September 2000

Grandparent Visitation Rulings Leave Unanswered Questions

by Justice Philip Talmadge, Washington Supreme Court

Consider the following two factual scenarios.

Case 1: A child’s grandparents have had a significant role in the child’s upbringing during the child’s first 10 years. The child’s father (the grandparents’ son) dies. The child’s mother decides she no longer wants any contact between the child and her late husband’s parents. Does the child have any right of visitation with the grandparents?

Case 2: A man moves in with a woman who has a newborn. During the child’s first seven years of life, the man does not adopt the child; nonetheless he effectively serves as the child’s father because he is intimately involved in rearing the child. The man and woman have a falling out. The woman says the man may have no further contact with her child. Does this child have any right of visitation with the man?

I believe most of us would answer these questions by saying the child has some right of ongoing contact with these loved ones. The recent decision of the United States Supreme Court in Troxel v. Granville, affirming a decision of the Washington Supreme Court, appears to invalidate a Washington State law that would have allowed the children in Case 1 and Case 2 to have visitation with the grandparents or the father figure. The U.S. Supreme Court did not endorse the reasoning of the Washington Supreme Court. But neither the U.S. Supreme Court nor the Washington Supreme Court offers clear guidance to legislators as to whether they may adopt a statute allowing visitation rights to these children who have developed close relationships with adults other than their biological parents, even when such ongoing contact is arguably in the best interests of the child.

I authored the dissenting opinion of the Washington Supreme Court on this issue. I have now carefully read the U.S. Supreme Court decision, with six separate opinions of the justices, and I must confess I am both confused and troubled by the decisions of both courts.

Given the complex and changing nature of the American family, there are circumstances where third parties with a close connection to a child, such as grandparents, aunts, uncles or stepparents who have effectively raised the child, should have ongoing contact with that child if it is in the child’s best interest. While I would always hope the families involved would be able to resolve these types of conflicts on their own, there will be circumstances where conflicts arise requiring judicial involvement to resolve the dispute. Our court system in family law cases makes these sensitive decisions every day with respect to parenting plans, child support and other domestic decisions. In certain circumstances, I can envision nothing more heartless and cruel than depriving a child of the close contact with someone with whom they have developed a close bond. Both the decision of the U.S. Supreme Court and the Washington Supreme Court appear to elevate biology above all else. This cannot be right.

The second concern I perceive from the courts’ decisions is the willingness of both courts to effectively substitute their judgment for that of the Legislature. The Washington State Legislature, over a period of years, has attempted to develop a statutory policy on third-party visitation with children. While I do not agree with the breadth of that statute and would write it more precisely, the question is not whether judges like the public policy adopted by legislators, but whether the public policy is unconstitutional.

Neither the Washington Supreme Court nor the U.S. Supreme Court explicitly describe how, if at all, the Washington statute is unconstitutional. Both courts failed to recognize the longstanding legal tradition of parens patriae, a centuries-old doctrine in Anglo-American law. Essentially, under this doctrine which predated the adoption of our Constitution, the state could step in on behalf of a child, and take appropriate steps to protect that child from harm and to advance that child’s best interests. Ignoring this well-settled principle, both the Washington and U.S. Supreme Courts assert that a state’s interest is limited to determining only if a child is with a fit parent. All actions of a fit parent are presumed to be in the best interests of the child; therefore, no further action by the Legislature may be taken. This has never been the law, and it raises profound questions about a state’s ability to adopt laws relating to the protection of children.

Neither the decision of the Washington Supreme Court majority nor the U.S. Supreme Court offers any clues to legislators, concerning what steps, if any, they may take legislatively to allow contact between third parties and children, where such contact would plainly be in the best interest of the child. We are left with a circumstance where the highest courts of Washington and the United States have essentially said this law is unacceptable to them, not necessarily on constitutional grounds, but because they do not like its "breathtaking sweep." Both courts have effectively decided the person affected by the decision, the child, has no say in it. I agree with Justice John Paul Stevens’ observation:

… we should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a ‘person’ other than a parent. The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily. It is indisputably the business of the States, rather than a federal court employing a national standard, to assess in the first instance the relative importance of the conflicting interests that give rise to disputes such as this. Far from guaranteeing that parents’ interests will be trammeled in the sweep of cases arising under the statute, the Washington law merely gives an individual — with whom a child may have an established relationship — the procedural right to ask the State to act as arbiter, through the entirely well-known best-interests standard, between the parent’s protected interests and the child’s. It seems clear to me that the Due Process Clause of the Fourteenth Amendment leaves room for States to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child.

Unfortunately, the courts have done little to guide sincere legislators attempting to craft an appropriate public policy in this very difficult area. Given the nature of familial relationships in our society, it would not surprise me if the Legislature attempts to address this issue in the future. I hope they try to do so. Both the Washington Supreme Court and the U.S. Supreme Court should have done better in protecting the interests of children.

Justice Philip Talmadge authored the Washington Supreme Court’s dissent in the Troxel v. Granville case. Justice Talmadge was elected to the Washington Supreme Court in 1994, and served in the Washington State Senate from 1979 to 1995, where he chaired the Senate Judiciary Committee and the Senate Health and Human Services Committee.

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