Troxel v. Granville: The Constitutionality of State Statutes Permitting Third-Parties to Petition for Visitation With a Child

• Author: Rachel Ary
• Pages: 409-435

Page 409

I Introduction

The Supreme Court first set forth the fundamental right of parents to make decisions concerning the care, custody, and control of their children in Meyer v. Nebraska¹ and Pierce v. Society of Sisters.² These cases form the groundwork for later Supreme Court decisions that affirm parents' fundamental right to make decisions affecting their children.³ In Troxel v. Granville,⁴ the Court addressed, for the first, time how these fundamental rights effect parents' control over visitation with grandparents and other third parties.⁵

In the decades since Meyer and Pierce were decided, the definition of the American "family" has continually changed and evolved.⁶ A large number of American children are no longer raised in a "traditional" two-parent family, and although a mother or father may not have an active role in raising the child, the maternal or paternal grandparents may wish to develop and/or continue a relationship with their grandchild.⁷ This changing landscape of families has forced states to consider a child's relationship with these parties in a way that was unnecessary in the past.⁸

American society has come to view the right of grandparents to petition for visitation with their grandchildren as important enough to be protected under state laws.⁹ Under common law, grandparents did not have the right to visit their grandchildren, which gave parents completePage 410 authority to grant or deny grandparents the privilege of visiting their grandchildren.¹⁰ Today, almost every state has recognized the changing realities of the American family and has enacted laws giving grandparents the right to petition for visitation under certain circumstances.¹¹ This change has resulted from the rising divorce rate and resulting disruption to children's lives, combined with the changes in child custody and visitation in connection with the divorce and dissolution laws.¹² The Washington statute at issue in Troxel was one of the more liberal statutes, allowing any third party to petition for visitation at any time, regardless of the petitioner's relationship to the child.¹³

The Supreme Court took a rare venture into the area of family law when it issued its opinion in Troxel. In a 6-3 decision, the Supreme Court held Washington Revised Code ß 26.10.160(3), governing third party visitation, unconstitutional.¹⁴ This holding may have far reaching effects, changing the rights of "family" members such as step-parents, grandparents, members of the homosexual community, and even parents, once states begin interpreting this decision.

This Note discusses the Supreme Court's decision in Troxel v. Granville, and what effects this decision may have on grandparent visitation statutes throughout the country. First, a background analysis of Supreme Court cases establishing parents' fundamental right to determine the care, custody, and control of their child will lay the groundwork for the basis the Court used in arriving at its decision in Troxel. Next, the facts in Troxel and the cases leading to the Supreme Court's decision will be discussed in order to provide insight into the analysis used by the lower courts. This section then discusses and analyzes how Washington Revised Code ß 26.10.160(3) violated Granville's fundamental rights as a parent under the Due Process Clause and how the Court came to that conclusion. Finally, this Note will discuss the impact the decision in Troxel may have on visitation statutes in other states, and the ways in which American families may be impacted by these changes.

The Supreme Court's opinion in Troxel continues to allow the states to grant visitation to third-parties, while at the same time upholding parents' fundamental rights to make decisions in the "best interests" of their children. However, the Court left several unresolved issues and made implications that will need to be interpreted by the states in the future.Page 411 Previously, states granted visitation if it was in the "best interests" of the child, without clearly defining this standard, and the Court has not defined "best interests" in its opinion. Also, this decision has not clarified the required showing of harm necessary to modify visitation, but the Court implied that the "best interests" standard may not always be adequate.¹⁵

The Fourteenth Amendment's Due Process Clause gives parents the fundamental right to make decisions in the "best interests" of their children.¹⁶ Under the Due Process Clause, no state shall deprive any person of life, liberty, or property without due process of law.¹⁷ Due Process "provides heightened protection against government interference with certain fundamental rights and liberty interests."¹⁸ The liberty interest at issue in Troxel is the interest of parents in the care, custody, and control of their children, which is one of the oldest fundamental liberty interests recognized by the Supreme Court.¹⁹

The Supreme Court found that Washington Rev. Code ß 26.10.160(3) swept too broadly in allowing any third party to petition for visitation, which was granted as long as it was in the "best interests" of the child.²⁰

In affirming the state court, the Supreme Court held "the application of ß 26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters."²¹

One important note to the Court's decision is that although the Court discussed the overbreadth of the Washington statute in allowing "any person" to petition for visitation,²² in the case at hand, the grandparents, not strangers, were petitioning for additional visitation.²³ If the Court based its decision only on the facts of this case, then it should not have been concerned about all of the possible parties that could petition for visitation of these children.

In their dissents, Justices Scalia and Kennedy set forth their opinions that family law decisions should be made at the state level within thePage 412 constraints of the state constitution.²⁴ Justice Scalia stated that state legislatures should make decisions regarding family law since they are able to quickly correct their mistakes.²⁵ Justice Kennedy stated that Troxel should be remanded to the state court to determine whether the "best interests" of the child standard gives sufficient protection to parents.²⁶ In his dissent, Justice Stevens set forth his opinion that there is room within the Due Process clause to allow the states to consider the impact on a child from arbitrary parental decisions that are not motivated by or serve the child's best interests.²⁷

Justice Stevens' dissent also set forth his belief that the Court should correct the two major problems he found with the Washington Supreme Court's majority opinion and remand the case for further review.²⁸ In his view, the first problem with the Washington Supreme Court's opinion was the state court's constitutional analysis.²⁹ Justice Stevens believed this analysis to be flawed because the provision in Washington Revised Code ß 26.10.160(3) granting "any person" the right to petition for visitation, and the absence of a provision requiring a showing of harm, do not establish a sufficient basis for holding that the statute is invalid in all applications.³⁰ Justice Stevens noted that a facial challenge should fail whenever a statute has a "plainly legitimate sweep,"³¹ and his dissent discusses the many instances where it would be constitutionally permissible for a court to grant visitation under this statute.³² Second, the Washington Supreme Court's holding that actual or potential harm to a child must be shown before a court may order visitation over a parent's objections was not supported by the Supreme Court's case law.³³

While, as the Court recognizes, the Federal Constitution certainly protects the parent-child relationship from arbitrary impairment by the State, we have never held that the parent's liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm.³⁴

Page 413

The analysis in Justice Stevens' dissent implied that there is no clear line of exactly what parental decisions are protected by the Constitution, and that there should be some flexibility in this analysis in order for the courts to take the child's interests into consideration.³⁵

II Background

A The Guaranteed Liberties Under the Fourteenth Amendment

In finding that the Nebraska Supreme Court erroneously convicted an individual for teaching foreign languages to young children in schools, the Supreme Court in Meyer v. Nebraska held that the parents' interest in allowing a teacher to educate their children in a manner they choose is an interest protected under the Fourteenth Amendment.³⁶ The Fourteenth Amendment states in part, "No state shall . . . deprive any person of life...