STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

DOIhttp://doi.org/10.1111/j.174-1617.2003.tb00864.x
Published date01 January 2003
AuthorKristine L. Roberts
Date01 January 2003
TROXEL
v.
GRANVZLLE
AND ITS IMPLICATIONS
FOR FAMILIES AND PRACTICE:
A MULTIDISCIPLINARY SYMPOSIUM
STATE SUPREME COURT APPLICATIONS OF
RELUCTANCE TO DECLARE GRANDPARENT
VISITATION STATUTES UNCONSTITUTIONAL
Kristine
L.
Roberts
TROXEL
v.
GRANVZLLE
AND THE COURTS’
In
this article, the authorreviews state supreme court applications
of
Truxd
v.
Granville,
analyzing
the impact ofthe
decision on the
courts’
ongoing
efforts
to adjudicate visitation disputes between parents and grandparents. Set
agyinst a background of legislative recognition of grandparents’ rights and judicial uncertainty regarding the appro-
priate
role
of
nonparents
in
children’s lives,
Troxel
reaffirmed the constitutional right
of
parents
to
direct their chil-
dren’s upbringing. The author argues that state supreme courts evaluating grandparent visitation statutes
and
seek-
ing to enforce
Troxel’s
presumption
in
favor of parents should he more willing to strike
down
overly broad statutes.
Such
an
approach would
be
a
positive step toward addressing the excessive judicial
discretion
that the
Troxeí
Court
found
so
problematic, and would signal to
state
legislatures the need for statutes that hoth provide
for
the needs
of
children and protect parental rights.
In
Troxel
v.
Granville,‘
a plurality of the
U.S.
Supreme Court held that a state nonparent
visitation statute was unconstitutional as applied to
a
fit
parent, Tommie Granville, who dis-
agreed with the amount of visitation sought by her daughters’ paternal grandparents, Jenifer
and Gary Troxel.2 The statute, section 26.101
.O1
(3)
of the Revised Code of Washington, had
authorized Washington courts to award visitation to any person who petitioned at any time
if
visitation was in the best interests of the childa3 Pursuant to this statute,
a
superior courtjudge
had determined that visitation with the Troxels was in their granddaughters’ best interests4
On appeal to the Supreme Court, Granville argued that the decision infringed her substantive
due process rights with regard to the care, custody, and control of her children.5
A
plurality of
the Court found in her favor, criticizing the superior court judge’s substitution of his own
judgment
of
the children’s best interests
for
Granville’s.6
However, the plurality did not hold that the Washington visitation statute was unconstitu-
tional per se but rather only as applied to Granville’s case.’
In
fact, even though Justice
O’Connor, writing for the plurality, took issue with the statute as “breathtakingly broad,”x
she expressed a reluctance to strike down specific nonparent visitation statutes “as a
per
se
matter.”’ The plurality approvingly cited state court decisions that, in contrast to the Wash-
ington Supreme Court’s reading of section 26.1
O.
160(3),1°
interpreted their states’ statutes
more narrowly than the texts demanded, either by adding requirements to protect parental
rights or by adding content to the best-interests standard.” In sum, the constitutionality
of
a
particular nonparent visitation statute “turns on the specific manner
in
which [it] is
applied.”‘*
FAMILY
COURI
KEVIEW, Vol.
41
No.
1,
January
2003 14-38
DOI:
10.1
177/1531244502239348
O
2003
Association
of
Family
and
Conciliation Courts
14
Roberts
/
GRANDPARENT VISITATION
STATUTES
15
Perhaps it should not be surprising, then, that the state courts that have examined
nonparent visitation statutes since the
Troxel
decision have been similarly reluctant to
declare these statutes unconstitutional.13
For
the
most part, in cases involving grandparent
suits for visitation rights, state courts either have endeavored to interpret their states’ statutes
to be facially constitutional
or
have held that specific applications of the statutes failed to
meet the
Troxel
standard.
To
reach these results, some courts have construed the statutes to be
stricter than written. Other courts have emphasized the ways in which their states’ laws are
distinguishable from the broadly sweeping Washington statute. On one hand, these develop-
ments reflect the
Troxel
plurality’s observation that cases in this area are fact-specific, and
it
seems logical to leave the statutes flexible enough to accommodate a wide range of cases.
The courts may
also
be mindful
of
Justice Stevens’s dissenting opinion in
Troxel,
in which he
criticized the Washington Supreme Court’s facial invalidation of
a
statute that had a “plainly
legitimate ~weep.”’~
On
the other hand, as Justice Souter’s concurring opinion in
Troxel
sug-
gested,” state court decisions that leave the statutes broadly worded implicitly sanction, or at
least fail to check, the trial court discretion that the
Troxel
Court found problematic.
This article examines state supreme
COUR
applications of
Troxel v. Granville
in
grandpar-
ent visitation cases and the trend to avoid declaring visitation statutes facially unconstitu-
tional. It provides a brief look at the state
of
the law before
Troxel,
tracing the passage of
grandparent visitation statutes and discussing parents’ early challenges to the constitutional-
ity of the statutes. The article describes the
Troxel
case and the Supreme Court’s decision,
and analyzes grandparent visitation cases decided by state supreme courts since
Troxel,
studying the courts’ interpretations of
Troxel
and applications to state statutes. It also consid-
ers tit he ways in which
Troxel
changed the law of grandparent visitation, concluding that
state supreme courts should be more willing to hold overly broad visitation statutes
unconstitutional.
BACKGROUND: GRANDPARENT VISITATION BEFORE
TROXEL
THE EMERGENCE
OF
NONPARENT VISITATION STATUTES
AND THE EXPANSION
OF
GRANDPARENTS’ RIGHTS
Nonparent visitation statutes, not existent before the late
1
96Os,l6 today permit grandpar-
ents (and often other nonparents) in al1 fifty states to petition courts for the right to visit their
grand~hi1dren.l~ Before the passage of the statutes, grandparents-like al1 other nonparents-
had no right to sue for court-ordered visitation with their grandchildren.18 Under common
law, a grandparent who was forbidden by his
or
her grandchild’s parent from visiting the
child was normally without legal recourse.
The common law mle against visitation by nonparents sought to preserve parental auton-
omy,
in
part as
a
value in itself, in part as a means of protecting children, and in part to serve
broader social goals. First, courts traditionally expressed reluctance to undermine parents’
authority by overruling their decisions regarding visitation and by introducing outsiders into
the nuclear family.20 This common law tradition received constitutional protection
in
the
1920s
when the Supreme Court held that a parent’s right to direct the upbnnging of his
or
her
children was
a
fundamental liberty interest
in
Meyer v. Nebraska2’
and
Pierce
v.
Socieíy
oj
Sisters.”
Second, under common law, courts presumed that achild’s parents act
in
the child’s
best intere~ts’~ and recognized that conflicts regarding visitation are a source of potential
harm to the children involved.” Third, the common law tradition understood parental author-

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex