Justices Weigh Visiting Rights of Grandparents

It looked to be a friendly forum.

Six of the nine Supreme Court justices are grandparents, and another, Clarence Thomas, was raised by his grandparents in Georgia.

Yet the concept of “grandparents’ rights” seemed to have little or no support Wednesday when the issue came before the high court for the first time.

Instead, during oral arguments in a Washington state case, the justices took turns expressing amazement that a state judge can take a child away from a good parent and instead give her to her grandparents for a weekend visit.

Justice Sandra Day O’Connor called it “breathtaking.” It is “also very expensive for parents” who are sued and have to hire lawyers to defend themselves, she said.

As usual, Justice Antonin Scalia put the issue most bluntly. Where do courts get the power to intervene in the affairs of good families? “The child does not belong to the courts. The child belongs to the parents,” he said.

At issue are laws in all 50 states that give grandparents and others the right to go to court to seek visitation orders. The laws were enacted during the 1970s and 1980s to give grandparents legal rights to intervene and to preserve their relationship with their grandchildren.

But recently, the laws have come under attack from parents who object to the legal battles and court orders.

In the case before the court, the grandparents, Jenifer and Gary Troxel, sued to obtain scheduled overnight visits with their granddaughters every other weekend.

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.

The mother, now Tommie Granville Wynn, objected, noting that she was raising eight children in a new, blended family. She favored letting the grandparents visit one day per month but opposed twice-monthly overnight visits. Both families live just north of Seattle.

A state judge ruled for the grandparents and ordered the visits. They would be “in the best interest” of the girls, the judge ruled in December 1994.

On Wednesday, a lawyer for the mother urged the Supreme Court to strike down this order and to restore the rights of parents.

“This order violated the mother’s rights,” said Seattle attorney Catherine W. Smith. “I’m not aware of another intrusion like this, where a court independently substitutes its judgment for what is best for the child.”

She stressed that Wynn is a fit mother. No one suggested that her girls were mistreated in any way. And unlike some grandparents, the Troxels had never raised the girls in their home, Smith added.

In such circumstances, “parents have the right and the obligation to make day-to-day decisions for their child” without interference from the courts, Smith said.

Only Justice John Paul Stevens objected. He questioned whether a mother should have “an absolute veto” over a grandparent’s request for visitation.

The stakes are high, he added. If the high court rules that the rights of parents prevail, the decision will knock down laws in 48 states, including California.

Only two states, Washington and Georgia, make it hard for grandparents to win visitation orders. In those states, the supreme courts announced that judges cannot order visitations for grandparents unless there will be “harm” to the child otherwise.

It is not clear what this means. In some instances, the “harm” could be bad behavior by the parents, such as a mother using drugs. In other cases, it may mean the grandchild has developed a close relationship with the grandparents and the grandchild would be harmed if this relationship were ended.

Mark D. Olson, the Seattle lawyer representing the grandparents, opposed the use of the “harm” standard. Instead, he urged the justices to uphold the state law and to allow visitation orders when judges conclude it is in “the best interest” of the child.

“Do you think anyone coming in off the street can get a court order based on the best interest of the child, as against the rights of the parent?” asked Justice David H. Souter. Chief Justice William H. Rehnquist appeared to agree, commenting that past rulings have said that “it is up to the parents to decide these things.” He added, however: “You don’t lightly strike down all these state statutes.”

The justices will meet privately Friday to discuss the case (Troxel vs. Granville, 99-138) and to cast their votes, either to uphold the state law or to reject it.

It sounded Wednesday as though a solid majority would side with the parents and oppose the state law.

A narrow ruling could strike down the Washington state law alone. A broad ruling giving parents the right to control their children would strike nearly all the state laws on grandparents’ rights.

A decision is not be expected to be announced for several months.

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