IN THE AFTERMATH OF TROXEL V. GRANVILLE

• Date: 01 October 2001
• Published date: 01 October 2001
• Author: Michael E. Ratner
• DOI: http://doi.org/10.1111/j.174-1617.2001.tb00625.x

IN

THE AFTERMATH

OF TROXEL

K

GRANWLLE

Is

Mediation

the

Answer?

Michael

E.

Ratner

While the Court

in

Troxel

y.

Granville

opines about the problems litigation creates, that of both expense and intru-

sion into the lives offamilies in the midst ofgrandparent visitation disputes, the

Court

decision falls short ofposing a

solution. The focus ofthisnote is to propose astandard for mediation

as

aviable alternative to traditional litigation in

such cases. The hope is that mediation will serve the best

interests

of the child.

In

1999,

the United States Supreme Court granted certiorari to

Troxel

v.

Granville,

’

a case

that came out of the Washington Supreme Court, and entertained oral arguments in January

2000.2

Rendering its decision

on

June

5,2000,

the Court held that the application of the

Washington Grandparent Visitation Statute, with respect to this particular case, was uncon-

stitutional and included dicta concemingthe problems presented by the statute’s language?

Throughout the plurality opinion in

Troxel,

an underpinning concern was that statutes,

which purport to give grandparents greater rights to directly petition courts for visitation,

actually take away fundamental rights from the custodial parents.‘ Yet, the custodial parents’

fieedom to care, control, and maintain custody of their children is a right that the Supreme

Court holds

as

a liberty, protected by the Due Process Clause

of

the United States Constitu-

tion.’ Citing to seminal cases: the Court notes the importance of such protections in making

decisions concerning the care, custody, and control of their children under the Fourteenth

Amendment.’

A

fiuther concern and the motivation

of

this note is the Court’s dicta

on

the enormous bur-

den placed on the mother (custodial parent)

in

litigating against grandparents? “The litiga-

tion costs incurred by Granville [custodial parent] on her trip through the Washington court

system and to this Court are without a doubt already s~bstantial.”~ The Court noted that not

only there is a monetary concern but there is a concern that the litigation process is “disrup-

tive

of

the parent-child relationship” and that any additional litigation “would further burden

Granville’s parental right.”” In spite

of

the Court’s concern about the adverse affects that

prolonged litigation can have on children, nothing in this decision

speaks

of possible alterna-

tives to litigation.

Family law is

an

area of law drastically different in its ideology

from

many others. Family

law has a distinct emphasis in self-determination and goal of limited state intrusion into fam-

ily. In response to the concern of natural parents to the possible intrusion into family life,

along with the understanding

of

the enormous costs of litigation, the Supreme

Court

handed

down the decision in

Troxel.

This note serves to discuss whether there should be a statute

mandating that grandparent visitation cases go through a mediation type process before they

are litigated, a solution of which the Court in

Troxel

does not speak. The focus of this note is

FAMILY

COURT

REVIEW,

Vol.

39

NO.

4,

October

2001

454-468

0

2001

Sage

Publications

454