Grandparent Visitation

Every state's law allows court-ordered child visitation for grandparents, at least in some circumstances, although the standards for awarding visitation vary between the states. On June 5, 2000, the United States Supreme Court decided the case of Troxel v. Granville, which is likely to have a wide-ranging effect on grandparental visitation.

Background of the Troxel Case.

The case came out of the state of Washington. Following is a simplified summary of the facts.

Tommie Granville is the mother of two minor daughters. She did not marry their father, although they lived together for a time after the girls' birth. When the parents separated, the father moved to the home of his parents, Jenifer and Gary Troxel. The girls regularly spent weekends with their father at their grandparents' home. Then the father passed away. At first the girls continued to spend time regularly with their grandparents, but after about six months the mother told the grandparents they would be limited to one afternoon visit per month with no overnights. So they filed a court case asking for more time. The trial judge awarded them one two-day weekend per month including an overnight, four hours on each grandparent's birthday, and one week of vacation with overnights each summer. The judge made a finding that such a schedule would be in the girls' best interest in that they were part of a loving extended family that could give them exposure to their cousins and to music. The judge commented in court that as a child, he had spent a week with his grandparents during the summers.

The Washington statute (which means a law enacted by the legislature) on which the judge's decision was based allowed any person to be awarded court-ordered visitation with any children at any time, if it was in the children's best interest. This was an especially liberal visitation statute.

The mother appealed to the higher courts in the state of Washington. On appeal, the Washington Supreme Court voided the statute on the basis that it was unconstitutional under the federal Constitution because it interfered with the mother's right to make decisions about her children and it thereby violated her right to due process of law under the Fourteenth Amendment. The case ultimately was accepted for review by the United States Supreme Court, which upheld the decision of the Washington Supreme Court.

What the U.S. Supreme Court Ruled in Troxel.

The U.S. Supreme Court ruled that a parent has the right to make decisions about his or her children's care, custody, and control, which is perhaps the oldest of the "fundamental liberty interests" recognized by the Court, and violating that right deprives a parent of what is called substantive due process under the Fourteenth Amendment to the U.S. Constitution.
The U.S. Supreme Court ruled that there is a presumption (which means something that is considered to be true unless it is proven to be untrue) that a fit parent's decisions about his or her children are in the children's best interest, and a court cannot substitute its opinion for the parent's judgment about the children's best interest. The Court did not define "fit parent". In the Troxel case, there was no suggestion that the mother was unfit.
The U.S. Supreme Court pointed out that the trial court had not accorded any special weight to the mother's decision about the grandparent's visitation, thereby failing to acknowledge the presumption that her decisions were in the children's best interest: "The problem here is not that the Washington Superior Court intervened but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests If a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination."
The U.S. Supreme Court stressed that the mother had not totally cut off the grandparents' visitation, and what the trial court had intervened in was only a dispute about the schedule. Although that is repeatedly stressed, it does not seem to be pivotal in the decision because the Supreme Court also said a parent's liberty interest includes the right to decide whether a third party such as a grandparent will have any visitation at all.
The U.S. Supreme Court ruled that Washington's statute allowing any person to be awarded visitation at any time if the court determined it would be in the children's best interest, which Justice Sandra Day O'Connor described as "breathtakingly broad", was unconstitutional as applied to this mother in this particular situation. That is the holding of the case.

What the U.S. Supreme Court Did Not Rule In Troxel.

The U.S. Supreme Court did not invalidate the Washington statute, or any other statute of any state. Instead, the Supreme Court observed that visitation matters are decided on a case-by-case basis and no statute is necessarily unconstitutional on its face. The question is how the statute is applied in a particular situation. The Supreme Court indicated that even this "breathtakingly broad" Washington statute might not have been unconstitutional in its application to this mother, if the Washington courts had interpreted it differently.
The U.S. Supreme Court did not rule that for a court to substitute its judgment for that of a parent in regard to the best interest of children, there must be proof that it would be harmful to the children to do what the parent has decided. That was what Tommie Granville argued should be the standard, and the Supreme Court expressly declined to go that far in its ruling.
While the U.S. Supreme Court acknowledged that "special factors" might justify a state's interference with a parent's fundamental right to make decisions about the rearing of his or her children, it did not give examples of what some of those special factors might be. The Supreme Court said it was not deciding the "precise scope of a parent's due process right in the visitation context".
The U.S. Supreme Court did not accord any special status to grandparents compared to friends, non-relatives, or even strangers who might have sought visitation under Washington's any-person-at-any-time statute. The Supreme Court acknowledged that "grandparents and other relatives undertake duties of a parental nature in many households" and that in "an ideal world parents might always seek to cultivate the bonds between grandparents and their grandchildren." Nevertheless, the Supreme Court ruled the traditional liberty interest of a fit parent to make decisions about the children takes precedence over those considerations, even in this situation in which the father is dead and there does not appear to be any likelihood that the mother will allow his children to continue in a meaningful relationship with his side of the family without court-ordered grandparental visitation.

The U. S. Supreme Court's opinion in Troxel puts grandparents in the same category as anyone else who is not a parent. Because Troxel requires looking to the circumstances of a particular case and does not invalidate a grandparental visitation statute across the board, a parent who wishes to invalidate an existing visitation order cannot simply refer to Troxel and have the order invalidated. The parent would need to return to court for a hearing, at which the parent would argue that because of Troxel the particular visitation order is invalid based on the particular facts of the case. It is not clear, however, that Troxel will be applied to existing orders. It is possible the court would rule that by not appealing within 30 days after the order, the parent waived the right to make the arguments that Tommie Granville made in her case. If the existing order was made by a stipulation (agreement), there is a greater possibility the court would rule that by stipulating, the parent waived the right to make Tommie Granville's arguments.

In New York, by statute, a grandparent only has standing to seek visitation with a grandchild if the child's parent is deceased "or where circumstances show that conditions exist which equity would see fit to intervene." Therefore, where a child's parent has died, the grandparent has standing to seek visitation, which will be granted if the court finds that visitation is in the best interests of the child. If, however, both parents are alive, the grandparent seeking visitation must show some circumstance justifying judicial intervention.
The grandparents relationship with the child will be examined as will the grandparents attempts at maintaining a relationship with the child. The burden of establishing the best interest of the child is with the party seeking the visitation. New York in following the lead in Troxil places great weight on the discretion of the parent to decide whether or not said visitation will be harmful to the child. It is up to the grandparents to show that the child not only would not be harmed by this contact but would also benefit. The burden on grandparents to sustain this proof has always been high in the state of NY but while the highest court in this state did not feel the NY statute as written was invalid on its face, citing Troxil, the Court of Appeals did feel it added necessary burdens to the party seeking the visitation to show that the parent's judgment is not necessarily in the child's best interest.