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Justices Limit Visiting Rights of Grandparents in Divided Case

By Linda Greenhouse (NY Times, June 6,2000)

WASHINGTON, June 5 -- Declaring that parents have a "fundamental right to make decisions concerning the care, custody and control" of their children, the Supreme Court ruled today that a Washington State law went too far in permitting a judge to order visiting rights for grandparents over a mother's objection. With a 6-to-3 vote but lacking a single rationale that could command a majority, the court stepped cautiously and appeared intent on avoiding a one-size-fits-all constitutional prescription for a world of rapidly changing family dynamics. As Justice Sandra Day O'Connor acknowledged in her opinion for a plurality of four justices: "The demographic changes of the past century make it difficult to speak of an average American family."

Consequently, the court stopped short of declaring unconstitutional a Washington law, one of the broadest regarding the rights of grandparents in terms of permitting judicial intervention in family affairs. Nor did the justices offer much guidance for judging the constitutionality of similar laws in the 49 other states.

Beginning with New York in 1966, states adopted laws on visiting rights that reflected the rising divorce rate and the impact of custody battles that caused grandparents to lose contact with their grandchildren. While most state laws make parental death or divorce a precondition for grandparents to seek visiting rights, the Washington law required no such triggering event.

The four-justice plurality found only that the law had been unconstitutionally applied to order visits by the grandparents in the case in question, a dispute between Tommie Granville, the mother of two daughters, and Jenifer and Gary Troxel, the parents of the girls' father, who had killed himself.

Ms. Granville was willing to allow some visits, but not the two weekends a month the Troxels had requested when they invoked the state law and went to court. They won a modified order that was invalidated on appeal.

A fifth justice, David H. Souter, voted to strike down the Washington law in all possible applications -- as had the Washington Supreme Court in a 1998 ruling that was before the court today -- and a sixth justice, Clarence Thomas, suggested in a cryptic, two-paragraph opinion that he would do the same. Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined Justice O'Connor's opinion.

The tentative, splintered nature of the decision, with a total of six separate opinions among nine justices, all but guaranteed that challenges to other state laws would reach the Supreme Court.

Nonetheless, the court did set a constitutional bottom line that any statute would have to meet, with a balance struck clearly in favor of parental decision making while leaving the door open to upholding more carefully tailored statutes.

The decision of a fit parent to deny or limit access to a child is entitled to "at least some special weight" or "presumption of validity," Justice O'Connor said, adding that it was these characteristics that the Washington law failed to apply in this case, Troxel v. Granville, No. 99-138.

"So long as a parent adequately cares for his or her children (i.e., is fit)," Justice O'Connor wrote, "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."

The Washington law, passed in 1994, provided that any person may petition the court for visiting rights at any time, which a court could order when visits "may serve the best interest of the child."

This was a "breathtakingly broad" invitation, Justice O'Connor said, for state judges simply to substitute their judgment for that of the parents. But, she said, "the Due Process Clause 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."

In striking down the law, the Washington Supreme Court had gone considerably further, ruling not only that the parental decisions were entitled to some measure of judicial deference, but that in the absence of an unfit parent or a showing of harm to the children, parents had a constitutional right to exercise an effective veto over any request for a visit.

In other words, the state court said, a "best interests of the child" standard was never constitutionally adequate.

Justice O'Connor said today that it was unnecessary to resolve the question of whether, in order to be constitutional, a statute had to require a showing of parental unfitness or harm to the children.

"We do not, and need not, define today the precise scope of the parental due process right in the visitation context," she said, adding: "Because much state court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter."

The court's hesitation reflected not only the novelty and emotional weight of the issue, but also the fact that in the American legal system, family law has been the province of state legislatures and state courts, with only rare occasions for Supreme Court intervention on such questions as the right of parents to choose private rather than public schools, as the court held in a case from the 1920's.

In a dissenting opinion today, Justice Anthony M. Kennedy said the court should have confronted, rather than avoided, the question of whether a law providing for visiting rights in the best interests of the child could ever be constitutional. In Justice Kennedy's view, such laws could be constitutional if directed to people who had acted "in a caregiving role over a significant period of time," whether a grandparent or a "de facto parent" of another kind.

Justice John Paul Stevens also filed a dissenting opinion that called attention to "the almost infinite variety of family relationships that pervade our ever-changing society" and warned against adopting a rule that would allow parents to exercise "arbitrary" power over their children's contact with other adults. Judge Stevens said the court should "reject any suggestion that when it comes to parental rights, children are so much chattel."

Patricia Logue, a lawyer with the Lambda Legal Defense and Education Fund, which filed a brief on behalf of the mother, said it was encouraging that justices on both sides of the case appeared eager to maintain a level of constitutional flexibility in recognizing that "there are many ways to raise children" and that significant relationships between children and people who are not their biological parents can be deserving of protection.

"The court is letting this area of law evolve to meet the families that are out there," Ms. Logue said.

Despite the variety of views the justices expressed today, the differences among eight of them appeared nuanced rather than fundamental. The lone exception was Justice Antonin Scalia, who filed a separate dissenting opinion rejecting the application of the Due Process Clause and of what he called "judicial vindication of 'parental rights' under a Constitution that does not even mention them." He warned that the court was "ushering in a new regime of judicially prescribed, and federally prescribed, family law."

One undoubtedly unexpected result of the case, which was argued in January, could be to strengthen the federal government's hand in its support of Juan Miguel González in his effort to take his son, Elián, home to Cuba over the objection of relatives in Miami.

"The bottom line is that there is now no question that a parent decides for a child," Pamela S. Falk, a professor of international law at the City University of New York, said in an interview.