What's Become of Grandma, Grandpa, and the Troxels?(fn1) an Update on Grandparent Visitation Rights in Kansas
| Jurisdiction | Kansas,United States |
| Citation | Vol. 75 No. 7 Pg. 34-46 |
| Pages | 34-46 |
| Publication year | 2006 |
75 J. Kan. Bar Assn. 7, 34-46 (2006). What's Become of Grandma, Grandpa, and the Troxels?(fn1) An Update on Grandparent Visitation Rights in Kansas
75 J. Kan. Bar Assn. 7, 34-46 (2006)
I. Introduction
On June 5, 2000, the Supreme Court of the United States decided Troxel v. Granville, a case from the state of Washington involving paternal grandparents' desire to obtain court-ordered visitation with their granddaughters pursuant to a third-party visitation statute. In a 6-3 decision, the Court held that as applied to facts of the case the Washington statute was unconstitutional.(fn2) Interestingly, however, there was no majority opinion in Troxel. Instead, Justice Sandra Day O'Connor wrote the plurality opinion in which Chief Justice William Rehnquist and Justices Ruth Bader Ginsburg and Stepehen Breyer joined. Justices David Souter and Clarence Thomas each wrote concurring opinions. Three separate dissenting opinions were written by Justices John Paul Stevens, Antonin Scalia, and Anthony Kennedy.(fn3) The various Troxel opinions issued by six of the justices demonstrate that members of the Court held significantly differing views about the constitutional dimensions of grandparent visitation rights.
Since Troxel was decided, many states have grappled with whether their own statutes are constitutionally sound.(fn4) Most state courts, including Kansas, have relied on the Troxel plurality opinion as their primary guidance in examining the constitutional validity of their grandparent or third-party visitation statutes.(fn5) In some states, legislatures either have abolished their third-party visitation statutes or amended them in an attempt to comply with Troxel.(fn6)
In the six years since the Court decided Troxel, the Kansas appellate courts have reviewed a number of cases involving grandparent visitation rights. This article reviews those decisions. A careful analysis of the Troxel plurality opinion and the Kansas appellate grandparent visitation decisions reveal that courts must consider a combination of factors in determining whether grandparent visitation is appropriate in any given case. No bright-line tests exist for these difficult cases.
II. The Troxel case
Before delving into the latest Kansas cases concerning grandparent visitation rights, a brief review of Troxel is helpful to understand how it has influenced case law in this area. The Troxel decision itself was dependent on the specific facts of the case, which involved the mother, Tommie Granville (Granville), and the paternal grandparents, Jenifer and Gary Troxel (the Troxels).(fn7) Granville and Brad Troxel (Brad), the Troxels' son, were involved in a romantic relationship.(fn8) The two never married, but two daughters, Isabelle and Natalie, were born of the relationship. After Granville and Brad ended their relationship in 1991, Brad lived with his parents, the Troxels. Brad had weekend visitation with his daughters, and the visits often took place at his parents' home.(fn9) In 1993, Brad committed suicide. The Troxels continued to see the girls regularly until October 1993, when Granville informed them that they would be allowed one visit per month with her daughters.(fn10)
The Troxels, dissatisfied with Granville's limitation on visitation and wanting more time with their granddaughters, filed a lawsuit in Washington state court.
The Washington statute under which the Troxels sought visitation provided that "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 or not there has been any change of circumstances."(fn11)
Granville, though not entirely opposed to grandparent visitation, asked the trial court to limit the Troxels' visitation to one day of visitation per month with no overnight stay.(fn12) Ultimately, the trial court issued an order giving the Troxels visitation "one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents' birthdays."(fn13) Granville appealed the trial court order, and after appeals in state appellate courts, the U.S. Supreme Court of granted certiorari to consider the constitutionality of the Washington statute.(fn14)
Justice O'Connor, writing a plurality opinion for the Court, narrowly defined the issue in Troxel as "whether § 26.10.160(3), as applied to Tommie Granville and her family, violates the Federal Constitution."(fn15) In doing so, the plurality declined to consider the primary question of "whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to a child as a condition precedent to granting visitation."(fn16)
The plurality opinion was organized into two parts. First, Justice O'Connor identified and addressed three constitutional criticisms of the Washington third party visitation statute, focusing specifically on the precise language and construction of the statute. Her first criticism of the Washington statute was that it was "breathtakingly broad" because it failed to restrict the types of person who can petition the court for visitation by allowing "any person" standing to seek court-ordered visitation rights.(fn17) Her second problem with the statute was that it failed to limit the circumstances in which a petition for third party visitation may be granted by the trial court.(fn18) Lastly, the statute did not include a provision that attributed any special weight to the parental decision concerning visitation.(fn19)
The other part of Justice O'Connor's analysis in the plurality opinion centered around the facts of the case. Specifically, Justice O'Connor reviewed the state court's application of the Washington third-party visitation statute to Tommie Granville, which yielded more explicit criticism from her. For instance, she emphasized that there was no allegation by the Troxels that Tommie Granville was an unfit parent.(fn20) Justice O'Connor stressed that as long as a parent is fit, there "will normally be no reason for the [s]tate to inject itself into the private realm of the family" to question a parent's decision-making ability.(fn21) Furthermore, the state court failed to attribute any weight to Granville's decision concerning grandparent visitation. Rather, the state court placed on Granville, a fit parent, the burden of disproving that visitation with the Troxels would be in the best interest of her daughters.(fn22)
Justice O'Connor also acknowledged Granville's willingness to allow some "meaningful" visitation between her daughters and the Troxels, noting that the legal dispute between Granville and the Troxels was essentially a "mere disagreement" over the amount of time the children were to spend with their grandparents.(fn23) Finally, Justice O'Connor stated that the trial court's decision to award visitation was not "founded on any special factors that might justify the state's interference with Granville's fundamental right to make decisions concerning the rearing of her two daughters."(fn24)
III. Kansas Statutes
While Justice O'Connor's Troxel plurality opinion characterized the Washington third-party visitation statute as extremely broad, the language of the Kansas statutes, by comparison, is more restrictive because of explicit limitations on the circumstances in which court-ordered visitation may be awarded to grandparents.(fn25) Two statutes, K.S.A. 38-129(a) and 60-1616(b), have been the subject of litigation in Kansas since Troxel was decided. K.S.A. 38-129(a), found in the "Minors" section of the code, provides in relevant part: "[t]he district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority . . . upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established."(fn26)
The other grandparent visitation statute, K.S.A. 60-1616(b), located in the divorce statute, allows grandparents and stepparents to seek court-ordered visitation with a child.(fn27) Presumably grandparents may request court-ordered visitation in a divorce action either when the parents of the child are divorcing or have been divorced.(fn28) A 2006 amendment to K.S.A. 60-1616 (b), House Bill No. 2670, now requires that the grandparent prove the two-prong test of substantial relationship and best interest found in K.S.A. 38-129(a). Additionally, House Bill No. 2670 adds language to both K.S.A. 38-129 and K.S.A. 60-1616(b) that permits the grandparent seeking court-ordered visitation to intervene in "pending litigation" involving child custody or visitation. A third statute under which a grandparent or other third party may seek court-ordered visitation is found in the Child in Need of Care statute, K.S.A. 38-1563(f), but to date, this statute has not been the subject of an appellate decision in Kansas.(fn29)
IV. Kansas Cases
The Constitutionality of K.S.A. 38-129(a) and 60-1616(b)
In the first Kansas grandparent visitation case decided post-Troxel, S.R.S. v. Paillet,(fn30) a mother, Danielle S., challenged the constitutionality of K.S.A. 38-129(a), claiming the statute violated her fundamental parental right to direct the upbringing of her daughter, S.D.S.(fn31) The facts of Paillet were strikingly similar to the Troxel case in that Danielle S. and Joshua Paillet were involved in a romantic relationship and had a child, but never married.(fn32) The Kansas Department of Social and Rehabilitation Services (SRS) filed a paternity petition against Joshua, the...
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