WASHINGTON -- Against the sensitive backdrop of grandparent-grandchild relationships, the U.S. Supreme Court will soon open a rare window into its thinking about the nature and extent of the constitutional right of parents to raise their children.

The justices have not engaged in a substantive discussion of parental rights for at least a decade. And two key high court precedents that established the right of parental autonomy -- and that figure largely in the justices' latest family law challenge -- are themselves more than 70 years old.

But the question the justices will hear argued on Wednesday is a very modern one: Do two Washington state laws that allow any third party, including grandparents, to petition for visitation rights with a child violate parents' fundamental right to make child-rearing decisions?

The answer could have a wide impact. In 1977, only six states had so-called grandparent visitation laws on the books. Today, such laws exist in all 50 states.

The issue in Troxel v. Granville, 99-138, has implications beyond the grandparents' rights label attached to the case, say scholars: In this age of single parents, gay parenting couples, test-tube babies and other nontraditional relationships, how will the law deal with the fact that many others beside a biological mother and father may have a real interest in a child and that the child may have a real interest in a relationship with them?

"That's such an enormously difficult question that I think the Supreme Court would not want to resolve it in this particular case," says Erwin Chemerinsky, a constitutional law scholar at the University of Southern California Law School.

In tackling the constitutionality of the Washington statutes, he and others agree that the justices are likely to answer a more basic question: whether the right of parents to raise their children is fundamental and triggers the Constitution's most searching scrutiny of state attempts to interfere.

The high court's recognition of this parental right first came in 1923, long before the justices' modern formulation of different levels of scrutiny for different rights. Because the justices have never said that strict scrutiny applies, some lower courts contend that the law is unclear on where parental rights fit in the hierarchy of constitutional rights.

"It forces the court again to deal with the issue of unenumerated rights," says Chemerinsky. "Would Justice [Antonin] Scalia [a tough skeptic of unenumerated rights] call into question the very existence of this right, even though it has been recognized since the 1920s? This case really puts us right back into the debate over how to interpret the Constitution."

FROM TRAGEDY TO COURT
The Troxel case -- like so many visitation battles -- arose from a family tragedy. Tommie Granville was the mother of three children from a prior marriage when she began living with Brad Troxel. The couple subsequently had two children of their own and then separated, and Brad returned home to live with his parents. The children continued to see their father and grandparents. Brad committed suicide in 1993, but the grandparents still had visits with his children after his death.

Tommie Granville eventually met and married a man with two children of his own. She cut back on her children's visits with Brad's parents, says her lawyer, asking for time to blend together the new family. She never intended or suggested that she would end visits with the Troxels, says Catherine Smith, of Seattle's Edwards, Sieh, Smith & Goodfriend, who will argue the high court case. Granville, she adds, was juggling five sets of grandparents.

The Troxels petitioned a Washington court for visitation rights. Two state laws permit interested third parties to petition for visitation with a minor child if visitation is "in the best interests of the child." The Troxels won a visitation decree in the trial court but lost in two appeals.

In a decision that consolidated the Troxel case with two others, the Washington Supreme Court struck down the two state laws as a violation of parents' constitutional rights. Relying on such precedents as Meyer v. Nebraska, 262 U.S. 390 (1923), Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Wisconsin v. Yoder, 406 U.S. 205 (1972), the court said the U.S. Supreme Court has recognized that parents have a fundamental right to control their children's upbringing and that this right cannot be infringed without a compelling governmental interest.

"Short of preventing harm to the child, the standard of 'best interests of the child' is insufficient to serve as a compelling state interest overruling a parent's fundamental rights," wrote the state high court. "State intervention to better a child's quality of life through third-party visitation is not justified where the child's circumstances are otherwise satisfactory."

The court found other problems with the state laws: no safeguards to prevent stable families from being forced to defend against frivolous visitation petitions; no requirement that a petitioner prove he or she has a substantial relationship with the child; and no mandate that a court consider the parents' reasons for restricting visitation.

The Washington laws are the most broadly written visitation laws in the country, "which is why I wish the court would look around and say, 'We're going to hold this for a day when we can have a proper state case,'" says family law practitioner Barbara Handschu, vice president of the American Academy of Matrimonial Lawyers. "There are so many better-written statutes."

The academy filed an amicus brief in Troxel, supporting neither party. "Under proper circumstances, we believe third parties should be permitted access," explains Handschu, "but we have not clearly defined what those special circumstances should be."

New York's grandparent visitation statute, she notes, requires a threshold showing by grandparents that they had prior access, that access has been thwarted and that they continued to attempt to see the grandchildren. Only after that showing has been made, she says, should a court turn to the best interests of the child and the parents' reasons. But the New York law is flawed, in the academy's view, because it permits access only by grandparents and siblings.

The Washington statutes were doomed because the "best interests of the child" test was undefined and standardless, says Catherine Smith. "Grandparents are great, and extended families should be supported -- but not supported by allowing litigation like this. Having clear standards in domestic relations is very important. Everybody talks about these cases by describing their own relationship with their grandchildren or grandparents. That's why you need burdens and presumptions -- to keep judges focused on the family in front of them instead of on a particular family relationship that may have resonance for them."

WHAT STANDARD?
In the course of representing Granville, Smith has drawn support from a wide array of groups, including the American Civil Liberties Union, the Institute for Justice and the Lambda Legal Defense and Education Fund. While all her supporters want the state court judgment affirmed, they do not all agree on the standard for measuring the constitutionality of these statutes.

The ACLU tracks the state high court decision, arguing that "absent some showing of substantial harm" to the children, parents have a constitutional right to raise their children without state interference. Lambda, however, urges the court to impose certain requirements on third parties: They should demonstrate that they have an unusually significant relationship with the child and that the parents had encouraged that relationship. After third parties make that showing, say Lambda lawyers, courts then could apply the "best interests of the child" standard.

On the other side, the Troxels' high court counsel, Mark Olson, a Seattle solo practitioner, argues that the laws should be judged not by strict scrutiny, but by the rational-basis test. A finding that visitation is in a child's best interests, he adds, should be sufficient to overcome parental opposition.

"Visitation orders in favor of grandparents do not . . . violate a fundamental liberty interest," argues Olson, explaining that those orders differ from fundamental parental decisions such as those involving education and religion. "We do not contend that grandparents have a constitutional right to visitation orders. Striking the balance between parent-child and grandchild-grandparent interests involves a difficult assessment of complex and often-changing social, familial and personal issues. In general, that is a choice for the states to make."

Olson, too, has found strong support from outside groups, including the American Association of Retired Persons (AARP), state and local government organizations and grandparents' rights groups. Lawyers for AARP argue that upholding the Washington Supreme Court decision would "invalidate virtually all grandparent visitation statutes nationwide."

When grandparent visitation became an issue in the 1980s, "the courts seemed to ignore the traditional analysis that is usually required when you tell a parent he or she can't do something with their child," says Kathleen Bean, a family law expert at the University of Louisville's Louis D. Brandeis School of Law. "Courts would set out the question, and the next paragraph would be about this sort of unquantifiable value of grandparents' relationship and love, and then they would say everything is okay. It's almost as if someone had deleted the middle of the opinion."

Now it is time for the Supreme Court to fill in the middle, she says.

What should be in the middle is somewhat uncertain because the high court, in the older precedents at issue in Troxel, never used the modern language of scrutiny, says Chemerinsky.

"One could say there's no case that ever expressly said that as to this right, it's strict scrutiny," he says. "That's true, but the clear implication of the cases is, this is a fundamental right, and the government has to meet strict scrutiny or something like it."

Sorting this out could revive the recent vigorous debate between justices Scalia and David Souter over unenumerated rights, says Professor Douglas Kmiec, at Pepperdine University School of Law in Malibu. "Scalia argues unenumerated rights are not to be found unless they are anchored in a very specific tradition or history of the nation," says Kmiec. "Souter, on the other hand, has adopted a much looser formulation . . . that gives the Supreme Court a larger role in determining their existence."

The Troxel case gives both sides of the court the opportunity to refine competing theories, in a sensitive context -- more and more grandparents are raising young children.

"The social policy in favor of grandparent influence seems to be at its zenith," says Kmiec. "And at the same time, parental rights is an area the court has neglected for decades."

© NLP IP Company, Tuesday, January 11, 2000

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