Before their son died, Jenifer and Gary Troxel doted on their young granddaughters. They would do jigsaw puzzles together, wade in a creek near their rural Washington state home and treat the girls to cheese macaroni and drinks topped with whipped cream at a local restaurant.
But after Brad Troxel committed suicide in 1993, those ties frayed as the Troxels and the girls' mother, Tommie Granville, quarreled over the amount of time they wanted to spend with the girls. That precipitated a contemporary twist on grandparent-grandchild relations: The Troxels sued for visitation rights.
"We don't want them to forget that their daddy loved them," Jenifer Troxel said of the visitation battle, now entering its seventh year. "We miss watching them grow up."
In an era of splintered families, their case, to be heard at the Supreme Court on Wednesday, raises difficult and emotional questions about the rights of parents, the role of relatives and--fundamentally--how the law should respond to evolving notions of "family."
With a growing number of children being cared for by extended families and surrogate kin, the dispute has implications for a tangled array of modern relationships. Courts across the country have been asked to rule on visitation battles involving not only grandparents, but also other blood relatives, former boyfriends of a child's mother, former foster parents, the biological mother of a child after adoption and gay partners of a child's biological parent.
At the Supreme Court, advocates for the nation's 60 million grandparents have weighed in on the Troxels' side, citing the powerful emotional bonds between grandchildren and grandparents. On Granville's side, religious organizations seeking to preserve traditional notions of family have found themselves allied with civil libertarians who argue that the government has no right to dictate to parents who can see their children.
Gay rights advocates have charted a middle course based on their interest in ensuring that children raised by lesbians and gay men are not treated differently from other children. They want the court to reinforce the "vital, autonomous nature of parental decisions"--protecting gay parents against interference from disapproving judges--but still leave the door open to visiting rights for those who have had an "unusually significant relationship" with a child, a standard that could help gay men and women who want to maintain contact with a former partner's child.
The court's eventual ruling may also have particular resonance in the District, which the Census Bureau says has the highest nationwide rate of children living in a grandparent's home, 19 percent.
The dispute in Troxel v. Granville involves a Washington state law, similar to child visitation statutes in all states, that allows grandparents or any third party to seek time with a child if a court determines it would be in the child's best interest.
The Troxels won visitation under the law, although they didn't get as much as they wanted. They had sought an entire weekend visit every other week, but the judge allowed a once-a-month visit from 4:30 p.m. Saturday until 6 p.m. Sunday. Objecting to the order involving her girls, Granville appealed, and on Christmas Eve in 1998 the Washington Supreme Court struck down the law for infringing on parents' constitutional privacy interests.
The court ruled that parents have a right to rear their children without state interference and said visitation could be imposed only if necessary to prevent harm to the child.
"Like any family, we're a special family and we have a lot to offer these kids," Jenifer Troxel said. She said the absence of the granddaughters, Natalie and Isabelle, has been hard on the whole Troxel clan, which includes the girls' eight young cousins who used to spend time with them.
"It's fun to have the whole family together, and we miss that," Troxel said. "We miss seeing their musical accomplishments. Natalie takes piano. They've both taken dance lessons." She said she and husband Gary, who was the lead-singer for the popular 1960s rock group The Fleetwoods, particularly long to be part of the girls' musical efforts.
But the children's mother, who has since married Kelly Wynn, said it should be up to the mother or father--not a judge--to say what interaction with grandparents is allowed. "Grandparents' support is always welcome, but court-ordered visitation is not supportive," Tommie Granville Wynn wrote in a letter recently posted on a parents' rights Web site.
Tommie Wynn's situation presents a snapshot of modern America--"a blended family," she and her husband call it on the Web site. She already had three children from a previous marriage when she became involved with Brad Troxel and had two children with him, Natalie and Isabelle, now 10 and 8. The two never married, but they lived together on and off from 1989 to 1991. After Troxel's death, Wynn married Kelly Wynn, a local business owner with two children of his own. Then the Wynns had an eighth child together.
Tommie Wynn explains in filings to the Supreme Court that she never tried to cut off all access to her daughters but was simply trying to carve out enough time for her new family to be together. She says she was concerned about the Troxel family's increasing "spur-of-the-moment" requests to see her daughters and said she had wanted to keep the contact to one weekend day a month.
Her lawyers say the case is about "the fundamental right of . . . parents to family autonomy, the oldest and one of the most sacred of our personal liberties." They urge the justices to adopt a standard that bars court-ordered visitation unless it can be shown that the child is being harmed in some way. They also attack the Washington law for its breadth; it goes further than many other state statutes, allowing "any person," not just relatives, to go to court to try to obtain visiting rights "at any time."
The Troxels' lawyers counter that the Washington court put too high a premium on parents' rights. They urge the court to look at "all of the competing familial interests involved. The parent-child relationship is not the only constitutionally significant interest at stake in cases such as this. The relationship between a grandchild and grandparent is also an important part of family life."
Disputes over such inherently personal bonds do not often come to the Supreme Court, but the justices will begin with some touchstones. In the 1920s, the court recognized a liberty interest in the Constitution for parents to "establish a home and bring up children." Parents' rights are not absolute, and the court has said it must carefully balance them against the government's asserted interest--for example, in seeing that children are educated or in enforcing child labor laws.
The court has not confined its protections to the nuclear family. In 1977, when it struck down an East Cleveland, Ohio, housing ordinance that made it illegal for a grandmother to live with her son and two grandsons, the court said, "Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household . . . has roots equally venerable and equally deserving of constitutional recognition."
The social crosscurrents of the new dispute are revealed by the various groups supporting each side. Backing the mother are such unlikely allies as the American Civil Liberties Union and the Christian Legal Society, among others. Although they take different tacks, both emphasize the autonomy of the family. In the same vein, the Lambda Legal Defense and Education Fund has submitted a brief urging the court to make sure it doesn't rule in a way that would intrude on gay parents who are often challenged by third parties who think they know what's best for the children.
Siding with the Troxels are the powerful senior-citizen group AARP, which emphasizes how involved grandparents are in child-rearing today, and 12 states and numerous other governmental groups that insist the government needs to be able to order third-party visitation to protect the welfare of children.
Beyond such organized interest, Granville's case has galvanized individual parents and grandparents in difficult situations nationwide. Connie and Michael Monschein of Indianapolis, who are locked in a visitation battle, have been following the case through the Internet.
"A lot of times people think that when people become grandparents they become saints," Connie Monschein said. "There are just as many manipulative and dysfunctional grandparents as there are parents."
The bitterness that arises in families, particularly in the wake of divorce and death, is precisely why states should get involved, said Gerard Wallace of the Grandparent Caregiver Law Center at Hunter College in New York. Wallace mentioned the "hatred" he has seen in families and said that unless the Washington law is upheld, "the already-torn fabric of family unity will be ripped to shreds."
As part of its support for the Troxels, the AARP released a report last week that highlighted the strong bonds between grandparents and grandchildren. The AARP found that 11 percent of grandparents over age 50 are caregivers; 8 percent say that they provide day care on a regular basis; and 3 percent say they are raising a grandchild.
Overall, the group said, 1.5 million American children are raised primarily by their grandparents.
The Troxels' lawyers say that since the Washington Supreme Court's decision a little more than a year ago, the grandparents have seen Isabelle twice and Natalie once.
The case could affect not only the future bonds between children and the extended relatives they might live with for a time, but the more casual relations that are the stuff of grandparenting: "They'd like to have me paint their faces," Jenifer Troxel said wistfully. "They found it fun. In turn, I'd let them paint my face. . . . But not Grandpa. He didn't like that much."
Staff researcher Lynn Davis contributed to this report.
Living With Granny
Number of children who reside in homes with a grandparent,
SOURCE: U.S. Census Bureau