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Wednesday, Jun. 28, 2000

The Bible tells of two women who ask King Solomon to resolve a controversy about the maternity of an infant. Each claims to be the child's mother. The King of Israel, lacking access to modern genetic testing, proposes to cut the baby in two with a sword and give each woman half. One woman accepts this proposal. The other begs Solomon to give her baby away rather than take its life. Upon hearing her cries, the wise king determines that she is the actual mother of the child. This ruling may be the first recorded family court judgment.

Today we have the technology to resolve simple controversies like the one before King Solomon. The complexity of the disputes currently clogging family courts, however, would have given even Solomon an Excedrin headache. On June 5 of this year, the United States Supreme Court handed down a decision that should provide some relief for our congested family courts. In Troxel v. Granville, the Court invalidated a Washington state statute under which any third party could sue a child's parents for court-ordered visitation upon a showing that such visitation would serve the child's "best interests." The Supreme Court upheld the Washington Supreme Court's decision that the statute was so broad that it violated a parent's fundamental right to make decisions about the rearing of her children.

Interest groups promoting the views of grandparents and of some gay and lesbian families urged the Court to uphold the statute. The former took the view that grandparents play a very important role in a child's life, sometimes even acting as a de facto parent. Grandparents, according to this argument, should not have to submit to the whims of parents who arbitrarily decide to limit or cut off all contact. Some gay and lesbian advocates urged that an inflexible rule granting biological parents the unfettered right to rear their child could threaten alternative family arrangements in which only one member of a two-adult household is the child's parent but both play parental roles in her life. Under their view, if such a couple splits up, the non-parent should be able to petition for visitation.

A superficial look at the result in Troxel might suggest a gloomy future for the proponents of each of these two arguments. A closer analysis, however, suggests that they may well take heart in the Court's decision. In the wake of Troxel, a grandparent who lives with a child and acts essentially as a third (or second) parent may still seek visitation if a breakup, death or other event changes the existing arrangement. The same is true for the gay member of a household who cares for her partner's biological child for a substantial period of time.

What the Troxel decision does curtail is the ability of individuals whose relationship with a child is limited to take a parent to court to force visitation (or, as in Troxel itself, to force more frequent visitation than the custodial parent desires). Under the Washington State law invalidated by the Court, an individual could have won visitation by simply persuading a judge that the child would benefit from such contact. The fact that the parent had chosen to limit or avoid visitation would have received no deference from the judge.

Consider an example of what the Washington visitation statute -- if upheld -- could have wrought. A Washington schoolteacher who took a special liking to one of her first-grade students could have gone to court to petition for visitation with the child following a decision by his parents to move him from a her school to a local private school. She might have ultimately lost, but the child's parents would have had to pay a lawyer to protect their very right to decide who may spend time with their child. More alarming, the teacher might have prevailed at trial, if, for example, she could show that if she did not pick the child up and visit with him after school, he would just be watching television at home with his friends.

But what about grandparents? Aren't they more entitled to continued contact with a child than a mere schoolteacher? Not necessarily. A genetic connection alone cannot be decisive. If it were, aunts, uncles and cousins could also ask a judge to second-guess a parent's decisions about who could visit with her child. Such a regime would result in chaos and, in the worst case scenario, would permit family members to hold a parent hostage to their desires by threatening to sue for more visitation. By overturning a judge's order of visitation for the grandparents in Troxel, the Supreme Court rejected the notion that a blood relative is necessarily entitled to spend time with a child over a parent's wishes.

Still, the grandparent who takes a child into his home when one or both parents are in need and who participates in rearing that child, has little to fear from the decision in Troxel. Visitation with an adult whom psychologists have called a "psychological parent" serves more than just the child's abstract "best interests." Indeed, it might be essential to the child's emotional well-being. The Washington statute was flawed because it did not require a showing that visitation with a non-parent is necessary for the child's emotional well-being, but instead permitted court-ordered visitation at the proverbial drop of a hat. Arguably, any non-parent's willingness to threaten the stability of a household by suing for visitation without some strong showing of need should itself be disqualifying. Perhaps this represents a less dramatic version of the story of Solomon and the two women.

What of the gay couple? They also have nothing to fear from the Troxel holding. Say the couple lives together in a home in which one member is a biological parent and the other takes care of the child as a second parent would do. If the couple breaks up, does the Supreme Court's decision in Troxel mean the biological parent may completely exclude her former partner from the child's life? No. Indeed, the fact that the Court did not privilege grandparents by virtue of their status only helps the gay litigant. It indicates that traditional "family values" will not dispose of a case in which a non-parent seeks visitation. Perhaps this is one reason that Justice Scalia, a strong supporter of conservative family values, dissented from the decision. After Troxel, the case-by-case reality of the child's life and relationships will determine whether a non-parent makes a sufficiently compelling case to override a parent's decision. The Court further evidenced its respect for nontraditional households when it refused to lightly override the wishes of a mother who bore her daughters out of wedlock. As Justice O'Connor acknowledged with sensitivity, "[t]he demographic changes of the past century make it difficult to speak of an average American family."

The Court in Troxel v. Granville thus demonstrated as much respect for contemporary reality as it did for the nuclear family. To be a parent is to take on enormous responsibility for deciding what is best for one's child. It involves facing the certain knowledge that sometimes one's decisions will have been wrong. When they embark on that most serious endeavor, it is critical for parents that no one be given an automatic right to ask a court to second-guess their decisions, not even a grandparent. The reality of responsible parenthood carries with it the privilege of having one's decisions be final in most circumstances. Nothing about the Court's decision in Troxel, however, prevents people who have shared the role of custodial parent from asking a judge to give that reality the weight it deserves as well.

Sherry Colb is a Professor of Law at Rutgers School of Law in Newark.

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