Trends in Family Law: Troxel revisited?

November 23, 2011

Family Law Theme Month

(Editor’s note: Because of the shifting terrain of family law on the national level, we’ll be looking at different trends in the field throughout the month of November)

For the first post on interstate same-sex adoption, click here.

For the second post on state constitutional “personhood” amendment, click here.

For the third post on child custody in same-sex separations, click here.

It’s been over 11 years since the Supreme Court handed down Troxel v. Granville, one of the most significant family law decisions ever made by the high court.

The case, which originated in Washington State, involved paternal grandparents – the Troxels – petitioning for visitation with children born out-of-wedlock.

Granville, the girls’ mother, didn’t oppose all such visitation, but objected to the amount sought by the Troxels.

The Supreme Court’s ruling came down in favor of Granville.

The opinion invalidated the Washington statute that allowed the Troxels to petition for visitation with their grandchildren on the grounds that it unconstitutionally infringed on parents’ fundamental right to raise their children.

So the whole issue is settled right?

Not quite.

The Troxel opinion was a plurality, rather than a majority, so the precedent set by the case is fairly narrow, limited only to the points on which the four Justices of the plurality agree with the other two concurring Justices.

In addition to affirming parents’ constitutional right to the upbringing of their children, Troxel only really requires that states give “special weight” to a fit parent’s decision to deny non-parent visitation.

The problem is that the Court didn’t define “special weight” or specify any criteria for states to follow.

This normally shouldn’t be much of a problem: it would be impossible to run afoul of a parent’s constitutional right if states just gave absolute veto power to parents over non-parent visitation time.

However, ambiguity of “special weight” left states with enough confusion (some would actually say “wiggle room”) for grandparents’ rights groups to successfully advocate for less stringent third-party visitation criteria.

This has left a relatively even split among the states on the application of Troxel.

One side holds that grandparents seeking court-ordered visitation over the parents’ objection must prove that some “compelling” circumstance (i.e. an unfit parent) justifies visitation.

The other side holds that it’s enough that a “presumption” is applied in favor of the parents’ wishes and that the petitioning grandparents are charged with proving that visitation is in the children’s best interest.

That’s kind of a mouthful, so here’s a condensed version:

Does a parent need to be demonstrated as unfit before visitation may be awarded to grandparents, or can the “best interests” test overcome a parent’s constitutional rights?

This is quite a significant divergence.

Thankfully, the Supreme Court has been presented with the opportunity to clarify its Troxel stance during its current term.

That opportunity is in the form of E.R.G. v. E.H.G., an Alabama Supreme Court case that has been appealed to the U.S. Supreme Court (but the Court hasn’t responded yet).

Supreme Court BuildingThe question presented to the Court by the grandparents’ petition for certiorari is framed as such as to resolve the above divergence.

The real question is, though, whether the Supreme Court will even look at the case.

The primary obstacle to a grant of cert is the Supreme Court’s general discomfort with family law matters.

This is partly because the Court tends to view the area as best left to the states and partly because family law cases represent the nastiest of all legal battles.

The invocation of Troxel’s interpretation may shift the Court towards hearing the case, though.

If the Court does decide to hear the case, the change in the composition of the Court over the past 11 years may actually make for a more concrete opinion.

As much as I would love to get into it here, the discussion of how the new Justices would rule on the issue would require a separate post (which I may do, should the Court agree to look at the case).

Until we get another Court ruling clarifying Troxel, the states are left to their own devices to interpret that vague and fractured ruling.