THE RIDDLE OF TROXEL

• DOI: http://doi.org/10.1111/j.174-1617.2003.tb00869.x
• Author: Mary E. O'Connell
• Date: 01 January 2003
• Published date: 01 January 2003

THE

RIDDLE

OF

TROXEL

1s

Grandma the State?

Mary

E.

O’Connell

This article addresses the United States Supreme

Court

case of Troxel

v.

Granviile, which

is

unique for its attention

to the changing face of the American famiiy and the Court’s willingness to venture into the troubled waters of family

law. Troxel conflates standing with standard5 aiid

muddies

the lines between private and public, between

therapeutic intervention and state coercion. The article attempts to unravel the chalienge of Troxel, considering both

the

cases’

signiticance and intlammatory potential, while also raising significant questions that will confound

professionals

for

years to come.

In the

2.5

years since the

U.S.

Supreme Court issued its decision in

Troxel

v.

Grunville,]

the case has been dissected in forms ranging from contemporaneous commentary’ to entire

issues of law reviews.’ This is not surprising.

Troxel

was destined to generate debate for at

least two reasons. First, the

U.S.

Supreme Court rarely ventures into the troubled waters

of

family law. For more than a century, the so-called “domestic relations exception” kept cases

about “the right to the control and possession of

.

.

.

[a]

~hild”~ out of the federal arena.5

Despite the sharply augmented presence of federal courts and Congress in the family law of

the late 20th century,6 family law decisions by the

U.S.

Supreme Court remain

so

few in num-

ber that each has the potential to effect enormous change.

So

might it be with

Troxel.

A second reason for the tempest over

Troxel

is its subject matter: The case is about the

changing face of the American family. Although historians insist that family is an ever-

evolving enterprise,’ the larger culture resists that message.’ The mere suggestion

of

change

in the family evokes furious back-pedaling and cries ofdoom. From Dan Quayle’s attack on

Murphy Brown’ to George

W.

Bush’s plan to spend

$300,000,000

to “promote marriage,”’”

reactions to the evidence of change in the family are rarely temperate.

Considering its significance and inflammatory potential, unraveling

Troxel

is

a

challenge.

The case’s six opinions and the absence of a majority” only add to the confusion. And like

much of the work of the Supreme Court,

Troxel

may be as important for what it omitted as for

what it decided.

BACKGROUND: THE VISITATION STATUTES

As

a

legal matter, the

Troxel

Court faced

a

straightforward question: Did a statute enacted

by the State of Washington in

1987’*

violate the

U.S.

Constitution? The challenged statute

gave third parties” court-enforced access to children over their parents’ objection. Writing

for the pl~rality,’~ Justice Sandra Day O’Connor described the Washington statute

as

“breathtakingly broad,”Is noting that it allowed any person to petition

for

visitation with a

child at any time. Under the statute, a person who had known the child for

15

minutes could

petition for visitation, even though

no

legal issue involving the child was then pending in the

court.

FAMILY COURT REVIEW,

Vol.

41

No.

1,

January 2003 77-87

D01: 10.1

I77/153

1244502239353

O

2003 Association

of

Farnily and Conciliation Courts

77