Court Limits Visitation Rights of Grandparents

By Edward Walsh

June 6, 2000

The Supreme Court ruled yesterday that a state law allowing court-ordered visitation rights for grandparents and others is unconstitutionally broad and infringes on parents' "fundamental right" to make decisions about their children.

In a 6 to 3 decision, the court ruled that a Washington state judge erred when he granted visitation rights to the grandparents of two young girls instead of heeding the wishes of their mother.

The closely watched case involved one of the most emotion-charged issues that the court has dealt with this term. All 50 states have laws granting grandparents--and in some cases other third parties--visitation rights under varying circumstances. But few are as broad as the Washington law, under which "any person" may petition a court for visitation rights "at any time."

Because of the breadth of the Washington statute, legal experts said yesterday that they did not expect the Supreme Court ruling to have much immediate effect on other state visitation laws.

"The case is definitely a victory for parental rights, but it wasn't a broad-based attack on third-party visitation rights," said David L. Hudson of the First Amendment Center at Vanderbilt University. "It does not sound the death knell of grandparent visitation statutes."

But the experts also said that state legislatures and courts are likely to interpret the decision by giving greater weight to the wishes of parents in contested visitation cases, ultimately making it more difficult for a third party to win visitation rights over the objections of a parent who is deemed fit.

In the court's main opinion, Justice Sandra Day O'Connor wrote: "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 child."

Linda Elrod, the incoming chairman of the American Bar Association's Family Law Section, said the Supreme Court ruling "doesn't strike down third-party visitation statutes. It says that third parties will have a higher burden of proof in seeking visitation rights."

Yesterday's decision generated six separate opinions from the nine justices, producing enough confusion that some lawyers, including Elrod, argued that the Supreme Court ruling did not strike down the Washington state law but pertained only to this particular case.

The law was originally invalidated by the Washington Supreme Court on two grounds--that it was too broad and that the U.S. Constitution allows the state to interfere in the right of a parent to rear a child only to prevent harm or potential harm to the child.

But in yesterday's decision, the Supreme Court did not address the "harm to the child" standard.

"Because we rest our decision on the sweeping breadth of [the Washington law] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court--whether the due process clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition" for granting third-party visitation rights, O'Connor wrote.

The AARP, a senior citizens' lobbying group that filed a brief supporting the Washington state grandparents, said it was grateful that the Supreme Court "has proceeded cautiously in deciding this case."

Mark D. Olson, the lawyer for the grandparents, said it was important that the high court did not adopt the "harm requirement" cited by the Washington Supreme Court but left intact the "best interests of the child standard" that he said is part of the visitation law in 47 states.

The case, Troxel v. Granville, attracted widespread attention in part because of changing family patterns. There are an estimated 60 million grandparents in the United States. According to U.S. Census figures, the number of children who live in a home with a grandparent swelled from 2.2 million in 1970 to 3.9 million in 1998. In the District, 19 percent of children live in a home with a grandparent, the highest rate in the country, according to the Census Bureau.

The case reflected the often fractured nature of modern American family life. It was brought by Jenifer and Gary Troxel, whose son, Brad, committed suicide in 1993. Brad Troxel never married Tommie Granville, the mother of their two daughters--Natalie, 10 and Isabelle, 8--but they lived together off and on from 1989 to 1991.

Granville later married Kelly Wynn, who has since adopted the two girls.

Granville did not oppose visitation by the grandparents but wanted fewer visits than they sought. A Washington state Superior Court judge who heard the case imposed his own compromise, ordering one weekend visit per month, one week in the summer and time on both of the grandparents' birthdays.

In the court's main opinion, O'Connor, who was joined by Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer, said the Washington law effectively allows any third party to challenge a parent's visitation decision in court.

"Once the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference," O'Connor wrote.

Calling parental rights "perhaps the oldest of the fundamental liberty interests recognized by this court," the four-justice plurality declared that "it cannot now be doubted that the due process clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children."

The justices added that the Constitution "does not permit a state to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a 'better' decision could be made."

Justices Clarence Thomas and David H. Souter filed separate concurring opinions, while Justices John Paul Stevens, Antonin Scalia and Anthony M. Kennedy each dissented separately. In his dissent, Stevens wrote that a parent's right to make decisions about a child has never been regarded as absolute.

"The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the states from protecting children against arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child," Stevens wrote.

According to Olson, the grandparents last saw both girls in January 1999 and saw Isabelle in May 1999. He said they were now ready to accept Granville's previous offer of one afternoon visit a month. But Howard Goodfriend, one of Granville's attorneys, said the mother had not yet decided whether to grant the grandparents any visits.

He said Granville continued to allow occasional visits until the Troxels decided to pursue the case in the Supreme Court. "That was the last straw," Goodfriend said.

In other decisions announced yesterday, the Supreme Court:

* Set aside the death sentence of a convicted Texas killer after prosecutors acknowledged that the sentence was based in part on the fact that the man is Hispanic. During a sentencing hearing, a psychologist who testified for the prosecution said that the fact that the man was Hispanic was a factor in predicting his "future dangerousness."

The high court ordered a new sentencing hearing for the man, Victor Hugo Saldano.

* Ruled 5 to 4 that people who go to federal court to appeal the denial of Social Security disability benefits can raise new issues that were not considered in earlier administrative hearings.

* Rejected, without comment, an appeal by the owners of the Three Mile Island nuclear power plant that they be shielded from lawsuits by nearly 2,000 people stemming from the nation's worst nuclear accident in 1979. The owners argued that all lawsuits against them should be thrown out because a trial judge ruled against 10 people who were designated as a "test" case in the dispute.

Visitation Laws

All 50 states allow grandparents to petition for visitation rights for their grandchildren under some circumstances.

When petition is permitted

Regardless of parents' marital status

Alabama

Alaska

Connecticut

Florida

Hawaii

Idaho

Iowa

Kansas

Kentucky

Maine

Maryland

Minnesota

Mississippi

Missouri

Montana

New Jersey

New Mexico

New York

North Dakota

Oklahoma

Oregon (a)

Pennsylvania (b)

Rhode Island (a)

South Dakota

Texas (b)

Utah (a)

Washington

West Virginia

Wisconsin

Wyoming

Parents are deceased, divorced or unmarried

Arizona

Arkansas

California

Colorado

Delaware

Georgia

Illinois

Indiana

Louisiana

Massachusetts

Michigan

Nebraska

Nevada

New Hampshire

North Carolina

Ohio

South Carolina

Tennessee

Vermont

Virginia

After stepparent adoption