Non-Parent Visitation in Louisiana: A Post-Troxel View of Article 136

Author:William Bradley Kline

I. Introduction II. The Troxel v. Granville Decision A.Background: The Changing American Family B.The Supreme Court's Decision 1. Justice O'Connor's Plurality Opinion: Facts, Procedural History, and Judgment 2. Concurring and Dissenting Opinions C.Summary: Open-Ended Issues from Troxel 1. Relevant Issues in Third Party Visitation 2. Troxel's Immediate Impact III. State Court Interpretations Of... (see full summary)


The author would like to thank Professor J. Randall Trahan for his insight, guidance, and pep-talks. He would also like to thank his grandfather, William F. Kline, for his unwavering support and inspiration.

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I Introduction

A parent's right to control and direct the upbringing of a child is one of the oldest and most fundamental of the individual liberties afforded by the Constitution.1 The United States Supreme Court has recognized this right within the Due Process Clause of the Fourteenth Amendment,2 allowing parents the right to "establish a home and bring up children."3 The right to make visitation decisions regarding the child-determining who can see the child and when they can do so-is inherent in the power to direct a child's upbringing.4 On the other hand, governments have a legitimate interest in promoting and maintaining extended family relationships between children and their extended family.5 To accomplish this legitimate purpose, state governments have enacted statutes that allow a child's grandparents or collateral relatives to petition for visitation rights in certain situations.6 In passing such legislation, however, state legislatures must not unconstitutionally infringe on the parent's right to direct the rearing of the child. In sum, in order to withstand constitutionality challenges, grandparental and third party visitation statutes must strike a balance between the government's interest in maintaining extended family relationships and a parent's constitutional right to direct the "care, custody, and control of their children."7 Page 472

The Louisiana Legislature has addressed these two competing interests in the Louisiana Civil Code8 and its revised statutes.9Enacted in 1993, both provisions provide a means for third party family members to petition for visitation rights to a child relative. Civil Code article 136 allows grandparents, step-grandparents, former step-parents, and relatives by blood or affinity to seek reasonable visitation rights.10 The listed parties can be granted visitation rights in "extraordinary circumstances" and when the visitation is in the child's best interest, and article 136 provides an illustrative list of five factors to be considered by a court in determining if the visitation is within the child's best interest.11Alternatively, Louisiana Revised Statutes section 9:344 provides standing for a child's grandparents and siblings to seek reasonable visitation in cases where one parent has died, has been interdicted, or has been incarcerated.12 The statute allows visitation to those parties both when the child's parents were married then divorced or separated and when the child's parents lived in open concubinage before the death or incarceration of a parent.13Finally, in the case of a conflict between these two provisions, section C of article 136 defers to Louisiana Revised Statutes section 9:344.14 The latter statute, therefore, applies where a parent is dead, interdicted, or incarcerated and the absent parent's parent or a child's sibling seeks visitation of the child. In other "extraordinary circumstances,"15 article 136 provides any relative the right to petition for visitation.

Of the two legislative enactments, the first to come under constitutional attack was article 136. In Reinhardt v. Reinhardt, the Louisiana First Circuit Court of Appeal held that the article did not substantively intrude on a mother's right to deny visitation to her child's paternal relatives.16 According to the majority, article 136 was narrowly drawn to allow visitation only in "set, restrictive conditions."17 Therefore, the article did not unduly infringe on the mother's constitutional right. Page 473

The Reinhardt decision, however, preceded the United States Supreme Court's landmark decision in Troxel v. Granville,18 a case in which the Court struck down an overly broad Washington state statute providing standing for anyone to petition for visitation rights at any time.19 Since Troxel, a number of state courts have addressed the constitutionality of their own grandparental and third party visitation statutes, including Louisiana.20 However, Louisiana's appellate courts have only addressed Louisiana Revised Statutes section 9:344 in the post-Troxel context,21 while no Louisiana court has directly examined article 136 after the 1998 Reinhardt decision. As recently as 2007, the Louisiana First Circuit has recognized the potential overbreadth of article 136, suggesting that the article may improperly infringe on a parent's substantive due process right.22 The article is clearly more narrowly drawn than the all-inclusive Washington statute,23 but it is also broader in scope than section 9:344, which more strictly limits both the class of persons permitted to seek visitation and the circumstances in which they can do so.24 In order for article 136 to withstand a constitutional challenge, the Louisiana Supreme Court must both impose a heightened burden of proof on the petitioning party to show extraordinary circumstances and indulge a strong presumption that a parent's visitation decisions are made in the child's best interest.25 Without observing these principles, the application of article 136 may lead to unconstitutional state court review of parents' fundamental child-rearing decisions.

This Note's purpose is two-fold: (1) to provide an overview of grandparental and third party visitation case law from Louisiana appellate courts, other state high courts, and the Supreme Court's Troxel decision, and (2) to address the facial constitutionality and the potential unconstitutional application of Louisiana Civil Code article 136 in light of the rulings from these courts. Part II of this Page 474 Note details the Supreme Court's Troxel decision. Part III presents Louisiana's jurisprudential reaction to Troxel concerning both Louisiana statutory sources for grandparental and third party visitation rights. Part IV examines post-Troxel state decisions in Pennsylvania, New York, and Minnesota, including a discussion of those states' respective visitation statutes in comparison with article 136. Part V analyzes article 136 in light of the decisions discussed in Parts II, III, and IV and provides constitutionally sound points of law for interpreting article 136.

II The Troxel v. Granville Decision
A Background: The Changing American Family

In the decades leading up to the Supreme Court's decision in Troxel, the definition of the "traditional" American family drastically changed. An increase in broken families, a higher divorce rate, an increase in children living in grandparents' homes, and an increasingly mobile society have factored into the legislative move toward preventing the deterioration of the traditional family.26 As part of that effort, grandparental and third party visitation statutes seek to foster and maintain the relationship between a child and the paternal or maternal relatives, an objective that courts have held is a legitimate governmental interest.27 In fact, all fifty states eventually adopted statutes that provided some form of third party visitation.28 However, the clash between state interests and parental fundamental rights eventually led to the constitutional challenge in Troxel, where a single mother fought against the visitation rights of her daughters' paternal grandparents.29 The following section outlines the facts, arguments, and constitutional issues at play in that case. Page 475

B The Supreme Court's Decision
1. Justice O'Connor's Plurality Opinion: Facts, Procedural History, and Judgment

Troxel's facts are simple. Tommie Granville and Brad Troxel were involved in a relationship but remained unmarried.30 The couple had two daughters, Isabella and Natalie.31 After the relationship ended, Brad lived with his parents and frequently brought his daughters home for weekend visits until two years later when Brad committed suicide.32 His parents (the plaintiffs) enjoyed visitation with their granddaughters on a regular basis for a period after Brad's death, but soon thereafter Tommie sought to limit their visitation to one visit per month.33 Those circumstances led the plaintiffs to file a petition against Tommie in Washington state court, seeking greater visitation rights under Washington Revised Code sections 26.09.240 and 26.10.160(3).34 In the trial court, the plaintiffs were awarded visitation with their granddaughters for one weekend per month, one week during the summer, and four hours on each of the plaintiffs' birthdays, a judgment which Tommie appealed.35 After...

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