Today in 2000: The Supreme Court decides landmark grandparent visitation case

June 5, 2015

Today in Legal HistoryUnlike other practice areas like criminal law or insurance law, family law practitioners have very few Supreme Court decisions to point to that are of any significant import to their field.  If there is one family law Supreme Court ruling that is known to the majority of practitioners, however, it is Troxel v. Granville.  The landmark case was decided 15 years ago today, on June 5, 2000.

Troxel is the chief authority on the issue of grandparent visitation, which refers to cases in which one or more grandparents seek to assert parenting time rights with their grandchildren over the objections of the grandchildren’s parents.  As you might imagine, these cases are an unpleasant experience for everyone involved, and this unpleasantness was apparent in the severely fractured nature of the Supreme Court’s opinion.

But first, the facts:

Troxel began with a custody dispute in Washington State between a mother of two children born out of wedlock and the children’s paternal grandparents.  After the parents separated, the children’s father lived with his parents “and regularly brought his daughters to his parents’ home for weekend visitation.”  The father died a couple of years later.  At first, the grandparents continued to see their granddaughters on a regular basis after their son’s death, after several months, the girls’ mother informed the grandparents “that she wished to limit their visitation with her daughters to one short visit per month.”  The grandparents took to the courts three months later.

The trial court awarded two weekend overnight visits a month to the grandparents – which was more visitation time than the mother wanted – so the mother appealed.  The Washington appeals court and Washington Supreme Court both reversed the trial court, finding that the state statute that allowed nonparents to petition for visitation rights “impermissibly interfered with parents’ fundamental interest in care, custody and companionship of their children and, thus, were unconstitutional.”

The U.S. Supreme Court agreed to review the case, and, in a heavily splintered plurality decision, affirmed the Washington high court.  Justice Sandra Day O’Connor wrote the four-Justice plurality opinion, and was joined by Chief Justice Rehnquist and Justices Ginsburg, and Breyer.  Typically cited as the controlling opinion, the plurality held that the Washington statute was unconstitutional as applied to Granville’s case, since it violated “her due process right to make decisions concerning the care, custody, and control of her daughters.”

Justices Souter and Thomas also concurred in the judgment, but for different reasons.  Justice Souter would have simply affirmed the Washington Supreme Court’s “facial invalidation of its own state statute” without “turning any fresh furrows in the ‘treacherous field’ of substantive due process” by “consider[ing] the precise scope of the parent’s right or its necessary protections.”  Justice Thomas, on the other hand, wanted to go further than the plurality, finding that infringements on the “fundamental right of parents to direct the upbringing of their children” must be subjected to strict scrutiny.

Justices Stevens, Scalia, and Kennedy all dissented separately.  While none disagreed that parents had a right to the upbringing of their children free from unwarranted interference, they disagreed in varying ways about the Court’s role in deciding the issue, rather than leaving it in the states’ hands.

As might be expected from a Court decision with six separate opinions, the issue of grandparents’ visitation rights is still heavily contested, with jurisdictions across the country disagreeing about the exact meaning of Troxel and the rights that may be sought by grandparents in family court.

The contentiousness is also likely responsible for the Court’s unwillingness to revisit the issue anytime soon, as it had the opportunity to resolve the deep divide created by Troxel in 2012, and refused to hear that case.

In the meantime, grandparent visitation will continue to be a difficult issue faced by family lawyers, with Troxel providing only partial guidance in a treacherous emotional minefield.