Parents' Rights, Part II

[A18]

Troxel v. Granville, 530 U.S. 57 (2000)

In recent years, many state legislatures have enacted laws allowing grandparents to go to court to force their children to let them visit their grandchildren. Who decides whether such visits are a good idea--parents or judges? This case answers that question.

JUDGES: O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Ginsburg and Breyer, JJ., joined. Souter, J., and Thomas, J., filed opinions concurring in the judgment. Stevens, J., Scalia, J., and Kennedy, J., filed dissenting opinions.

OPINION: Justice O'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Breyer join.

Section 26.10.160(3) of the Revised Code of Washington permits "[a]ny person" to petition a superior court for visitation rights "at any time," and authorizes that court to grant such visitation rights whenever "visitation may serve the best interest of the child." Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, which held that §26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.

...

We ... now affirm the judgment.

[MODU]

I haven't had time to read the case.  I'm assuming these are grandparents of grandchildren caught between two divorced parents?

[Emsworth]

The ruling was constitutionally invalid. It is based on the unsound doctrine of "substantive due process."

However, Justice Thomas made clear in his concurrence that neither party raised the claim that "substantive due process" is an invalid concept. Thus, the court could not be expected to strike down the doctrine. Accordingly, I do not blame the court at all for making this ruling.

[A18]

They did more than uphold the theory. They extended it.

[Emsworth]

They did more than uphold the theory. They extended it.

If the "compelling state interest" standard is to be applied in this case, then, an argument could be made that the law was unconstitutional. Neither side challenged the application of such a standard.

[A18]

What does that have to do with what I said?

[Emsworth]

What does that have to do with what I said?

The compelling state interest standard is a part of the substantive due process doctrine, of course. To apply the standard uniformly is to uphold, not extend, substantive due process. The standard is, of course, flawed to begin with, but neither party challenged it, so the merits of the standard do not enter into the picture.

[A18]

By extend, I meant I would not apply the standard to this new area.