DECIDING HOW TO DIVIDE CHILDREN'S TIME

By DAHLIA LITHWICK


[Illustration]
Sure you can visit grandma . . . in 2002

Much of the commentary about Troxel v. Granville -- the so-called grandparents' rights case decided in the Supreme Court earlier this month -- has focused on what the modern "family" means, both practically and as a matter of constitutional law. This question has become more difficult as non-traditional households boom, and two-parent-heterosexual-stain-removing-mom households decline.

In the 1950s, grandparents who sought visitation would have been looked upon as odd -- perhaps even a bit tetched. Now, however, it's common for non-parents to seek visitation and even custody. (Indeed, under the First Lady's theory, even an entire village might have the right to visitation.)

This sea change is partly due to the expansion of our definition of family. Which is why the holding in Troxel -- that grandparents cannot visit their grandchildren over their mother's objection -- has had national resonance. But it's not the only reason. Troxel was not just about redefining family. It was also about our society's increasing obsession with time, and our lack of it. As time with children becomes more rare and more precious, it's no surprise that adults have started battling over it -- and taking their fights all the way to the Supreme Court.

Splitting the Baby's Time

At its heart, Troxel was a fight over a unique commodity: children's time. The precise amount of time at issue was 1200 hours per year -- the difference between the amount of visitation the girls' paternal grandparents sought, and the amount their mother was willing to permit.

Before the Troxel girls' father died, their grandparents had frequent visits. They were exceedingly close to the girls. Afterwards, they wanted to continue the pattern, with twice-monthly weekend visits and summer visits (the typical non-custodial parent package Mr. Troxel might have received, had he lived). However, the girls' mother, now involved with another man, sought to limit the grandparents' visitation, instead, to one visit per month and participation in family holidays.

Was the mother's position unreasonable? Not necessarily, because splitting children's time is not as simple as it might initially seem. As family court judges across the country take on this task, many have started to wonder whether the physicists splitting the atom had an easier job.

First, because, ironically, splitting children's time often means doubling it. After a divorce, children often celebrate two birthdays and two Thanksgivings. They may take on a double schedule of extracurricular activities: pottery class on mom's time, soccer on dad's. Then, as parents swap weekends, kids often suffer. Lulu misses every third swim meet; Benny gets turfed off the t-ball team for missed practices. And often hours of a child's time are consumed in transit between two homes. No wonder so many children of divorce are constantly exhausted.

Children's Time, Parents' Rights

-- are exhausted too. And when they have precious "quality time" with their children, they don't want to share it. For a contemporary working mother, weekends and summer vacations are the only time she can see her kids -- and she may reasonably resent others' attempts to encroach on that time. A 1950s stay-at-home mom might have loved to dump the kids with grandma for a few weekends, or even all of July; she had the whole rest of the year with them. The Washington State trial court judge in Troxel -- who hearkened back to fond memories of visiting his own grandparents in awarding grandparental visitation rights -- may have had that kind of mom. But most parents today don't see enough of their kids to be able happily to part with them during summer vacation. No wonder they fight to see them.

In his dissent in Troxel, Justice Stevens criticized the majority for treating the grandchildren as "chattel." His metaphor aptly conveys the way custody and visitation fights seem to involve pushing and pulling at children's bodies, without true consideration of their interests -- as if they were merely calves to be moved from pasture to pasture. But in important respects, the metaphor is wrong.

The "chattel" metaphor suggests that relatives seeking visitation seek property rights over the children's actual bodies. But Troxel was not a Solomonic fight over whether to split a child's body in two. It was a fight over children's time or, more subtly, about who has the right to allocate that time.

Recall that, even before the grandparents' petition was filed in Troxel, the girls' mother was willing to allow them to visit with the girls -- just not as frequently as they would have liked. When she won the case, she didn't win the right to a ration of child; she won the right to decide who her children saw, and when. That right, according to the majority, is not necessarily a right to her children, but to their "care and control." And perhaps "care and control" means little more than "decisions about their time."

For parents not to have such a right in contemporary society would only cause children more misery. Until a child is old enough to do it for himself, he requires a custodian who will monitor the ebb and flow of his hours and days. Otherwise, they will snap, and not under the pressure of love, but rather, under the pressure of time.

Dahlia Lithwick, a Senior Editor at Writ, covers the Supreme Court for Slate.

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