Grandparent Visitation Article


by Ronald W. Nelson PA

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.[1] 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.[2] 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. [3]

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[4] 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.[5]

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.[6] 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.[7]

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.[8] 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.[9]

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.[10] 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.”[11] 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.[12]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.”[13] 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.”[14] 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.”[15]

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.”[16] 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.[17] 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.”[18]

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.[19] 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.’”[20] 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].[21]

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.’”[22]

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.”[23] 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.[24] 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.[25]

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”[26] 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.[27] 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[28]

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.[29] 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.[30] 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.[31]

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.”[32] 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.”[33] 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.[34]

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,[35] nonetheless expressed his belief that if there is such a right recognized by the Constitution,[36] 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.[37] 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.[38]

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.”[39] 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.”[40] 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.”[41] 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.”[42]

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[43] 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. . . .”[44] 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.”[45] 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.”[46] 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.”[47] 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.[48] 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.[49]

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.”[50]

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’”[51] 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.”[52] 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.”[53] 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.”[54] “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.”[55] 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.[56]

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.


*Previously published in Divorce Litigation, a monthly published by the National Legal Research Group in July, 2000. (c)2000-2009 Ronald W. Nelson