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repealed in all the other statutes within the State of Washington and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.
writing for the majority, stated:
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.
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
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.