Family Law Case Study

The Supreme Court ruled recently that a broad Washington state law allowing visitation rights for grandparents
and other third parties violated the due process rights of a mother to raise her children as she saw fit. In a rare
foray into the field of family law, usually reserved to state courts, the Court was sharply divided in the much
anticipated case of Troxel v. Granville . The 6-3 decision produced six separate writings by justices — three in the
majority and three in dissent — sapping some of the force of the decision.

Justice Sandra Day O’Connor, in announcing the main opinion from the bench, noted in an aside that, “unfortunately,”
the members of this Court were as divided as the parties in the case before the Court. O’Connor wrote that
“grandparents play an important role” in raising children in many modern households. But, she added, “So long as a
parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself
into the private realm of the family,” She stressed that her ruling struck down Washington’s broad visitation law “as
applied” to the children of Tommie Granville.

Soon after Brad Troxel committed suicide in 1993, his parents Gary and Jenifer Troxel went to court to seek more time
with their two grandchildren than the mother was willing to allow. A trial judge agreed that more visitation was in the
children’s “best interests,” but the Washington Supreme Court sided with the mother. The state high court said the third
party visitation law violates parents’ rights under the U.S. Constitution to decide how to rear their children. O’Connor
agreed, asserting that the Washington law is “breathtakingly broad” and that the lower court judge who ordered greater
visitation had given “no special weight” to the mother’s determination that less visitation was best for her daughters. But
O’Connor was careful to limit the scope of her opinion, asserting that it does not decide “whether the due process clause
requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition
precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right
in the visitation context.”

Justices John Paul Stevens, Antonin Scalia, and Anthony Kennedy each wrote separate dissents. Stevens said “it is
indisputably the business of the states” to weigh the conflicting interests in disputes such as the one before the Court.