When Parental Rights and Children's Best Interests Collide: an Examination of Troxel v. Granville as it Relates to Gay and Lesbian Families

• Publication year: 2010

When Parental Rights and Children's Best Interests Collide: An Examination of Troxel v. Granville as It Relates To Gay and Lesbian Families

Brooke N. Silverthorn

Introduction

The Due Process Clause of the Fourteenth Amendment to the United States Constitution[1] includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests, including the right of parents to make decisions as to the care, custody, and control of their children.[2] Under the Fourteenth Amendment, the United States Supreme Court has long recognized this fundamental right of parents in the care, custody, and rearing of their children.[3] Traditionally, the state can only intervene in the parent–child relationship when there is a compelling state interest in doing so.[4]

In a plurality decision on June 5, 2000, the United States Supreme Court in Troxel v. Granville[5] held that a Washington statute violated the substantive due process rights of the mother by permitting the paternal grandparents an opportunity to obtain increased visitation rights.[6] The statute at issue, Washington Revised Code section 26.10.160(3), provided that "[a]ny person may petition the court for visitation rights at any time."[7]

The Troxel decision has significant implications for gay and lesbian families in two important ways: (1) it strengthens the position of homosexual biological or adoptive parents challenged by grandparents or other third parties, and (2) it opens the door to visitation claims by non-biological co-parents (hereinafter co-parents)[8] in the event of dissolution of their relationship.[9] Co-parents are sometimes referred to as "psychological parents"[10] or "de-facto parents"[11] in some courts.[12] Although the extent to which these doctrines help gay and lesbian families is still unclear,[13] recent case law suggests that state courts are increasingly more willing to recognize standing of the psychological or de-facto parent[14] to obtain visitation in the event of a separation.[15]

This Note addresses the implications of Troxel for gay and lesbian parents, and specifically, for visitation rights of non-biological lesbian co-parents in the event of a separation. Section I provides an overview of the constitutional rights of parents concerning decisions made in regard to their children. Section II analyzes the Troxel case. Section III discusses the implications of the Troxel decision on both biological gay and lesbian parents and on non-biological co-parents. This section also examines the difference between co-parents and grandparents as it relates to visitation rights. Section IV focuses on the trend in state courts regarding the use of doctrines, such as the psychological and de-facto parent doctrines, as they relate to the visitation rights of non-biological lesbian parents. Section V looks at more effective alternatives for protecting the relationship between non-biological lesbian parents and their children by allowing them standing to petition the court for visitation. It also suggests an alternative method to protect the on-going parent-child relationship by recognizing co-parents as legal parents entitled to the same legal protections as biological parents. This Note concludes that although a parent's fundamental right to care and control their children should be protected, it should also allow an important relationship between a non-biological co-parent and child to be protected as well.

I. Parents' Fundamental Right To The Custody, Care, And Control Of Their Children

A. The United States Constitution

Under the Due Process Clause of the Fourteenth Amendment, the Supreme Court has a long history of protecting the fundamental liberty interest of parents in the care, custody, and control of their children.[16] Encompassed in the definition of "custody" is a parent's right to make decisions concerning care, control, education, health, and religion.[17] Additionally, the law presumes that fit parents act in the best interest of their children.[18] Moreover, at common law, states give parents the authority to act on behalf of their children without state interference.[19]

However, although parents do retain a fundamental constitutional right to make decisions concerning their children, courts have held that this right is not absolute because states ultimately retain the power to protect their citizens.[20] The doctrine of parens patriae[21] gives states the power to intervene into the parent-child relationship if a parent cannot adequately care for his or her child.[22]

B. State Intervention

For the most part, each state legislature has discretion to determine the scope and direction of its family laws.[23] However, all state laws are subject to the Fourteenth Amendment constitutional protection of parental rights.[24] Inevitably, a state's interest in the parent-child relationship and a parent's interest in the parent-child relationship are not always congruent.[25] At such times, a court must defer to the parent's liberty interest unless it can find a compelling state interest to intervene in the parent-child relationship.[26] However, if a court finds a compelling state interest to intervene, then it will often use a "best interest" of the child standard to evaluate whether to grant custody or visitation.[27] This standard is increasingly met by co-parents, viewed by the court as "third parties," who wish to obtain visitation rights in opposition of the natural parents' wishes. [28] This is because state courts are increasingly recognizing that children benefit from important relationships with significant "third parties."[29] Additionally, at common law, some courts recognize special circumstances under which an exception to the general rule against interfering with parental autonomy could be granted.[30]

Contrary to the "best interest" standard, some courts look to "unfitness" as a test to find a compelling state interest.[31] Factors looked to under this test include: "abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child."[32] Consequently, the unfitness standard, coupled with the presumption that fit parents act in the best interests of their children, makes it much more difficult for a third party to obtain custody or visitation in the face of opposition by a natural parent.[33] The unfitness standard is also troubling as it relates to non-biological co-parents because it does not allow for other "compelling factors" that may be present absent a finding of parental unfitness.[34]

II. Troxel v. Granville

A. The Facts

Tommie Granville and Brad Troxel never married, but together did have two daughters, Isabelle and Natalie.[35] Granville and Troxel subsequently ended their relationship in 1991, at which point Brad Troxel moved in with his parents, Jenifer and Gary Troxel, the petitioners in this case.[36] Because Brad was living with his parents, when he had visitation with his daughters on the weekends, he brought them to his parents' home.[37] In May of 1993, Brad Troxel committed suicide.[38] For a few months following Brad's death, the Troxels continued to have regular visitation with their granddaughters.[39] That changed, however, in October 1993 when Granville informed the Troxels that she wanted to limit their visitation to one visit per month.[40] Two months later, in December 1993, the Troxels filed suit against Granville in order to retain visitation rights with their granddaughters.[41] The Troxels brought the action under two Washington state statutes, only one of which was at issue in this case.[42] Washington Revised Code section 26.10.160(3) provides: "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances."[43]

At trial, the Troxels petitioned the court for two weekends of overnight visitation per month and two weeks of visitation per summer.[44] Granville, however, requested that visitation be

restricted to one day per month with no overnight stay.[45] In 1995, the trial court entered a decree granting the Troxels visitation one weekend per month, one week during the summer, and four hours on both grandparents' birthdays.[46] Granville appealed.[47]

1. Washington Court of Appeals Decision

The Washington Court of Appeals reversed the lower court's visitation decree and dismissed the Troxels' petition for visitation because it found that they lacked standing—no child custody proceeding was pending when the Troxels commenced the action.[48] While the superior court seemed to have applied the plain meaning of the statute in awarding visitation rights to the Troxels, the appeals court looked to the legislative intent.[49] The court reasoned that applying the plain meaning of the statute could lead to "absurd" results that the "canons of statutory construction forbid."[50]

The court then determined that, when read in light of other case law and statutory provisions, the legislature only intended to confer standing to petition for visitation in the context of a custody proceeding.[51] Therefore, the appeals court concluded, "[t]he legislature could not have intended to open the door to ‘any' person petitioning for visitation ‘at any time,' having created such strict standing requirements for third party custody proceedings."[52]

Further, the court noted that the legislature amended another Code provision limiting the conditions under which a non-parent can petition for visitation rights.[53] This provision was amended to provide that a non-parent could not petition for visitation unless one or both of the child's parents had commenced an...