THE AFTERMATH OF TROXEL v. GRANVILLE
© 2000 National Legal Research Group, Inc.
On June 5, 2000, the United States Supreme Court decided the case of Troxel v. Granville, 68 U.S.L.W. 4458, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). See Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101 (June 2000). In Troxel, the Court invalidated Washington State's visitation statute as an unconstitutional intrusion into a parent's fundamental liberty interest in raising a child as the parent sees fit.
As noted in our previous article, the problem addressed by the plurality opinion was that the statute was "breathtakingly broad," granting any third party standing to assert visitation rights at any time, with the decision on whether to grant that visitation request in the hands of a judge whose only standard was the best interests of the child. Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101, 105 (June 2000).
Although Troxel was not handed down by our United States Supreme Court until this year, the fundamental rights of parents, to the exclusion of others, have long been recognized through the Due Process Clause of the Fourteenth Amendment. Troxel more clearly and more definitively sets forth those "liberty" interests afforded parents through that Amendment. According to Troxel:
The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, "guarantees more than fair process." Washington v. Glucksberg, 521 U.S. 702, 719, 117 S. Ct. 2258 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id. at 720, 117 S. Ct. 2258; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993).
Troxel v. Granville, 120 S. Ct. at 2059-60.
Parental rights, however, are not absolute. These same Supreme Court cases also acknowledge the states' strong parens patriae interest in the welfare of children and in the structure and stability of the family. See, e.g., Santosky v. Kramer, 455 U.S. 745, 766 (1982); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944). Thus, the states still retain "a wide range of power for limiting parental freedom and authority in things affecting [a] child's welfare" and also in regard to "regulation in the public interest." Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972) (recognizing that parent's power may be subject to limitation if court determines that parental decision has potential for significant social burden). By way of example, compulsory schooling for children under sixteen, child labor laws, and mental health commitment procedures for minors have been upheld as permissible state regulations even when they conflict with parental decisionmaking. Wisconsin v. Yoder, 406 U.S. 205, 228 (1972) (state's power to compel school attendance up to certain age, make reasonable regulations for all schools, and prescribe curriculum for public schools is undiminished by parents' conflicting preferences regarding child's education); Prince v. Massachusetts, 321 U.S. 158, 168-69 (1944) (requiring all persons, including guardians, to comply with child labor laws).
Indeed, as noted in our previous article,
[t]he problem addressed by the plurality was not that Washington State had a statute allowing third-party visitation in particular circumstances under which it could be ordered for those in which it was particularly appropriate.
Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101, 105 (June 2000) (emphasis added). Indeed, the Supreme Court specifically left open the possibility and probability that an appropriate statute granting third parties visitation could withstand constitutional scrutiny.
Although many scholars have opined that Troxel would do little to change third-party visitation law, the state courts have not had the same opinion. A number of cases have been decided since Troxel that strike down third-party visitation statutes where similar challenges had previously failed.
In Brice v. Brice, No. 1987 September Term, 1999 (Md. Ct. Spec. App. July 5, 2000), Maryland's interim appellate court held that the application of Md. Code Ann., Fam. Law 9-102 unconstitutionally violated a mother's due process rights.
In that case, Kayla Brice was born on January 8, 1997, the only child of Lisa and James Brice. James died in an automobile accident on October 2, 1997. Shortly after James's death, Susan Brice, James's mother, was on psychiatric leave from her employment and asked Lisa if she could provide daycare for Kayla, which Lisa declined. On December 9, 1997, the Brices filed a Complaint to Establish Grandparent Visitation Rights, alleging that Lisa had denied them visitation with Kayla since James's death. Lisa's Answer to the Complaint denied that she had refused the Brices visitation with Kayla and stated that she had continually encouraged reasonable and appropriate visitation by the Brices with their granddaughter.
The Maryland court found the facts in the case "strikingly similar" to those in Troxel. As in Troxel, the Brices did not allege, and no court has found, that Lisa was an unfit parent. In addition, as in Troxel, Lisa did not oppose or deny visitation and conceded that it was in Kayla's best interest to have contact with the Brices. Instead, Lisa merely wished to set visitation on her own terms, without the interference of a judge under a "best interests of the child" standard. And on that point, the court agreed and held the Maryland third-party visitation statute unconstitutional as applied.
In G.P.C. v. Cabral, No. ED76060 (Mo. Ct. App. E.D. Aug. 8, 2000), the result was much different. In this case, the parents asserted that Missouri's grandparent visitation statute, Mo. Rev. Stat. 452.402.2 (Cum. Supp. 1998), infringed upon their fundamental liberty interests as protected by the United States Constitution. (The parents also claimed that the trial court had erred in failing to find that the grandparents' visitation would endanger the child physically and emotionally and that the trial court had abused its discretion by quashing their notices of deposition of expert witnesses.) Here, the court refused to find any constitutional infirmity.
In this case, the child was born on November 5, 1997. Although the grandparents had visits with the child during the first six months of her life, the parents then denied the grandparents contact with the child after the grandfather terminated the father's employment.
The court first noted that the wording of the Washington statute was much different from that of the Missouri statute in that Missouri's statute provides much greater protection of parents' decisions than does the Washington statute. Under the Missouri statute, the denial must both be unreasonable and have continued for at least 90 days before grandparents may file an action seeking visitation. Under the Washington statute, any person can petition for visitation rights at any time. Consequently, Missouri's statute does not create the potential of subjecting the parents' every decision to review at the behest of endless third parties, as in Troxel.
While the Maryland court found its statute unconstitutional as applied and the Missouri court found no constitutional infirmity at all, in Illinois, the state's highest court struck down the third-party visitation statute, 750 ILCS 5/607, altogether in Lulay v. Lulay, Nos. 87874, 87896 cons. (Ill. Oct. 26, 2000).
In this case, the husband and wife were divorced in 1996, and both were granted joint custody of their three minor children. On November 30, 1998, the father's mother, Gail Lulay, filed a petition seeking visitation with her grandchildren.
The court noted that the Illinois statute, unlike the Washington statute, requires that the parents be not currently cohabitating on a permanent basis. But the Illinois court did not find this to be a saving grace:
The statute makes no exception for a situation where a parent who opposes the visitation is the child of the petitioning grandparent. Thus, the fact that Michael Lulay, Gail's son and the father of the minor children, opposes the visitation does not alter Gail's ability under section 607(b)(1) to petition for visitation. There is simply no language in the statute to support such an interpretation.
Because the statute fails to include such language, the effect of the statute is to impermissibly intrude upon a parent's fundamental constitutional rights:
Because we have determined that the plain language of section 607(b)(1) permits a grandparent to file a petition for visitation where the grandparent's own child objects to the visitation, we must now address whether section 607(b)(1), as so interpreted and thus applied to this case, where both parents oppose visitation, is constitutional. The answer is no. We hold that section 607(b)(1), as applied to this case, is an unconstitutional infringement on Michael and Kiley Lulay's fundamental liberty interest in raising their children.
As more and more state courts are confronted with constitutional challenges to third-party visitation statutes, it is a sure bet that more will be held unconstitutional in light of Troxel, despite the academics' view to the contrary.
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