Grandparent Rights

Almost fifteen years ago, these authors examined the nascent trend of expanding visitation rights of nonparents, in their article “Stepparents, Grandparents, Lovers and Friends.” (Los Angeled County Bar Association Family Law Section News and Rreview Vol 7, No. 2) At that time, relatives and others who had some sort of relationship with a child were increasingly able to obtain court-ordered visitation with the child, over the objections of the parents.

Recently, in Troxel v. Granville (June 6, 2000) 2000 Daily Journal D.A.R. 5831, the United States Supreme Court made a rare incursion into the realm of visitation rights, a matter which the Court has traditionally left to the states. The Troxel decision, which appears to limit the availability of nonparental visitation, offers family law practitioners an analysis of the role of federal substantive due process and Constitutional rights on child custody litigation and the statutes governing such litigation.

The plurality opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist, Justice Ginsburg and Justice Breyer, addresses grandparent visitation rights and the inadequacies of the Washington State statute under consideration.

Each of the other five Justices wrote a separate opinion, Justices Souter and Thomas concurring and Justices Stevens, Scalia and Kennedy dissenting. As will be discussed below, while the plurality opinion focused on the rights of parents as compared with nonparents, only Justices Stevens and Kennedy addressed the rights of the persons on whom visitation orders have perhaps the greatest impact — the children.

At the trial level, Troxel involved request of the paternal grandparents for certain specified visitation with the two children of Tommie Granville and Brad Troxel, Isabelle and Natalie. After Tommie’s relationship with Brad ended in 1991, Brad moved back home with his parents, the Troxels. Between 1991 and 1993, Brad exercised every other weekend visitation with Isabelle and Natalie, frequently at the home of his parents. In 1993 Brad committed suicide.

After the death of their son, the Troxels continued to see the grandchildren on a regular basis, after approximately six months, Granville informed them that she wished to limit their visitation to one short visit a month. Thereafter, the Troxels filed a petition to obtain visitaton rights under Washington Revised Code Section 26.10.160 (3) 1994. This statute 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 children whether or not there has been any change of circumstance.

The Troxels requested visitation every other weekend and two weeks’ vacation in the summer. Granville had offered the Troxels one day a month (not including an overnight) and specific holidays/special occasions.

After a trial, the Superior Court entered a visitation decree ordering visitation for the Troxels one weekend per month, one week during the summer, and four hours on each of the Troxels’ birthdays.

On Granville’s appeal, the Appellate Court reversed, holding that the Troxels did not have standing to seek visitation as no custody action was pending. The Troxels then petitioned the Washington Supreme Court for review.

While the Washington Supreme Court disagreed with the Appellate Court’s procedural reasoning, it affirmed the Court of Appelas’ ultimate conclusion. The state Supreme Court based its ruling on the Federal Constitution, holding that the statute unconstitutionally infringes on the fundamental right of parents to rear their children. In that Court’s view, the state’s grandparent visitation statute had two fatal defects. First, the Constitution permits a state to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child; this statute requires no threshhold showing of harm. Second, the statute sweeps to broadly, in that it allows “any person” to petition for forced visitation with a child at “any time” with only the requirement that such visitation be in the best interest of the child.

The Troxels appealed the matter to the United States Supreme Court, which affirmed the Washington Supreme Court in a plurality opinion written by Justice Sandra Day O’Connor.

The plurality opinion centers around two concepts which are rarely considered in the day-to-day practice of family law, at least for the California practitioner.

First, the opinion invokes the right of substantive due process, caintained within the Fourteenth Amendment’s Due Process Clause, which “provides heightened protection against government interference with certain fundamental rights and liberty interests.” 2000 Daily Journal D.A.R. at 5833.

The liberty interest at issue in Troxel is the interest of parents in the care, custody and control of their children. The plurality found that, as applied to Granville and her family, the Washington statute unconstitutionally infringes on that fundamental right. 2000 Daily Journal D.A.R. at 5833. Interestingly, in the very next sentence, the Court termed the statute “breathtakingly broad,” prefacing a discussion of why it upheld the State Supreme Court’s holding that the statute was facially invalid.

The Court observed that the language of the statute “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. 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. 2000 Daily Journal D.A.R. at 5833-34.

It was this lack of deference to the parenting decisions of a fit parent that the Supreme Court found repugnant to Constitutional principles. Nowhere, the Court noted, was there any allegation, let alone a finding, that Granville was an unfit parent. As the Court wrote, “that aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children …” 2000 Daily Journal D.A.R. at 5834. The plurality opinion indicates that any state that does not give special weight to a parent’s decision and substitutes the state’s opinion as “better” than the parent’s own decision is inherently void.

The Court pointed to the presumption that fit parents act in the best interests of their children, and held, “[a]ccordingly, 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 prent’s children. 2000 Daily Journal D.A.R. at 5834.

The Court also noted that Granville had not attempted to cut off the Troxels’ contact with the children completely, yet the trial court had given not weight to Granville’s having agreed to some visitation even before the Troxels filed their petition.

In short, the Court observed, “this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interest. 2000 Daily Journal D.A.R. at 5835. Accordingly, the Court held, “the Due Process Clause does not permit a State to infringe on the funamental right of parents to make childrearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally — which places no limits on either the persons who may petition for visitation or the circumstancers in which such a petition may be granted — nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.” 2000 Daily Journal D.A.R. at 3835.

Or, to put it another way, in a disagreement between parents and non-parents over what is in a child’s best interest, the opinion of the parents should ordinarily prevail unless the parent is unfit.

The Court specifically declined to consider 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 precedent to granting such visitation. The Court likewise declined to define the precise scope of parental due process rights in the visitation context. However, the plurality did comment that because the constitutionality of such statutes turns on the specific manner in which the statute is applied, it would be hestiant to hold that any specific nonparental visitation statute violates the Due Process Clause as a per se matter.

Of particular interest to the local practitioner, the Supreme Court opinion appeared to comment with approval on at least a portion of the California grandparent visitation statutes.

The relevant California statutes are found at Family Code §§ 3100-3104. Section 3100(a) provides in part that, “In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.” That statute is somewhat similar to the offending Washington State statute and might, therefore, be subject to Constitutional attack under Troxel, if improperly applied.

Similarly, an award of visitation under Family Code § 3101(a), pertaining to stepparent visitation, might also run afoul of Troxel, since that statute states, “Notwishstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.”

And Family Code § 3102, pertaining to visitation for close relatives of the deceased parent of a minor child, is also dangerously similar to the statute at issue in Troxel. That statute provides in part that such relatives “may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child. It is noteworthy that as to all relatives other than grandparents of the child, the court is required to consider the amount of prior personal contact between relative and child; such consideration is not statutorily required, however, in the case of grandparents.

Had Troxel arisen under California law, the trial court would have applied Family Code § 3102, along with Seciton 3104. The latter statute, a portion of which the Troxel Court favorably commented upon, specifically requires a court to find that “there is a preexisting relationship between the grandparent and grandchild that has engendered a bond such that visitation is in the best interest of the child.” The statute also requires the court to balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

In his dissenting opinon Justice Stevens spoke to just that need to take into consideration the rights of the child who, while not a party to the litigation, is certainly its subject. As Justice Stevens wrote:

The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession. [¶] Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the status applies — the child.” [2000 Daily Journal D.A.R. at 5838]

Justice Stevens places a greater emphasis on the child’s needs than is evident in the plurality opinion. As he wrote further on in his dissenting opinion:

A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence or some embodiment of family. [2000 Daily Journal D.A.R. at 5839]

In his dissent, Justice Kennedy also commented on the child’s rights, albeit from a slightly different perspective:

Cases are sure to arise — perhaps a substantial number of cases — in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.

Justice Kennedy’s focus was on the rights of the child which accrue from having formed a bond with a nonparent. His discussion refers to, without specific mention, the concept of the psychological parent, a concept with a long and controversial history in California case law. See, for example, Guardianship of Phillip B. II (1983) 139 Cal.App.3d 407, which held that under its fact, an award of custody to the natural parents would be harmful in light of the psychological reltaionship between the child and the non-biological “parents.” See also In re Marriage of Halpern (1982) 133 Cal.App.3d, in which the non-biological “father,” was married to the mother and alleged he and the child had developed a parent-child relationship and therefore that he stood in loco parentis. Although the “father’s” petition was ultimately denied, Halpern contains an excellent discussion of what factors go into creation of the psychological parent relationship.

The California statutes, at Family Code § 3104, acknowledge that the rights of the third party (in this case, the grandparent) do not exist in a vacuum, but must be exmined in light of the entire family system. Not only does Section 3104(a) require consideration of the bond between grandparent and child, and require balancing the rights of the child against those of the parent, but Sections 3104(e) and (f) create a rebuttable presumption against grandparent visitation in certain cases. In particular, Section 3104(e) provides:

There is a rebuttable presumption that visitation of a grandparent is not in the best interests of the minor child if the natural or adoptive parents agree that the grandparents should not be granted visitation rights.

This same provision, almost verbatim, is also found in Family Code § 3103(d), which applies in dissolution, nullity, paternity, and other custody proceedings between parents. Thus, the California statute is in compliance with Troxel in giving significant weight to the parents’ opinion as to the appropriateness of grandparent visitation.

Indeed, California’s entire statutory scheme of awarding custody and visitation accords the parents’ opinions more weight than that of any third party. Family Code § 3041 requires that, before a court awards custody to a person or persons other than a parent without the consent of the parents, “the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interests of the child.” [Emphasis added]

The California statutes also provide for significant procedural due process protections for birth parents who are not parties to the nonparental visitation proceedings.

Thus, the California statutes do not appear to be as “breathtakingly overbroad” as the Washington statute. Nevertheless, as applied in any case, even our statute may deny a parent or parents the substantive due process rights reinforced by the Troxel opinion.

In a decision which, as Justice Souter pointed out in his concurring opinion, went far beyond what was necessary to affirm the decision of the Washington Supreme Court, the United States Supreme Court has clarified that fit parents are the arbiters of what is ultimately in the best interests of their children. It is left to the parents to decide with whom, including with which close relations, the children may establish or continue a bond.

What impact this affirmation of the rights of parents to raise their children will have on nonparental visitation cases has yet to be seen, but it is likely that in months and years to come, the visitation requests of nonparents will be granted less frequently and less extensively than in the past.

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