Justices to Hear Grandparents’ Visitation Plea

It began as a disagreement over whether young Natalie and Isabelle would stay overnight twice a month with their grandparents or instead spend one day with them each month, as their mother wished.

On Wednesday, this intergenerational family dispute comes before the U.S. Supreme Court, with the fate of “grandparents’ rights” hinging on the outcome.

At issue are basic questions about the role of government in family affairs. Can the courts intervene to preserve extended families or does such “micromanagement” interfere with parents’ right to raise their children?

More than 60 million Americans proudly claim the title of grandparent, and in a recent survey more than two-thirds of them said that they see their grandchildren at least once a month.

But all family relationships can fray, especially when a divorce or death tears the parents apart. In a growing number of such cases, grandparents are going to court to obtain scheduled visits with their grandchildren.

“We’d lost a son, and we feared we were going to lose the girls too,” says Jenifer Troxel, a 59-year-old grandmother who lives just north of Seattle. Her husband, Gary, 60, was the lead singer of the Fleetwoods, whose hit records from the late 1950s and early 1960s included “Come Softly to Me” and “Mr. Blue.”

Natalie and Isabelle were born during the two years that their mother, then Tommie Granville, lived with their father, Brad Troxel. But in 1993, when the girls were 4 and 2, their father committed suicide. After his death, the elder Troxels wanted to maintain close ties with the girls.

But that same year, the mother married and began raising a combined family of eight children. Now Tommie Wynn, she favored occasional visits from the Troxels but balked at regular overnight stays and weeklong trips during the summer.

“We needed time to be a family with no conflicts,” she says.

Dissatisfied, the Troxels filed a lawsuit in December 1993, asking for court-ordered overnight visits “every other weekend [and] reasonable time on holidays and school vacations, especially Thanksgiving weekend, the Christmas holidays and Easter weekend and summer vacation time.”

“We were forced to go to court,” the grandmother says. “We wanted something consistent, something we could count on. She [the mother] had restricted us mostly to Sunday afternoons. And we felt that was wrong.”

The mother says she thought it was wrong to “have somebody else dictate to us about our children’s schedule [and] to be told we couldn’t say no to them.” But to her surprise, the law in most states favors determined grandparents over resistant parents.

Thanks to the powerful grandparents’ lobby, led by the AARP, legislators in all 50 states have passed laws that authorize court-ordered visits for grandparents. The movement took off in the 1970s, a period when grandparents in increasing numbers were forced to take over caring for the offspring of wayward or drug-addicted children. A recent survey by AARP showed that roughly 1 in 9 American grandparents is a caregiver for at least one grandchild.

However, most court orders do not involve grandparents who have raised their grandchildren for a time. Nor do they turn on whether the parents are unfit or neglectful.

Rather, under current laws, a judge simply decides whether the visits would be “in the best interest” of the child. Grandparents can offer a child additional warmth, stability and a richer sense of family life, advocates argue.

Washington state’s law, adopted in 1973, is unusually open-ended. It says that “any person may petition the court for visitation rights at any time,” as long as it is deemed best for the child.

California law says that a judge “may grant reasonable visitation rights to the grandparent” if there has been a “bond” between grandchild and grandparent. Some limits are set, however. When the two parents are married and living together, forced visitations by grandparents are frowned upon under California law.

Not so in Washington. Tommie Wynn and her husband, Kelly Wynn, opposed the Troxels’ request for regular overnight visits, but the parents’ wishes were ignored. After a daylong hearing in December 1994, the judge announced, “I think it would be in the best interest” of the two children to stay overnight with their paternal grandparents. He ordered once-a-month visitations, which were to begin at 4:30 p.m. Saturday and last until 6 p.m. Sunday.

The Wynns appealed and a year ago won a ruling from the state Supreme Court, which struck down the law. Parents have “a constitutionally protected right to rear their children without state interference,” the judges ruled in a 5-4 vote.

The grandparents appealed that ruling, and the Supreme Court agreed to hear Troxel vs. Granville, 99-138, on Wednesday.

If the high court sides with the parents and agrees with Washington state’s high court judges, the ruling could strike down grandparent visitation laws in all 50 states.

Arguing to preserve the laws, advocates for the grandparents say that they should be given a chance to seek visitations.

“This is not a guarantee or a blank check. It gives grandparents a right to have their day in court, a chance to prove why the children would be better off seeing them regularly,” says Rochelle Bobroff, a lawyer for AARP, formerly the American Assn. of Retired Persons.

The Troxels’ lawyer, Mark D. Olson of Seattle, also stresses the flexibility of the current laws. “You need to look to the specific situation. In this case, the father is deceased. Is it better to have the memory of their father preserved for the girls or to have it cut off entirely?”

Critics of grandparents’ rights say that the lawsuits split families and burden parents with costly litigation.

Kelly Wynn, the girls’ adoptive father, certainly agrees. “We have spent in excess of $50,000 defending ourselves, and the final bill is not in yet,” he says. “This has affected our lives every day since they [the Troxels] disagreed on what we thought was best for the girls.”

The U.S. Constitution says nothing about parents or families. The closest it comes is in the 14th Amendment’s command that states may not “deprive any person of liberty without due process of law.”

The reach of this phrase has been fiercely debated for decades, most famously in the Roe vs. Wade case of 1973. In that case, the liberal majority pointed to this provision and said that it implies a “right to privacy.” And on that basis, state laws barring abortion were struck down.

Led by Chief Justice William H. Rehnquist, the current court has been notably stingy about using the 14th Amendment to rein in state laws.

Picking up on that theme, lawyers for the grandparents are urging the court to take a hands-off approach in this area as well. Just as families are evolving, so is the law, they say.

Unlike abortion, parents’ right to raise their children is widely accepted. It is not well grounded in constitutional law, however.

In its decision siding with the parents, the Washington Supreme Court relied on snippets from high court rulings from the 1920s that interpreted the 14th Amendment. For example, the court in 1926 struck down an anti-Catholic law in Oregon that forbade parents from sending their children to parochial schools.

Today, the lawyers supporting the parents rely on those words and say they stand for the principle that the “micromanagement of family life” is unconstitutional.

“The right to raise one’s children without state interference is the most sacred and enduring of our personal liberties,” says Catherine W. Smith, the Seattle lawyer who represents Tommie and Kelly Wynn.

After Wednesday’s argument, the justices will vote privately and begin work on an opinion to be handed down by June.