Grandparent Visitation Laws

are Constitutional

By Richard S. Victor, Esq.

There seems to be some confusion following the recent U.S. Supreme Court case of Troxel v Granville. On June 5, 2000, the high Court released its opinion on this much anticipated decision involving paternal grandparents of two children born out of wedlock in the state of Washington. When the decision hit the wire services, it was reported in the national press that the court limited the rights of grandparents as being an unconstitutional infringement of the right of parents to raise their children as they see fit. Most local media around the country, both electronic and print, went with the story disseminating an incorrect perception of what really happened. This has created much confusion. In fact, the high Court did not rule on the issue of grandparent rights, other than to hold that these type of cases must be decided on a "case-by-case basis", and that "we would be hesitant to hold that specific non parental visitation statutes violate the Due Process Clause as a per se matter". The Court then went on to cite all fifty state grandparent visitation statutes and hold that they were not unconstitutional.

Because the Troxel case involved children born out of wedlock, the grandparents could not utilize the Washington State grandparent visitation law (sec. 26.09.240). That statute allows grandparents to file a request to see their grandchildren, but only if there has been a death of a parent or a divorce. Since the parents were never married, the Troxel grandparents could not file their action under the Washington grandparent law. They were forced to file their case based on another Washington law (sec.26.10.160) which provided that "any person at any time" could file a request to visit with a child. This law had already been repealed in all the other statutes within the State of Washington and this language does not appear in any other law (grandparent or otherwise) in the country.

The Washington State Supreme Court ruled that this broad law was unconstitutional and that grandparents would have to show substantial harm to a child before they would be allowed to seek and secure grandparent visitation. The U.S. Supreme Court affirmed the Troxel case as it pertained to deciding that the "any person at any time" language was over broad as it applied to this case only, and indicated that because it only pertained to that one state statute in the State of Washington, it did not affect the grandparent visitation laws throughout the rest of the country. In fact, the grandparent visitation law in the State of Washington for children of divorce is not affected by this ruling and all fifty state laws which pertain to grandparent visitation, if it is in the best interests of the child, will remain intact.

Justice O’Connor, writing for the majority, stated:

" Because we rest our decision on the sweeping breadth of sec.26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court-whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context...Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter."

This decision is applauded because the reality of "family" has changed significantly in recent decades. The concept of parental autonomy, grounded in the assumption that parents raise their own children in nuclear families, is no longer to be taken for granted. According almost absolute deference to parental rights is now less compelling because the traditional nuclear family has eroded. Grandparent visitation laws did not create that erosion. More varied and complicated family structures have arisen because of divorce, decisions not to marry, single-parent families, remarriages and step-families, parents who abandon their children to temporary caretakers and children being raised by third parties because parents are deemed unfit.

It would be a significant disservice to the children of this country, who look at their families through their own eyes, to ignore their reality of what family is to them. We must recognize that in some families the parents are not necessarily legally related to the same people as their children. A woman who divorces her husband or a mother of children whose father has died may no longer be related to the grandparents of her children, but the children still have a connection through bloodline and heritage to their grandparents. They are family to that child.

Grandparent visitation laws conditioned on visitation being in the child’s best interest are expressing a fundamental liberty interest of both grandparent and grandchild. Should a parent, only one in the chain of three generations, be given constitutional sanction to amputate the family unit of the child? Fortunately the U. S. Supreme Court said NO! By holding that these cases must be decided on a "case by case basis", the majority of the Supreme Court held that the millions of grandparents and grandchildren who have been reunited because of laws protecting their rights, will not be threatened with amputation by critics who claimed that these laws were unconstitutional.

The hard part, now, is to undue the damage which was created by the media sending out the wrong message nationwide. The national non-profit Grandparents Rights Organization has worked non stop since this case was decided and wrongly reported to help make sure that our nations’ grandparents know that they have not been abandoned by the law. In fact, our Supreme Court has once and for all put to rest the question of whether these laws, in all fifty states, are constitutional. They are.

The Grandparent Rights Organization encourages all of its members to write letters to their local media in order to inform them of the correct ruling from the U.S. Supreme Court. Any member may copy this newsletter and send it to the media with their own letter in order to better explain the problem.