The Troxel Aftermath: A Proposed Solution for State Courts and Legislatures

• Author: Sonya C. Garza
• Position: Associate Professor of Law, New England School of Law
• Pages: 927-954

Associate Professor of Law, New England School of Law. J.D. Stanford Law School, 2000. B.A. The University of Texas at Austin, 1997. I would like to thank Adrianne Pusateri Ramos and Abigail Ross for their tireless research. This Article is dedicated to my niece and nephews-Isabel, Jack, and Nate. You are the most loved grandchildren.

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I The Debate Over The Federalization Of Family Law

One of the biggest controversies in family law today stems from the lack of uniformity in laws across jurisdictions. Most people assume there has always been a lack of involvement in family law by the federal courts. Prior to the advent of modern family law statutes, the U.S. Supreme Court stated "the whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."¹ However, without the "federal government's role in the regulation of the family,"² family law would not exist as it does today. Only recently have scholars started to discuss the impact of federal law in shaping the development of family law. Historically, all branches of the federal government were "actively engaged in creating and enforcing laws that bore directly on families," often using "uniform federal standards" to do so.³ For example, a pension program for the survivors of Revolutionary War veterans required rules on who could qualify as a spouse or child of the deceased veteran.⁴

In addition, the idea of state sovereignty has often been used "as a theory of convenience, strategically invoked and easily dismissed or ignored" in an effort to allow the federal government more flexibility to enter into the realm of family law at its discretion.⁵ As Susan Collins points out, in the women's suffrage campaign, polygamy, liberalized divorce laws, and interracial marriage attracted national attention as Page 928 threats to the traditional family. In the course of debates over proposed regulatory responses, the proper place of the family in the national republic emerged as a heavily contested issue, and the notion that domestic relations fall under the exclusive authority of the states took shape and gained force as a theory of federalism.⁶

The same moral debate continues to occur at the national level today when discussing same-sex marriage, abortion, and as exemplified in this Article, parental rights.⁷

However, the federal courts continue to treat matters of family law with much disdain.⁸ One of the more recent examples is the Supreme Court's decision in United States v. Morrison.⁹ In Morrison, the Court held that a provision of the Violence Against Women Act was unconstitutional due to the "need to distinguish 'between what is truly national and what is truly local.'" In the majority opinion, Justice Rehnquist assumed the federal government lacks any role in family law issues. If Congress may criminalize violence against women-due to its aggregate economic effect-under the Commerce Clause, then Congress may constitutionally regulate "family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and child rearing on the national economy is undoubtedly significant."¹⁰ Justice Scalia uses the same rationale favoring state control of family law matters, or as he sometimes defines such matters as those of "morality"¹¹ in his majority opinion in Town of Castle Rock v. Gonzales¹² and dissenting opinion in Lawrence v. Texas.¹³

Contrary to these statements by the Supreme Court, there is actually a long "history of the federal government's role in crafting Page 929 domestic relations law and policy."¹⁴ While "states have primary responsibility for the regulation of families . . . the federal government has considerable authority to intervene and often has done so."¹⁵ However, when the federal government does choose to enter into the realm of family law, as the Supreme Court did in Troxel v. Granville,¹⁶ states do not understand the implications. After federal action, state laws often remain unchanged or inadequately amended, leaving state statutes subject to invalidation by the federal courts. More importantly, federal court decisions that were intended to be directly applicable to the entire nation, or at the very least to serve as guidelines for state legislative reforms, lead to completely different laws across state boundaries.

This Article does not argue for or against the federalization of family law but demonstrates why the debate exists and proposes a solution to one issue-third-party visitation-within this controversy. While many scholars have offered suggestions in the past to repair the problems created in the Troxel decision,¹⁷ no one has proposed a uniform solution-a law which all states may use as guidance in redrafting their own third-party visitation statutes. This Article begins by discussing the history of parental rights, the oldest recognized fundamental right, in Part II. Part III addresses the history of third-party visitation statutes. Part IV analyzes the Troxel opinion in its entirety. Part V discusses the states' judicial and legislative responses to the Court's decision and the varying nature of third-party visitation statutes across the country. Part VI briefly discusses an alternative for state use of third-party visitation statutes as they currently function to argue why a uniform statute is so important. Part VII concludes by offering a solution to the Troxel puzzle by proposing the adoption of uniform third-party visitation legislation by states. Page 930

II The History Of Parental Rights

The constitutionally protected right to control the care of one's children was first recognized in the 1920s in the United States Supreme Court decisions of Meyer v. Nebraska¹⁸ and Pierce v. Society of Sisters.¹⁹ Meyer and Pierce are "often seen as the only two remaining Lochner-era substantive due process cases that are still good law today."²⁰ In Meyer, Robert Meyer, an instructor at the Zion Parochial School, was convicted under a Nebraska statute that prohibited the teaching of foreign languages in schools until a student successfully completed eighth grade. Meyer challenged the law as a deprivation of teachers' and parents' liberty without due process of law.²¹ While the Court conceded that the purpose of the statute was within the reasonable police powers of the state, the Court ultimately held that the law infringed on individual liberty, which, amongst many things, protects an individual's "right to . . . marry, establish a home and bring up children, . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."²²

In Pierce, the Court reiterated the holding in Meyer. At issue in Pierce was an Oregon Compulsory Education Act, which required parents to send their children between the ages of eight and sixteen to a public school within their residential district.²³ Again, following the decision in Meyer, the Court held that the Act "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control."²⁴

Meyer and Pierce were cited repeatedly in numerous Supreme Court decisions that followed.²⁵ In addition, parental rights were Page 931 seen as the "very foundation of social order."²⁶ Courts have always been hesitant to involve themselves in matters of the family or to allow other branches to interfere since the home has always been shielded by privacy. The assumption has been that the family itself is better equipped to deal with internal conflict and that government interference only leads to more disruption. Even in the early 1990s, when third-party visitation statutes existed in all states, the Supreme Court's jurisprudence continued to reflect a hands-off approach to the family.²⁷ In addition, it has often been argued in custody disputes that government recognition of the rights of a third party would create more conflict and also lead to a "detrimental impact [on] the child[ren]."²⁸

However, the strength of the fundamental parental right of care, custody, and control in current constitutional family law jurisprudence was unclear until Troxel v. Granville.²⁹ In 2000, the Supreme Court directly addressed a parent's fundamental right in the context of the state of Washington's grandparent visitation statute. Since 2000, family law practitioners and, more importantly, judges have continued to struggle with the status and constitutionality of existing third-party visitation statutes. Further, the number of third parties, not just grandparents and relatives, who could potentially petition for visitation is growing exponentially given the changing dynamic of the family. Troxel was much needed when the case was decided, but the ultimate holding resolved very little for states.

III The History Of Third-Party Visitation Statutes

"The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of [the] changing realities of the American family."³⁰ State legislatures Page 932 began drafting statutes allowing for third parties to petition for visitation rights of minors in the late 1960s for this exact reason- the changing composition and...