CAN THE FIFTY STATES' GRANDPARENT VISITATION STATUTES SURVIVE IN THE WAKE OF THE SUPREME COURT'S DECISION IN TROXEL V. GRANVILLE?

All fifty states have statutes granting grandparents, and sometimes other third parties, the right to petition a court for visitation with children - even when the parents object. These statutes vary in scope and method. But they all contemplate that in some circumstances, a court may override a parent's decision about with whom their children may have relationships. The statutes are controversial, for they pit the fundamental right of parents to make decisions about their children's lives against the often sympathetic plight of grandparents denied access to their grandchildren.

In 2000, the Supreme Court opined on the constitutionality of the state of Washington's third-party visitation statute, in the case of Troxel v. Granville. There, the Court declared Washington's "breathtakingly broad" statute unconstitutional, but stopped short of invalidating all such statutes.

Since then, courts in every state have been struggling to test their own statutes against the reasoning of Troxel to see whether they, like Washington's statute, must be struck down. Recent New York cases illustrate the states' difficulty in applying Troxel.

The American System of Parental Rights

Plato's Republic expounded a state-centered theory of parenting whereby children would be removed from their parents at birth, and the state would raise them. In contrast, some ancient cultures, like those of the Romans and Babylonians, followed a laissez-faire model of parenting, under which fathers, in varying degrees, had the legal authority to buy, sell, trade, and even kill their children, more or less at will

American family law is premised in a so-called triangular model of parenting - which is a compromise between these two extremes. The three points in the triangle are parent, child, and state. However, the three are not co-equal.

Instead, parents are given vast deference to make decisions about all aspects of childrearing, including education, religion, health care, discipline, as well as mundane day-to-day activities. (Even children themselves almost never win when they challenge parental authority in court.)

The state, in contrast, plays a sharply limited role. It can only override parental decisions when they place a child's health or wellbeing in jeopardy. The child abuse and neglect system presents an extreme example. Through this system, the state has the authority to remove children from their parents' care entirely - but only if there is proper evidence that the children have been harmed or are in danger.

Constitutional Protection for Parental Rights

The primacy of parents' rights to make decisions about their children is protected by the Due Process Clause of the Constitution. Parents have a fundamental liberty interest, which gives them the right to establish a home, raise children, and control their education and upbringing. As long as parents are "fit," the state has no reason to interfere with the exercise of this interest.

While the hope is that parents will do their best to raise good and moral citizens, it is up to them to decide how the children shall be reared. This constitutional right has led courts to indulge a presumption that fit parents make decisions that are in the best interests of their children. As a result, parents have won battles with the state over home-schooling, religious isolation, and the withholding of medical care for a non-life threatening condition - all of which are permitted when parents choose them for their children.

The Supreme Court's Reasoning in Troxel v. Granville

The Washington statute at issue in Troxel permitted "any person" to seek visitation at "any time," and permitted courts to grant such requests whenever "visitation may serve the best interest of the child." In so doing, the Supreme Court found, the statute improperly and directly contravened the constitutionally-based presumption that a fit parent acts in the best interests of his or her child. The Court resisted the efforts of some dissenters, however, to require a compelling interest to overcome a parental refusal of visitation.

In criticizing the Washington statute, the Court nodded approvingly in the direction of several state statutes - including those of California, Maine, Minnesota, Nebraska, Rhode Island, and Utah - that, unlike Washington's, did give effect to that presumption.

These statutes presumed that if a fit parent had denied grandparent visitation, it would be against the child's best interests. Accordingly, the statutes allowed for the parents' decision against visitation to overcome only by proof either that the child would be harmed without grandparent visitation, or that grandparent visitation would not interfere with the parent-child relationship.

Grandparent Visitation in New York and Other States Outside Troxel's Ruling

But what about the other forty-three states - whose statutes were neither struck down like Washington's, nor noted with approval by the Court in this list? These states were left to wonder whether their grandparent visitation statutes were vulnerable to attack.

New York is one such state, and the courts have been busy answering that question. In 1966, New York enacted its first such statute, which allowed for grandparents to secure visitation only after their own child--the parent of the grandchild--had died. But ten years later, the New York legislature amended the statute to provide greater rights for grandparents with respect to visitation.

Under the 1975 (and current) provision, grandparents have standing to petition for visitation if either the parents of a minor child are deceased, or equity would see fit to intervene. (In modern law, a reference to "equity" stands, roughly, for justice and fairness. Thus, the statute suggests that a court can intervene to allow grandparents' standing to seek visitation when it is right to do so - a vague standard at best.)

When might equity "see fit to intervene" to allow standing? As interpreted by New York courts, the decision would depend on factors such as the strength of the family, the nature of the parent's objection to visitation, and the strength of the grandparent-grandchild relationship (or the efforts to establish one).

Once standing is established, the court must still determine whether ordering visitation is in the best interests of the child. That determination is supposed to be based on the totality of the circumstances, but it often overlaps considerably with the standing question.

According to New York Courts, of paramount importance in the application of the "best interests of the child" standard is the nature of the relationship the grandchild has with her grandparent(s), and the question whether losing it would be detrimental to the child. Animosity between parent and grandparent is not, in itself, supposed to be sufficient evidence to overcome a finding that visitation would be in the best interests of the child. However, such animosity is often persuasive to a court, indicating it might be best for visitation to be denied.

The Constitutionality of the New York Statute

Since Troxel, several New York courts have issued opinions about the constitutionality of the New York statute--one of which, Hertz v. Hertz, was just released last month. The results have been split. However, while trial courts have invalidated the statute, the intermediate appellate courts that issued both Hertz and an earlier decision have both found the statute constitutional.

On first glance, the New York statute seems vulnerable to a constitutional challenge based upon Troxel's analysis. That is because the statute does not follow the statutory routes the Supreme Court approved as ways a state can properly privilege parents' rights over third-parties' claims. The New York statute does not, for instance, create a presumption that a parent's decision to deny visitation is in the best interests of the child.

On the other hand, while the statute does not expressly require deference to the parent's decision to deny visitation, the way it has been interpreted, through the factors mentioned above, it does effectively result in some such deference. It might thus do what Troxel suggested by giving "some special weight" to parental refusals of visitation.

For this reason, Hertz v. Hertz held the New York statute to be valid despite the Supreme Court's decision in Troxel. A previous appellate panel, in Morgan v. Grzesik, held likewise. That court emphasized that the standing requirement operates as significant protection for the parents' right to refuse visitation.

The Future of Grandparents' Rights

The litigation in New York is illustrative of what is going on around the country. Litigants are petitioning for rehearings to consider the impact of Troxel; courts are reconsidering the validity of their own states' statutes; and family members with acrimonious relationships are living in a state of uncertainty.

In the end, many of the grandparent visitation statutes will survive, especially those that provide rights only to grandparents rather than third parties generally. But some will first have to be amended (and some already have been), in order to cure obvious defects that put them in tension with Troxel's insistence that the Constitutional itself requires significant deference to parental choices.

The question whether grandparents should be able to insist on visitation over the objections of their children has been hard-fought on both sides. The mere fact that every state has a statute providing such rights is a tribute to the strength of the grandparent lobby. And the idea that children should have relationships with their grandparents is certainly an appealing one.

But forces defending the near absolute freedom of parents to choose how to raise their children are powerful as well. And this insistence on parental primacy has been important to families with nontraditional structure, or with beliefs in fending off intrusions from outsiders trying to superimpose majoritarian norms. In the end, perhaps the Supreme Court struck the right balance--requiring parents' rights to be thought of first, but leaving room for them to be overridden in specific cases.