FAMILY LAW questions such as child custody and visitation are traditionally--and properly--handled by state courts. Today, though, the Supreme Court will hear oral arguments in a case that raises fundamental questions about the boundaries of parents' constitutional right--if they have one--to make decisions about their children's upbringing. The court will decide whether the Washington State Supreme Court acted wrongly when it overturned a state law allowing a court to grant visitation rights with minor children to "any person," "at any time," over the objection of parents, whether or not in the course of a custody battle, if the court found the visitation in the best interests of the child. The matter comes to the Supreme Court because the state court found the statute unconstitutional under federal law, citing Fifth and 14th Amendment rights to liberty and privacy.
This is not really a case about "grandparents' rights," though it has been portrayed that way by such groups as the American Association of Retired Persons. Nor is the issue whether state authorities may intervene to protect a child in the case of abuse, danger or an unfit parent. That authority is well established, as it should be. The issues are also separate from those that arise in custody fights, where it's an open question who has parental authority.
In this case, the Supreme Court must decide whether a state statute is unconstitutional if it allows courts to overrule parents' decisions in the absence of any finding that the parent is unfit or a threat to the child's health or safety. Grandparents Jenifer and Gary Troxel went to court to compel the mother of their two granddaughters to grant overnight, rather than afternoon, visits with the then-toddlers. The children's father, the Troxels' son, had committed suicide, and the mother had remarried; the mother did not oppose visits but argued that overnight visits every other weekend interfered with the new family's cohesion. A judge overruled her.
The idea of a constitutional right to raise one's children as one wishes has some basis in case law, though previous cases have mostly involved religious liberty, which has separate, stronger First Amendment protection. State laws on visitation vary widely, and this is a realm in which some flexibility is desirable. But in cases in which children are not endangered, the state should not be able to overturn parents' decisions simply because it has a different view of what is best for the child. "For the state to delegate to the parents the authority to raise the child as they see fit, except when the state thinks another choice would be better," lawyers for the parents argue, "is to give the parents no authority at all."