”
With this underpinning
of constitutional law, and without directly addressing the language of the
Washington State statute, the plurality observed that one obvious difficulty
with the way in which the case had been addressed by the trial court was that
in determining whether the grandparents should be entitled to visitation,
“no special weight” was given to the parent’s own decision
about that parent’s child’s best interests. Instead of presuming
that a parent would naturally make an appropriate decision for that
parent’s own child, the trial court presumed that some kind of
visitation with the grandparents would be best, regardless of the
parent’s own decision on that subject. Instead, ‘[t]he
judge’s comments suggest that he presumed the grandparents’
request should be granted unless the children would be ‘impact[ed] adversely.’” This decisional
framework alone, according to the Supreme Court “directly contravened
the traditional presumption that a fit parent will act in the best interest
of his or her child” and “failed to provide any protection for [a
parent’s] fundamental constitutional right to make decisions concerning
the rearing of [that parent’s own children].
Notwithstanding the fact
that it found that the specific application of Washington State statute by
the trial judge to be flawed because of the failure to recognize any special
weight should be given the parent’s decision, the plurality proceeded
to directly address the constitutionality of the Washington State statute.
The rationale behind the decision refusing to avoid the constitutional
decision was explained by plurality as tied to the fact that “the
burden of litigating a domestic relations proceeding can itself be ‘so
disruptive of the parent-child relationship that the constitutional right of
a custodial parent to make certain basic determinations for the child’s
welfare can be implicated.’”
In making the decision
that the Washington State statute was an unconstitutional abridgement of a
parent’s Fifth and Fourteenth Amendment due process right to make
decisions concerning the care, custody and control of that parent’s
children, the plurality rested on a very simple statement fraught, however,
with internal complexity that the Washington nonparental
visitation statute unconstitutionally infringes on fundamental parental
rights because it is “breathtakingly broad.” Thus, instead of being
guided by any requirements within the statute meant to protect the decisional
rights of a parent, the statute placed the best interest determination solely
in the hands of the judge in which instance a disagreement between the
parent’s and judge’s view of what would be best for the child
would necessarily be determined by the judge. The problem addressed
by the plurality was not that Washington State had a statute allowing third party visitation in particular
circumstances, but that the statute provided no guidance to trial
court’s and did not limit the circumstances under which it could be
ordered to those in which it was particularly appropriate. In fact, the
plurality noted that the third party visitation statutes of many states
included specific protections to assure that a trial judge did not have
unbridled discretion in ordering that visitation.
One of the many
interesting aspects of the Supreme Court decision is that although the Court
found that the long standing constitutional principal that parents have a
fundamental right in the care and upbringing of their children means that
“at least some special weight must be given to the parent’s own
determination” about whether any third
party may have access to or visitation with their children, the Court stopped
short of requiring that any particular set of circumstances or conditions be
in place before a statute could authorize a court to order third party
visitation. While the Court recognized that it is first up to the parent to
decide those persons with whom a child associates it also recognized that
“[i]n an ideal world, parents might always
seek to cultivate the bonds between grandparents and their grandchildren.
Needless to say, however, our world is far from perfect, and in it the
decision whether such an intergenerational relationship would be beneficial
in any specific case is for the parent to make in the first instance.
Thus, the Court stopped short even of allowing interference in the decision
of a fit parent if the factual circumstance were right and the statute under
which that visitation was sought had proper safeguards for protection of the
parent’s fundamental right of parenting. Thus, the plurality of four
Justice Souter also wrote a decision concurring in the decision
but felt that all the court needed to do to reach its decision was to state
that the Washington State Supreme Court correctly followed the Supreme
Court’s prior decisions in finding that a statute allowing “any
person” at “any time” to petition for and receive
visitation rights under the “best interest” standard was too
broad.
Justice Souter stated that although the Supreme Court’s
prior decisions “have not set out exact metes and bounds to the
protected interest of a parent in the relationship with his child,”
there was no need to do so in this case either since the Washington State statute clearly reached too far. Under any other
analysis, according to Justice Souter, the
fundamental right of a parent to upbringing of a child “would be a
sham” if it failed to encompass the right of that parent to be from
judicially compelled visitation merely because the judge believed that judge
“could make a better decision” when petitioned by “any
person” for that visitation that did an objecting parent.
Like the plurality, Justice Souter did not define the standard of review that
should be applied to a court’s analysis of third party visitation
statutes. Instead, he does “not question the power of the State’s
highest court to construe its [own] domestic statute and to apply a demanding
standard when ruling on [that statute’s] facial validity.” The ability of a State
to apply a high standard of review was of particular concern to Justice Souter in this case since, as was observed by Justice O’Connor in the plurality opinion, the best interest
standard “contains no requirement that a court accord the
parent’s decision any presumption of validity or any weight
whatsoever.” Thus, the Justice left
for another day whether “harm may be required” to allow a State
the power to interfere in a parent’s fundamental right of parenting and
the exact perameters of that right since this case
does “not call for turning any fresh furrows in the ‘treacherous
field’ of substantive due process.
Justice Thomas, on the
other hand, is the only Justice who, though not conceding that a parent has a
right to parental control under the Constitution since there is no such right
specifically identified in the language of the Constitution, nonetheless expressed
his belief that if there is such a right recognized by the Constitution, that right should be
accorded substantially higher protection than that granted by the plurality.
Instead of an undefined standard presented by the plurality, Justice Thomas states that where a fundamental right is found to exist, any
impingement on that right should be subject to a strict scrutiny analysis. In the end,
“because Washington lacks even a legitimate governmental interest
– to say nothing of a compelling one – in second-guessing a fit
parent’s decision regarding visitation with third parties” Justice Thomas believed the Washington State Supreme Court’s decision should
be affirmed.
The outcome of future
cases under a constitutional analysis is also made unclear because though
three justices dissented from the Court majority’s decision to affirm
the Washington State Supreme Court’s decision to invalidate Washingtons’ third party visitation statute mainly on
procedural grounds rather than an outright acceptance that the Washington State statute would be valid in all its applications.
Justice Stevens, for example, believed not only that the Court
in this case “wisely declines to endorse either the holding or the
reasoning of the Supreme Court of Washington,” but was of the further
opinion that the Court “would have been wiser to deny certiorari.” Given the fact that the
Court had accepted certiorari, however, Justice Stevens felt that the Court
should have recognized that though a fundamental right exists for a parent to
care for a child, those rights “have never been regarded as absolute,
but rather are limited by the existence of an actual, developed family
relationship with a child, and are tied to the presence or absence of some
embodiment of family.” Of particular interest
in this regard is his statement that “[w]hile this Court has not yet had occasion to elucidate the
nature of a child’s liberty interests in preserving established
familial or family-like bonds, it seems to me to be extremely likely that, to
the extent parents and families have fundamental liberty interests in
preserving such intimate relationships, so, too, do children have these
interests, and so, too, must their interests be balanced in the
equation.” This statement is
especially interesting since it is the only one of all the many opinions filed
by the Justices that expressly addresses the child’s (as opposed to the
parent’s) constitutional rights. In the end, however, notwithstanding
these pearls of thought, Justice Stevens indicated that he would not venture
to apply those thoughts in the instant case since ‘[f]or the purpose of
a facial challenge like this, I think it safe to assume that trial judges
usually give great deference to parents’ wishes, and I am not persuaded
otherwise here.”
Justice Kennedy, on the other hand, felt that the rationale
supporting the decision of the Washington State Supreme Court was fatally
flawed for two reasons and that, as such, the
case should be remanded to the Washington Supreme Court for further
proceedings to clarify its position on those two areas. “The first flaw
the State Supreme Court found in the statute is that it allows an award of
visitation to a non-parent without a finding of harm to the child would
result if visitation were withheld. . . .” Justice Kennedy is of the view that this theory “is too broad to be correct,
as it appears to contemplate that the best interests of the child standard
may not be applied in any visitation case.” Further, although some
cases may arise in which application of the best interests standard
“would give insufficient protection to protection to the parent’s
constitutional right to raise the child without undue interference from the
state . . . it is quite a different matter to say, as I understand the
Supreme Court of Washington to have said, that a harm to the child standard
is required in every case.” Given that error, the
reliance by the Washington Supreme Court on, perhaps, improper application of
the best interests standard, the case needed to be remanded for a further
definition of the Washington Supreme Court’s view of that language.
The second flaw in the
Washington State Supreme Court’s opinion for Justice Kennedy was its
failure to recognize that there may be many instances – “perhaps
a substantial number of cases – in which a third party, by acting in a
caregiver role over a significant period of time, has developed a
relationship with a child which is not necessarily subject to absolute
parental veto.” Thus, Justice Kennedy
sees the probability that there may be instances in which it would be fully appropriate
under the constitution for a court to find that a third party not otherwise
related to a child might validly gain visitation over a parent’s
objections because of an established relationship and not have to incur any
heightened burden when presenting that issue to a court. “Indeed,
contemporary practice should give us some pause before rejecting the best
interests of the child standard in all third party visitation cases, as the Washington court has done. The standard has been recognized
for many years as a basic tool of domestic relations law in visitation
proceedings.
Accordingly, Justice
Kennedy would avoid decision in the case remanding the
case to the Washington State Supreme Court for further development of the
standards under which the statute might be applied.
Aside from its
determination of a constitutional issue regarding parent versus third party
rights, however, the multiplicity of opinions presented by the Justices
present many other interesting glimpses into the thoughts of the Justices.
The one unifying principal recognized (or partially recognized) by all the
Justices?: That Supreme Court “case law has recognized that a custodial
parent has a fundamental constitutional right to determine, without
interference from the state, how best to raise, nurture, and educate the
child.”
Finally, Justice Scalia, while of the opinion that “a right of
parents to direct the upbringing of their children is among the ‘unalieanble Rights’ with which the Declaration of
Independence proclaims ‘all Men . . . are endowed by their
Creator,’” and “is also among the ‘othe[r] [rights] retained by the people’” under the Ninth
Amendment, he also does “not believe that the power which the
Constitution confers upon me as a judge entitles me to deny legal effect
to laws that (in my view) infringe upon what is (in my view) that unenumerated right.” Thus, although Justice Scalia firmly believes that a fundamental right for
parents to decide matters regarding their children exists under the
Constitution, he would leave that task to the elected officials of the
people. He also believes that a recognition of such a power by the Courts
would inexorably lead to involvement of the federal judiciary in family law
cases and would be “ushering in a new regime of judicially prescribed,
and federally prescribed, family law.” In fact, the Justice
sees that as an undeniable result of any recognition of such a power,
regardless “whether we affirm or reverse the judgment below, or remand
as Justice Stevens or Justice Kennedy would do.” “I have no reason
to believe that federal judges will be better at this than state
legislatures; and state legislatures have the great advantages of doing harm
in a more circumscribed area, of being able to correct their mistakes in a
flash, and of being removable by the people.” Accordingly, Justice Scalia would reverse the decision of the Washington
State Supreme Court since the legislatures, and not the courts, should decide
such issues as the appropriate protections to be accorded a parent’s right
to care for their child and the circumstances under which visitation may be
ordered.
What are the lessons of
the Troxel case? A strict reading indicates that a
parent’s right to determine the persons with whom a child visits is up
to that parent and the state cannot interfere with that right on a mere
determination that the child’s best interest would be served by such
third party visitation. A closer reading, however, indicates that the
decision reaches little further than invalidating one state statute which
granted exceedingly broad powers to the courts in an area of protected
fundamental interests. The definition of the ability of legislatures to act
in this area will have to wait for yet more cases to drain the quagmire.
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