Spotlight On: Troxel V. Granville, 530 U.S. ____; 120 S. Ct. 2054(2000).
All In The Family?

by Jennifer J. Henderson1

Today, millions of children live in single parent homes2 and the extended family has become an integral part of the structure and function of the single parent household. Often the custodial parent has legal problems, and prosecutors are constantly faced with aunts, uncles and grandparents appearing in court with juveniles because the biological parents are either in jail, unidentified or have absconded. The extended family members assume responsibility for the welfare of the children, and attempt to assure future court appearances and compliance with court orders. Frequently, once services and a stable living environment are in place, the biological parents re-enter the child's life, assert their parental rights and uproot the stability the extended family and the juvenile justice system have established. These ever-changing dynamics of the family make the Supreme Court's recent decision in Troxel v. Granville, 530 U.S. ___ ; 120 S.Ct 2054; 2000 Lexis 3767; 147 L. Ed. 2d 49; 68 U.S.L.W 4458 (2000) particularly relevant to those who work in the juvenile justice system. Although the Troxel decision centers on the visitation rights of grandparents, the Court makes some very definite assertions about the sanctity of parental rights and who should determine what is in the best interests of the child.

Facts and Proceedings:  Troxel v. Granville

Two children, Isabelle and Natalie, were the product of the relationship of Tommie Granville and Brad Troxel. Both children were born out of wedlock, and the relationship between Granville and Troxel ended in June, 1991. Troxel moved in with his parents, Jennifer and Gary Troxel. The two children regularly visited their father and their grandparents at the Troxel home on weekends. After Brad Troxel died in May 1993, the girls still saw their paternal grandparents regularly. But in October 1993, their mother, Tommie Granville, told the Troxels she "wished to limit their visitation" to one short visit per month." Id., at 2057; In re Troxel, 87 Wash. App. 131, 133; 940 P 2d 698-699 (1997). The Troxels filed a visitation petition in December 1993.

In their petition, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation outright; rather, she asked the Court to limit visitation to one day per month, with no overnight stays. Id., at 2058; In re Troxel, 87 Wash App at 133-134; 940 P. 2d at 699. The lower court's order, entered in 1995 after oral findings, allowed for one weekend per month, one week in the summer, and four hours on both of the grandparents' birthdays. Id.

Ms. Granville appealed the above visitation decree. However, the appellate court remanded the case for "entry of written findings of fact and conclusions of law" before taking up the issues on appeal. In the interim, Ms. Granville married, and her spouse adopted Isabelle and Natalie. Id., at 2058. The lower court affirmed its earlier decision for visitation with the Troxels. Ms. Granville appealed again to the Washington Court of Appeals.

Essentially, Ms. Granville raised two sets of issues to the Washington Court of Appeals. First, Ms. Granville argued the Troxels simply lacked standing to petition the court for visitation. Second, Ms. Granville raised challenges to the evidentiary rulings, to the standard applied to the facts of the case by the lower court, to the adequacy of the conclusions reached by the lower court that supported its decision, and finally to the constitutionality of the statute.  In re Troxel, 87 Wn App 131,132; 940 P 2d 698 (1997).

The Washington Court of Appeals reversed and dismissed the Troxels's visitation petition. Although ruling in Ms. Granville's favor on statutory grounds, the Court of Appeals did not address her constitutional claims. The Court of Appeals ruled "a petition for visitation under [Section] 26.10.160(3) must either be contemporaneous with or preceded by a proceeding for child custody. There was no such proceeding when the Troxels filed their petition. The Troxels did not have standing to bring their petition for visitation." 87 Wn App at 137. With regard to the rest of Ms. Granville's claims, the Court of Appeals did "not reach these questions because of our disposition based on lack of standing." Id., at 138. The grandparents appealed to the Washington Supreme Court.

The Washington Supreme Court spoke to both the statutory and the constitutional issues. The state supreme court overruled the court of appeals, finding that the Troxels did indeed have standing to file a petition for visitation, but Washington Revised Code Section 26.10.160(3) "unconstitutionally infringes on the fundamental right of parents to rear their children." Troxel, 120 S Ct at 2058. The court's reasoning as to Ms. Granville's constitutional claim was twofold. First, the Constitution allows a state to "interfere with the rights of parents to rear their children only to prevent harm or potential harm to a child." The statute in question did not meet that standard as it required no showing of harm. Second, the court found that the language in the statute allowing "any person... at any time" to petition the court for custody, only requiring that the visitation be in the best interest of the child, was simply too broad. "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... and that between parents and judges, the parents should be the one to choose whether to expose their children to certain people or ideas." Id., at 2058-2059; 969 P 2d at 30-31.

The Troxels then appealed to the United States Supreme Court which granted certiorari, 527 U.S. 1069 (1999). The Supreme Court affirmed the judgment of the Washington State Supreme Court. Justices Souter and Thomas concurred, while Justices Stevens, Scalia and Kennedy dissented.

The Opinion

The Court's opinion, written by Justice O'Connor and joined by Chief Justice Rehnquist, and Justices Ginsburg and Breyer, struck down the Washington state visitation statute [3] as being overbroad. The Court, in its June 5, 2000 opinion, held strong to its previously articulated position that parents have a "fundamental right to make decisions concerning the care, custody, and control of their children," acknowledging this right as "perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel, 120 S Ct at 2060. See also Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v. Illinois, 405 U.S. 645, 651 (1972). Hand in hand with this right is the deference a state court must give to a parent and that parent's estimation of the child's best interests. In holding that Wash. Rev. Code Sec 26.10.160 (3) "unconstitutionally infringes on that fundamental parental right," the Court took issue primarily with the statute's language that "effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review...Section 26.10.160(3) contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever." Troxel, 120 S Ct at 2061. 

Parents or Judges: Who should determine the best interests of a child?

Resoundingly, the answer to the above question, as answered by the U.S. Supreme Court in Troxel, is parents. The majority opinion offers an exhaustive review of the relevant case law and procedural history of Troxel. Justice O'Connor anchored the opinion in the Due Process Clause, and held that the Washington statute exceeded due process limits. In the lower court, there was never an allegation that Ms. Granville was an unfit parent so as to call her decisions regarding her daughters into question.4 Justice O'Connor opined that the state would have no reason to interfere with the family and its decisions, "The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests." Troxel, 120 S Ct at 2062. Moreover, the Superior Court took the opposite stance; it placed the burden on Ms. Granville to disprove that visitation with the Troxels would be in her daughters' best interests. Id. The Court found that shifting the burden of proof to Ms. Granville was contrary to the constitutional protections afforded to parents' decisions concerning the care and custody of their children. "In 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." Id.

Justice O'Connor further commented on the state supreme court's ruling by noting Ms. Granville never asked visitation be stopped entirely. She requested, both to the court and to the Troxels prior to the filing of the petition, visitation be limited. Ms. Granville's decision as to visitation with the children and their grandparents was given no weight by the lower court; the lower court rejected her decision and then made its own, a visitation order that was a compromise of each party's position. Id., at 2062-2063. The Superior Court's failure to give this decision by Ms. Granville the appropriate weight and protection, as well as the Superior Court's "presumption in favor of grandparent visitation," as opposed to the presumption that fit parents act in the best interests of their children, rendered the Washington statute unconstitutionally broad as applied to Ms. Granville. Id., at 2063.

Having determined the statute to be overbroad, the Court declined to address the larger question presented: "whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm as a condition precedent to granting visitation." Id., at 2064. While noting that all fifty states have statutes that provide for grandparent visitation, the Court left decisions on the extent and application of those rights to the states. Id., at note 1.  

The Concurrences and Dissents

Justice Thomas took a simpler and more traditional approach to the case. While agreeing with Justice O'Connor that parents have a fundamental right "to direct the upbringing of their children," and noting that the holdings of Due Process Clause cases have not been challenged, Justice Thomas applied strict scrutiny to the Washington statute and found that the state "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." Id., at 2068.

Justice Souter's concurrence is steeped more in rhetoric than in the traditional constitutional analysis of Justice Thomas's concurrence. Justice Souter agrees with Justice Thomas that the decision by the Washington Supreme Court, and in turn by the United States Supreme Court, is ideologically consistent with precedent, specifically "consistent with this Court's prior cases addressing the substantive interests at stake." Id., at 2065. Justice Souter found no error with the finding of overbreadth, saying "the state statute sweeps too broadly and is unconstitutional on its face. Consequently, there is no need to decide whether harm is required or to consider the precise scope of the parent's right or its necessary protections." Id., at 2066. And it is here that Justice Souter would end his analysis.

All the dissenting opinions agree with the majority on at least one point: parents have a fundamental right to make decisions regarding the upbringing of their children. Justice Kennedy writes to remand the case at bar for further proceedings. His dissent lays out what he sees as flawed reasoning by the Washington Supreme Court. Id., at 2075. Moreover, he would leave the application of constitutional standards and the analysis to follow to the state courts. Id., at 2079. Justice Stevens, like Justice Souter, looks to the reasoning and analysis employed by the Washington Supreme Court. And, like Justice Kennedy, Justice Stevens writes strongly about the role the state plays in interpreting the validity of statutes. Moreover, Justice Stevens pointedly discussed the errors made by the Washington Supreme Court in the federal constitutional analysis. Id., at 2069-2071. Justice Scalia, in the shortest of the dissents, concisely notes the shaping of family law belongs to the states, "I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantage 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." Id., at 2075.

Conclusion

From any viewpoint, it is clear the Supreme Court will not erode the protections afforded parents and the decisions parents make for their children. The question remains how far the Court will go, in either direction, to protect the children.

1 Staff Attorney, APRI's Juvenile Justice Prosecution Program.
2 "In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. U.S. Department of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of the United States 27 (1998).…[I]n 1998, approximately 4 million children - or 5.6 percent of all children under age 18 - lived in the household of their grandparents. U.S. Department of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998)." Troxel v. Granville, 530 U.S. ___; 120 S Ct 2054, 2059 (2000).
3 Washington Rev. Code § 26.10.160 (3) provides, "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 of not there has been any change of circumstances."
4 There is a presumption that fit parents act in the best interests of their children.