Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional

In 2000, the Supreme Court handed down an important family law opinion, Troxel v. Granville. There, it held the State of Washington state's third-party visitation law unconstitutional as applied to the case before the Court. (I wrote at length about the case in a prior column.)

At the time, many predicted the demise of parallel laws in other states. But now, six years later, more state statutes have withstood challenge than have not, and courts are once again facing claims that grandparents have a right to seek visitation with a grandchild, even over the objection of the grandchild's parents.

Indeed, recently the highest courts of Pennsylvania and Utah upheld their states' laws with respect to grandparent visitation against a constitutional challenge based on Troxel.

In this column, I'll explore why Troxel did not have the effect many predicted, and why the Pennsylvania and Utah courts reached the results that they did.

The Statute at Issue in Troxelv. Granville: "Breathtakingly Broad"

One reason that Troxel may not have had the effect predicted is that the statute at issue there was, as Justice O'Connor wrote on behalf of a Court plurality, "breathtakingly broad." The statute was not limited to relatives: Instead, it literally permitted "any person" at "any time" to petition for visitation with a child. Moreover, it permitted courts to grant such petitions over parental objection as long as it was in the best interests of the child. Finally, it did so with respect to any parents - not just those where one parent had died or been declared unfit or where the parents had divorced. All parents -- even perfectly fit (and, indeed, excellent parents) -- came within the statute's reach.

So theoretically, if, for instance, a teacher or therapist petitioned to be allowed to visit a favorite student outside of school or therapy hours, then a court could give the teacher that right even if parents vociferously objected, if the court deemed the visits in the child's best interests.

And that wasn't all. The statute in every way favored third parties and ignored parents' rights. It did not presume parents to act in the best interests of their own children. It did not otherwise elevate parents' rights with respect to their children over those of third parties. And it did not, for instance, require a showing that a child would be harmed by the lack of the third-party visitation. The statute basically treated children like, for instance, public parks to which various groups had an equal right to seek access; parents were seen as equal petitioners, not special caretakers.

No wonder, then, that the Court - which took notice of a long line of precedent, based in the constitutional doctrine of substantive due process, allowing parents to make decisions on their children's behalf - did not look at all kindly on the statute.

In essence, what Troxel did was to make clear that this extreme statute could not stand, and that the reason it could not, was that parents had the constitutional right to make decisions on their children's behalf. The Court's plurality did not precisely define the scope of the parental due process rights it was invoking, but, instead, left that to states to consider with respect to their own laws. In particular, it made clear that parental decisions had to be given "special weight."

Thus, the fate of less extreme statutes - in particular, statutes that allowed grandparent visitation over parents' objection -- ended up being less obvious than some Court observers thought.

Why Troxel Did Not Lead to the Widespread Invalidation of Visitation Laws

Grandparent visitation laws are commonplace - indeed, all 50 states have them. Moreover, the Supreme Court, though doubtless aware that its decision in Troxel could be read to affect these statutes, did not suggest that they were all constitutionally problematic.

Nevertheless, "Troxel challenges" quickly ensued across the country -- as parents who were opposed to their children having visitation with grandparents or other third parties began to add constitutional challenges to their set of tactics.

The results from many of these cases are in: Though Troxel has done much to create uncertainty about the viability of grandparent visitation statutes, it has done little, in the end, to bring about their demise.

The Troxel opinion did draw some lines that apply in the context of grandparent vistitation. For example, it required at least some deference to the parent's decision not to permit visitation with the third party.

In addition, Troxel left some questions open. For example, the question remains whether a statute must require a showing of harm to the child in the absence of a particular third-party's visitation, as a prerequisite for overriding a fit parent's decision not to permit visitation.

The National Landscape: Many Visitation Statutes Remain Intact

Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.

Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.

However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.

The Pennsylvania Supreme Court's Decision Upholding Grandparent Visitation

The Pennsylvania Supreme Court ruled, in Hiller v. Fausey, that a state law permitting grandparent visitation over the objection of the child's sole living parent was constitutional -- even without any showing that denying grandparent visitation would cause harm to the child.

The child in Hiller had lived with his parents prior to his mother's death from cancer. During his mother's illness, he had had almost daily contact with his maternal grandmother, who performed many basic caretaking tasks for him. After the mother's death, however, the child's father refused to permit contact between the child and his grandmother. She filed for partial custody under a Pennsylvania law -- section 5311 of title 23 of the Pennsylvania Consolidated Statutes -- that permits parents of a deceased parent to seek partial custody or visitation of their grandchild if it "would be in the best in interest of the child and would not interfere with the parent-child relationship."

In considering the constitutionality of this law, the court applied strict scrutiny, the level of review dictated by the fundamental nature of the parental due process rights infringed by third-party visitation over the parent's objection. To survive such review, the law must pass a two-pronged inquiry: The court must find both that the law is justified by a compelling state interest, and that the law is narrowly tailored to effectuate it.

In Hiller, the court concluded that the state's interest in protecting the health and welfare of children, which also justifies its intervention to terminate parental rights or award custody to non-parents in appropriate cases, was sufficient to justify this law as well.

In addition, moving on to the second prong of the inquiry, because the statute had built-in limiting factors, the court found it to be narrowly tailored as well: It applied only to grandparents whose own child has died. It expressly stated that the visitation must not interfere with the surviving parent's relationship with the child. And it directed courts to consider the amount of pre-petition contact between grandparent and grandchild. (This law, then, was a far cry from the "breathtakingly broad" law at issue in Troxel.) The court thus upheld the law even though it did not require that the lack of visitation would cause harm to the child.

The Utah Supreme Court's Decision Upholding Grandparent Visitation

The Utah Supreme Court ruled similarly in Uzelacv. Thurgood, another case in which a father denied visitation with maternal grandparents after the mother's death.

In that case, the parents had divorced prior to the mother's death, and the child and her mother had lived with the mother's parents for a number of years after the divorce. The Utah law at issue incorporates a presumption that "a parent's decision with regard to grandparent visitation is in the grandchild's best interests."

Thus, the lower court had had to hold that this presumption, applied with respect to the child's father, had been rebutted by the evidence. And that holding was specifically guided by law: The Utah statute enumerates specific factors that are to guide the court's determination of whether the presumption has been rebutted.

Moreover, the Utah Supreme Court added another safeguard against intrusion into parental rights by requiring the presumption to be rebutted by clear and convincing evidence, a burden of proof higher than the one ordinarily used in civil cases. With all these safeguards, the Utah court had no trouble finding the statute sufficiently narrowly-tailored to survive constitutional review.

This sort of deference to the parent's decision is arguably what the Troxel court had in mind - and what it found lacking in the Washington statute -- when it considered conflicts between grandparents and parents with respect to visitation.

A Number of Factors Have Emerged as Likely to Control Post-Troxel Decisions

In a 2005 column, I wrote that the emerging set of post-Troxel cases had converged on a common set of factors to consider when evaluating the constitutionality of a third-party visitation statute. This remains true even when more recent decisions are added to the mix.

Here are some of the factors that make a statute likely to survive: If it sensibly narrows the class of parties with standing to sue; if it permits third-party requests only when the family is not intact because of death or divorce; and if it expressly creates a presumption in favor of the parent's wishes.

These factors were crucial to these two newest decisions from Pennsylvania and Utah. Future cases are likely to rely on them as well, as state supreme courts navigate the post-Troxelworld, trying to uphold the Supreme Court's mandate that parental preference, at a minimum, be given "special weight."