Court limits visitation by grandparents

Parents have right to decide WASHINGTON - Struggling with the complexities of modern family life, a fractured Supreme Court said Monday that parents have the right to veto

Tuesday, June 6th 2000, 12:00 am

By: News On 6

Parents have right to decide

WASHINGTON - Struggling with the complexities of modern family life, a fractured Supreme Court said Monday that parents have the right to veto their children's visitors - including grandparents.

The justices struck down a Washington state law that allowed anyone to seek visitation rights, although they had trouble deciding how to apply the decision to grandparents nationwide.

The court refused to grant grandparents special status. But the ruling still allows grandparents to seek visitation rights under more narrow laws available in all 50 states.

"It's a win for parental rights, that's for sure," said David L. Hudson Jr., an attorney with the First Amendment Center at Vanderbilt University. "It's not going to sound the death knell for other grandparent-visitation statutes."

The dispute between a Washington mother and the parents of her deceased ex-boyfriend generated six opinions from the nine-member court. No single opinion garnered a majority, though six justices generally agreed on the principle of parents' rights.

"We have recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children," Justice Sandra Day O'Connor wrote for the 6-3 majority.

Among the dissenters, Justice Anthony Kennedy warned his colleagues against a sweeping ruling. He cited the unusually broad nature of the Washington law in question as well as the ever-changing definition of family.

"We owe it to the Nation's domestic relations legal structure ... to proceed with caution," Justice Kennedy wrote. analysts said the court did just that, forging a narrow ruling that sticks up for parental rights but does not completely wipe out grandparents' rights.

Attorneys who supported grandparents in this dispute declared at least a partial victory. Katie Sloan, a spokeswoman for the American Association of Retired Persons, said the decision does not prevent other grandparents from at least seeking visitation rights.

"The case was simply about giving the grandparents a voice," Ms. Sloan said.

On the other side, the Washington-based Family Research Council called the decision "a major victory for parents."

"Our laws have always presumed that fit parents will do what is in their children's best interest," said Jan LaRue, the council's senior director of legal studies.

The Supreme Court case centered on Washington state resident Tommie Granville. She and boyfriend Brad Troxel had two daughters before splitting up in 1991. Mr. Troxel committed suicide two years later.

His parents, Jenifer and Gary Troxel, sued to secure visitation rights to the two daughters. They requested two weekends of overnight visits per month and another two weeks during the summer.

Ms. Granville tried to limit the Troxels' visits to one day per month, with no overnight stay. She said she wanted her daughters to spend more time with her husband Kelly Wynn, who formally adopted the two girls.

In their court case, the grandparents cited a state law that gave any third party the right to seek visitation. Judges would decide based on what they determined was the best interest of the child.

A local judge invoked that law in granting the Troxels the right to visit one weekend per month, one full week during the summer and four hours on each grandparent's birthdays. The state appeals court sided with the parents. The Washington Supreme Court said the law violated the rights of parents. The court complained about the law's breadth, allowing anybody to apply for visitation and giving too much discretion to a judge.

The U.S. Supreme Court agreed with this finding but argued about how far it should go in applying it to other situations.

In announcing the ruling Monday morning, Justice O'Connor ruefully noted that she and her colleagues were "no more able to reach a resolution than the parties of the case."

She and three colleagues - Chief Justice William Rehnquist and Justices Stephen Breyer and Ruth Bader Ginsburg - relied on previous court rulings asserting parental rights.

Those four justices condemned the Washington law. They stressed that it did not take parents' wishes into account and put the burden of proof on parents to prove they are fit.

"In the state of Washington, a court can disregard and overturn any decision by a fit custodial parent concerning visitation ... based solely on the judge's determination of the child's best interests," Justice O'Connor wrote.

Two other justices, David Souter and Clarence Thomas, concurred in the basic decision. But they said the court simply should have struck down the law and avoided trying to define the precise nature of parents rights.

Urging more leeway

The three dissenters made much the same point in arguing that the high court should have given the grandparents more leeway.

Justice John Paul Stevens said the majority decision suggests that children are little more than "chattel." He said states need to guard against the "arbitrary exercise of parental authority" that could harm children in certain circumstances.

Another dissenter, Antonin Scalia, said decisions on complex family-law matters are better made by elected state legislators rather than un-elected federal judges.

Justice Kennedy, the third dissenter, said the court should not reject the "best interest of the child' standard out of hand. He said modern family arrangements create problems that do not lend themselves to single standards.

"Family courts in the 50 states confront these factual variations each day, and are best situated to consider the unpredictable, yet inevitable, issues that arise," Justice Kennedy wrote.

Justice O'Connor also stressed the changing American family. She noted that 28 percent of children under age 18 reside with one parent, according to the U.S. Census Bureau.

Grandparents are increasingly important as a result, the court said. The Census Bureau reported in 1998 that about 4 million children - 5.6 percent of the under-18 population - lived in the households of grandparents.

Wrote Justice O'Connor: "The demographic changes of the past century make it difficult to speak of an average American family."