High Court Limits Visitation Rights of Grandparents

Parents, not judges or grandparents, have the “fundamental right” to decide what is best for their children, the Supreme Court said Monday, as it struck down a broad Washington state law authorizing a judge to order that a child be turned over to her grandparents for weekend visits.

The 6-3 ruling casts some doubt on the court-ordered grandparent visitation laws in every state.

Over the last 20 years, grandparents have been given the right to sue and win visitation orders over the objections of a parent, often a divorced mother. The laws do not require the suing grandparents to prove a parent unfit or to show that they played a part in raising the child. Typically, judges are asked to decide whether visitation would be in the “best interest” of the child.

Although the high court stopped well short of declaring all these laws unconstitutional, it warned local judges that they must give “special weight” to the wishes of the parents.

The Constitution “does not permit a state to infringe on the fundamental rights of parents to make child-rearing decisions simply because a state judge believes a ‘better’ decision could be made,” Justice Sandra Day O’Connor said, speaking for the court.

Monday’s ruling upholding parental rights won praise across the political spectrum, from the American Civil Liberties Union and the Lambda Legal Defense Fund on the left to the Family Research Council and the American Center for Law and Justice on the right.

The decision was the court’s first on the issue of court-ordered grandparent visitation.

In practice, many judges are left to decide simply whether it would be in the “best interest” of a young child to spend an occasional weekend with grandparents.

Put that way, most judges say yes. In the Seattle-area case that reached the high court, a local judge sided with suing grandparents over a reluctant mother and said it is “normally in the best interest of the children to spend quality time with the grandparent.”

Rejecting that open-ended approach, O’Connor warned judges that they must tilt the scales in favor of parents.

“In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect,” she continued.

In the case of an intergenerational dispute, the decision as to what is best for the child “is for the parent to make in the first instance,” added O’Connor, a 70-year-old who has five grandchildren.

Ruling Doesn’t Nullify Other State Laws

Monday’s decision does not nullify the so-called grandparents-rights laws in California and other states. “We do not, and need not, define today the precise scope of the parental due process right,” O’Connor said.

But her opinion puts states on notice of the rights of parents in these cases. Grandparent visitation laws conflict with “the traditional presumption that a fit parent will act in the best interest of his or her child,” she said.

O’Connor’s plurality opinion was joined by Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer. Justice Clarence Thomas said that he would go further and bar states from “second-guessing a fit parent’s decision regarding visitation with third parties.” Justice David H. Souter agreed that Washington state’s law “sweeps too broadly and is unconstitutional.”

Legal experts on both sides of the issue said that grandparents who have cared for their grandchildren and acted as substitute parents should still be able to win visitation orders, even when a mother or a father strongly objects.

During the 1970s, the AARP cited such examples in arguing for the laws. In 1998, about 4 million children--or 5.6% of all children under age 18--were living in their grandparents’ homes, the court noted.

But these are not the only grandparents who sue. Others have gone to court after they were cut off from seeing their grandchildren because of a death, divorce, separation or simply ill will within a family. These suits, rather than bringing together extended families, have sometimes led to long, costly and bitter court battles.

The laws themselves are flawed, some experts say, because they do not make clear who should prevail when a parent objects.

Most of these laws follow a model set by AARP and they give judges broad leeway to order visitations.

California’s law, for example, says that a grandparent may seek “reasonable visitation rights” if a judge thinks it would be in the “best interest of the child.” If parents are married and living together, they can block a visitation request.

No state appellate court has defined what the law means and, in practice, most judges decide based on what they think is best for a child.

‘A Kind of Warning to Judges’

“Justice O’Connor has issued a kind of warning to judges. They need to be cautious about ordering visitation,” said Joan Hollinger, a family law expert at the UC Berkeley Law School.

Only in Georgia have lawmakers demanded that grandparents prove a child will suffer “harm” without visitation. A few state courts have said the same, but O’Connor said that she and her colleagues were not ready to set that as a national standard.

“Parents must be able to rear their children without state interference,” said Jay Sekulow, counsel for the Law and Justice Center, the legal arm of the Christian Coalition. Meanwhile, Steven Shapiro, the American Civil Liberties Union’s legal director, said that the decision will shield single mothers and low-income families who cannot afford to fight such lawsuits.

For its part, AARP said that it was “gratified the Supreme Court has proceeded cautiously.”

“The door is still open for grandparents to go to court to seek visitation. The outcome will depend on the facts,” said AARP’s counsel, Rochelle Bobroff.

The Washington state case that was decided Monday began in 1993 soon after Brad Troxel, the unmarried father of two young girls, committed suicide.

Six months later, his parents, Jenifer and Gary Troxel, sued the girls’ mother, Tommie Granville. They wanted to take the girls for overnight visits every other weekend and for two weeks in the summer.

The mother refused, although she agreed that the grandparents could have the girls one day each month.

After hearing both sides, the judge described the grandparents as having a “large, loving family,” and said that the girls would “benefit from spending quality time” with them. He ordered the visits for one weekend each month and one week during the summer.

The mother and her new husband appealed and won the case (Troxel vs. Granville, 99-138), first in the state Supreme Court and again on Monday.

Although the high court agreed on the outcome, the six justices in the majority wrote three opinions.

The three dissenters were divided too. Justice Antonin Scalia said he agreed as a personal matter that the parents’ rights should prevail but said that nothing in “the Constitution confers upon me as a judge” the power to strike down the state’s law.

Justice Anthony M. Kennedy said he agreed that a “custodial parent has a constitutional right to determine without undue interference by the state how best to raise, nurture and educate the child.” But he urged caution and opposed giving parents an “absolute veto” over visitation orders.

Only Justice John Paul Stevens squarely took the side of the grandparents. The rights of a parent “have never been regarded as absolute. Even a fit parent is capable of treating a child like a mere possession,” he said.

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