Grandparents' visitation rights: the constitutionality of New York's Domestic Relations Law section 72 after Troxel v. Granville.

• Author: Ginsberg, Robyn L.

1. INTRODUCTION

   Today, grandparents are increasingly involved in all areas of their grandchildren's lives. (1) However, unlike parents, grandparents have no common law right to visit their grandchildren. In response to this problem, over the last thirty years each state has enacted some form of statute enabling a grandparent to petition the courts for mandated visitation with their grandchildren. (2) At first glance, it would seem preposterous to deny grandchildren the benefit of a relationship with their grandparents. However, only upon further investigation of the competing interests involved--including those of the parents, the grandparents, the states, and the children--can one fully appreciate the difficult task courts face when asked to compel scheduled visitations against the wishes of one or more of the parties involved.

   In June 2000, the Supreme Court decided Troxel v. Granville, (3) and declared a Washington State non-parental visitation statute unconstitutional as applied in that case. (4) The Court found that the lower court had improperly failed to lend weight to decisions that had been made by a fit custodial parent. (5) In the final analysis, the Court's plurality decision in Troxel was extremely narrow and left many questions unanswered. In contrast, the New York Court of Appeals has not yet analyzed the constitutionality of New York's grandparent visitation statute as it applies to a fit parent.

   This article will analyze New York State's grandparent visitation statute, Domestic Relations Law (DRL) section 72, (6) in light of the Supreme Court's decision in Troxel. Part II will discuss the procedural history of Troxel and its ultimate disposition by the Supreme Court. (7) Part III will examine several New York cases--some decided before and some after the enactment of New York's grandparent visitation statute and its subsequent amendments. (8) Part IV will discuss New York cases decided since the Supreme Court's decision. (9) Finally, Part V will explore the future of DRL section 72 in light of these recent cases and will address precisely those questions that remain unanswered after Troxel. (10)

2. TROXEL V. GRANVILLE

   1. Procedural History

      On June 5, 2000, the Supreme Court handed down its decision in Troxel v. Granville. At issue was a Washington State nonparental visitation statute which provided that "[a]ny person may petition the court for visitation rights at any time ... [and t]he 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." (11)

      The petitioners in the case were paternal grandparents, Jenifer and Gary Troxel. (12) Their son, Brad Troxel, and respondent, Tommie Granville, were involved in a relationship that ended in June 1991. (13) Although they never married, the couple had two children. (14) After Brad and Tommie separated, the children lived with their mother and regularly visited with their father on the weekends. (15) In May 1993, Brad Troxel committed suicide, after which the children continued to visit with the petitioners. (16)

      In October 1993, Tommie Granville informed the Troxels that she wished to limit their visitation with her daughters "to one short visit per month." (17) Subsequently, in December 1993, the Troxels petitioned for the right to visit their grandchildren on a regular basis. (18) The trial court granted the Troxels' visitation request for "one weekend per month, one week in the summer, and four hours on the birthday of each of the Troxels." (19)

      On appeal, Granville challenged the Troxels' standing as well as the constitutionality of the visitation statute. (20) The appellate court held that the Troxels lacked standing, resulting in the court reversing the visitation decree and dismissing the visitation petition. (21) In reaching its result, the appellate court looked to a "parallel" state visitation statute (22) that had been amended to provide that third parties could only petition for visitation once a custody proceeding had been commenced by one of the parents. (23) The court decided that when the Washington State legislature amended this statute, it had unintentionally "overlooked" the nonparental statute, but, nevertheless had intended "that a custody proceeding be in effect before third parties could petition for visitation" under either statute. (24)

      Reviewing this decision, the Washington Supreme Court, held that the Troxels did have standing and that the appellate court had improperly ignored the plain language of the statute, which clearly permitted any person to petition the court for visitation. (25) As to the constitutional challenge, however, the court looked to a long line of Supreme Court cases seemingly mandating a finding that the statute, on its face, was an unconstitutional infringement of the parents' right to make decisions regarding the care and custody of their children. (26)

      In overruling the statute, the court identified three major problems. First, the statute failed to require a threshold determination of "harm to the child." (27) In other words, parental autonomy is regarded as a fundamental liberty interest, which the state may intrude upon only when it has a compelling interest, such as preventing substantial harm to a child. (28) The court found that Washington State's visitation statute impermissibly permitted the state to interfere with the fundamental rights of parents without having to establish any compelling interest. (29)

      Second, the statute failed to take into account whether the third parties seeking compelled visitation had a "substantial relationship with the child." (30) Third, the statute failed to mandate that a court consider what the parents' reasons were for refusing such visitation. (31)

   2. The United States Supreme Court Decision

      The Supreme Court granted certiorari (32) and, in a plurality opinion written by Justice O'Connor, the Court affirmed the Washington Supreme Court's decision to invalidate Washington's non-parental visitation statute. (33) The wording of the opinion, however, indicates that the statute was only invalid "as applied [to Tommie Granville]." (34)

      Of the various aspects of the plurality opinion, the most disappointing is its failure to clearly articulate an applicable standard. (35) Although the Washington Supreme Court had declared the statute to "impermissibly interfere with a parent's fundamental interest in the `care, custody and companionship of the child,'" (36) the Supreme Court did not scrutinize the statute itself, but rather the trial judge's application of the statute and failure to defer to a fit custodial parent's decisions. (37) The Court refused outright to consider the constitutional question that was decided by the Washington Supreme Court: "[W]hether 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 visitation." (38)

      The Court criticized Washington's non-parental visitation statute for being "breathtakingly broad" (39) because, according to the language, any person could challenge any decision a parent makes regarding visitation of their children at any time. (40) In effect, the statute authorized the state to impermissibly infringe on parents' fundamental due process right to raise their children and make decisions concerning them. (41) This right, the Court noted, "is perhaps the oldest of the fundamental liberty interests recognized by this Court" (42) and cannot be infringed upon by a state simply because the state disagrees with the manner in which that liberty is exercised. (43)

      The crux of the Court's analysis is not, however, focused on the fact that the State interfered with Tommie Granville's parental decision. Rather, what the Court scrutinized was its failure to apply a presumption in favor of a fit parent's decision, when it did intervene. (44) Tommie Granville's fitness as a parent was never questioned, yet still no special weight was lent by the trial court to her parental decisions; (45) nor was any weight given to the fact that Tommie Granville did not deny visitation altogether, but, rather, merely sought to limit it. (46) The Supreme Court criticized the trial court for ignoring the traditional presumption that fit parents will act in the best interests of their children, (47) citing previous decisions that recognized how "`natural bonds of affection lead parents to act in the best interests of their children.'" (48) In effect, the trial court had established a presumption in favor of grandparent visitation, thereby requiring Tommie Granville to affirmatively prove the notion that visitation would not be in the best interests of her children. (49)

      The Court's plurality opinion refused to define the "precise scope of the parental due process right in the visitation context." (50) The only guidance provided to lower courts was that they "must accord at least some special weight to [a] parent's own determination[s]" when faced with a situation where a fit parent's decisions are under review. (51) In making this decision, however, the Court has failed to provide any guidance on how to assess the validity of the visitation statutes themselves. It i8 clear, from this case that a grandparent visitation statute must, in some form, protect the fundamental rights of parental decision-making; however it is unclear how states should meet this challenge or accomplish this feat.

      Justice Thomas, in his concurrence, was the only Justice to state what standard should be applied. (52) According to Justice Thomas, since a fundamental right is at issue, the statute should be strictly scrutinized. (53) Additionally, he argued 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." (54)

      Justice Souter, on...