Supreme Court
of the United States
Jenifer
TROXEL, et vir., Petitioners,
v.
Tommie
GRANVILLE.
No. 99-138.
Argued Jan.
12, 2000.
Decided June
5, 2000.
Paternal grandparents petitioned for visitation with children born
out-of-wedlock. The Superior Court, Skagit County,
Michael Rickert, J., awarded visitation, and mother appealed. The Court of
Appeals,
87 Wash.App. 131, 940 P.2d 698, reversed, and grandparents appealed. The
Washington Supreme Court,
Madsen, J., affirmed. Certiorari was granted. The Supreme Court, Justice
O'Connor, held that Washington statute providing that any person may
petition court for visitation at any time, and that court may order visitation
rights for any person when visitation may serve best interest of child, violated
substantive due process rights of mother, as applied to permit paternal
grandparents, following deathof children's father, to obtain increased
court-ordered visitation, in excess of what mother had thought appropriate,
based solely on state trial judge's disagreement with mother as to whether
children would benefit from such increased visitation.
Affirmed.
Justice
Souter concurred in judgment and filed opinion.
Justice
Thomas concurred in judgment and filed opinion.
Justice
Stevens dissented and filed opinion.
Justice
Scalia dissented and filed opinion.
Justice
Kennedy dissented and filed opinion.
West
Headnotes
[1]
KeyCite Notes
92
Constitutional Law
92XII
Due Process of Law
92k252.5
k. Rights, Interests, Benefits, or Privileges Involved, in General.
Most Cited Cases
92
Constitutional Law
KeyCite Notes
92XII
Due Process of Law
92k254.1
k. Liberties and Liberty Interests Protected.
Most Cited Cases
Due
Process Clause of the Fourteenth Amendment, like its Fifth Amendment
counterpart, guarantees more than fair process; it also includes substantive
component that provides heightened protection against government interference
with certain fundamental rights and liberty interests.
U.S.C.A. Const.Amends. 5,
14.
[2]
KeyCite Notes
76D
Child Custody
76DII
Grounds and Factors in General
76DII(A)
In General
76Dk22
k. Persons Entitled in General.
Most Cited Cases
(Formerly
285k2(2))
Custody, care and nurture of child reside first with parents, whose primary
function and freedom include preparing for obligations the state can neither
supply nor hinder. (Per Justice O'Connor, with the Chief Justice and two
Justices concurring, and with two Justices concurring in result.)
[3]
KeyCite Notes
92
Constitutional Law
92XII
Due Process of Law
92k274
Deprivation of Personal Rights in General
92k274(5)
k. Privacy; Marriage, Family, and Sexual Matters.
Most Cited Cases
Due
Process Clause of the Fourteenth Amendment protects fundamental right of parents
to make decisions as to care, custody, and control of their children.
U.S.C.A. Const.Amend. 14.
[4]
KeyCite Notes
76D
Child Custody
76DVIII
Proceedings
76DVIII(B)
Evidence
76Dk466
Weight and Sufficiency
76Dk473
k. Grandparents.
Most Cited Cases
(Formerly
285k2(17))
92
Constitutional Law
KeyCite Notes
92XII
Due Process of Law
92k274
Deprivation of Personal Rights in General
92k274(5)
k. Privacy; Marriage, Family, and Sexual Matters.
Most Cited Cases
Washington statute providing that any person may petition court for visitation
at any time, and that court may order visitation rights for any person when
visitation may serve best interest of child, violated substantive due process
rights of mother, as applied to permit paternal grandparents, following death of
children's father, to obtain increased court-ordered visitation, in excess of
what mother had thought appropriate, based solely on state trial judge's
disagreement with mother as to whether children would benefit from such
increased visitation; at minimum, trial judge had to accord special weight to
mother's own determination of her children's best interests.
U.S.C.A. Const.Amend. 14;
West's RCWA 26.10.160(3). (Per Justice O'Connor, with the Chief Justice and
two Justices concurring, and with two Justices concurring in result.)
[5]
KeyCite Notes
76D
Child Custody
76DVIII
Proceedings
76DVIII(B)
Evidence
76Dk453
Presumptions
76Dk455
k. Fitness.
Most Cited Cases
(Formerly
285k2(8))
There
is presumption that fit parents act in best interests of their children. (Per
Justice O'Connor, with the Chief Justice and two Justices concurring, and with
two Justices concurring in result.)
[6]
KeyCite Notes
285
Parent and Child
285k2.5
k. Right of Parent to Control, Restrain, or Punish Child.
Most Cited Cases
(Formerly
285k2(2))
As
long as parent adequately cares for his or her children, i.e., is fit, there
will normally be no reason for state to inject itself into private realm of the
family, in order to further question ability of that parent to make best
decisions as to rearing of that parent's children. (Per Justice O'Connor, with
the Chief Justice and two Justices concurring, and with two Justices concurring
in result.)
[7]
KeyCite Notes
76D
Child Custody
76DVII
Particular Status or Relationship
76DVII(B)
Grandparents
76Dk282
Grandparent Visitation and Access to Child
76Dk286
k. Objections of Parent.
Most Cited Cases
(Formerly
285k2(17))
Whether it will be beneficial to child to have relationship with grandparent is,
in any specific case, a decision for parent to make in first instance, and if a
fit parent's decision becomes subject to judicial review, court must accord at
least some special weight to parent's own determination. (Per Justice O'Connor,
with the Chief Justice and two Justices concurring, and with two Justices
concurring in result.)
[8]
KeyCite Notes
92
Constitutional Law
92XII
Due Process of Law
92k274
Deprivation of Personal Rights in General
92k274(5)
k. Privacy; Marriage, Family, and Sexual Matters.
Most Cited Cases
Due
Process Clause does not permit state to infringe on fundamental right of parents
to make child-rearing decisions simply because state judge believes a "better"
decision could be made.
U.S.C.A. Const.Amend. 14. (Per Justice O'Connor, with the Chief Justice and
two Justices concurring, and with two Justices concurring in result.)
West
Codenotes
Unconstitutional as Applied
West's RCWA 26.10.160(3).
**2055
*57
Syllabus
[FN*]
FN*
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit
Timber & Lumber Co.,
200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Washington Rev.Code §
26.10.160(3)
permits "[a]ny person" to petition for visitation rights "at any time" and
authorizes state superior courts to grant such rights whenever visitation may
serve a child's best interest. Petitioners Troxel petitioned for the right to
visit their deceased son's daughters. Respondent Granville, the girls' mother,
did not oppose all visitation, but objected to the amount sought by the Troxels.
The Superior Court ordered more visitation than Granville desired, and she
appealed. The State Court of Appeals reversed and dismissed the Troxels'
petition. In affirming, the State Supreme Court held, inter alia, that
§ 26.10.160(3)
unconstitutionally infringes on parents' fundamental right to rear their
children. Reasoning that the Federal Constitution permits a State to interfere
with this right only to prevent harm or potential harm to
**2056
the child, it found that
§ 26.10.160(3)
does not require a threshold showing of harm and sweeps too broadly by
permitting any person to petition at any time with the only requirement being
that the visitation serve the best interest of the child.
Held:
The judgment is affirmed.
137 Wash.2d 1, 137 Wash.2d
1, 969 P.2d 21,
affirmed.
Justice
O'CONNOR,
joined by THE CHIEF JUSTICE, Justice GINSBURG, and Justice BREYER, concluded
that
§ 26.10.160(3),
as applied to Granville and her family, violates her due process right to make
decisions concerning the care, custody, and control of her daughters. Pp.
2059-2065.
(a)
The Fourteenth Amendment's Due Process Clause has a substantive component that
"provides heightened protection against government interference with certain
fundamental rights and liberty interests,"
Washington v.
Glucksberg, 521
U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772,
including parents' fundamental right to make decisions concerning the care,
custody, and control of their children, see, e.g.,
Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551.
Pp. 2059-2060.
(b)
Washington's breathtakingly broad statute effectively permits a court to
disregard and overturn any decision by a fit custodial parent concerning
visitation whenever a third party affected by the decision files a visitation
petition, based solely on the judge's determination of the child's best
interest. A parent's estimation of the child's best interest is accorded no
deference. The State Supreme Court had the opportunity,
*58
but declined, to give
§ 26.10.160(3)
a narrower reading. A combination of several factors compels the conclusion that
§ 26.10.160(3),
as applied here, exceeded the bounds of the Due Process Clause. First, the
Troxels did not allege, and no court has found, that Granville was an unfit
parent. There is a presumption that fit parents act in their children's best
interests,
Parham v. J. R.,
442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101;
there is normally no reason for the State to inject itself into the private
realm of the family to further question fit parents' ability to make the best
decisions regarding their children, see, e.g.,
Reno v. Flores,
507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1.
The problem here is not that the Superior Court intervened, but that when it did
so, it gave no special weight to Granville's determination of her daughters'
best interests. More importantly, that court appears to have applied the
opposite presumption, favoring grandparent visitation. In effect, it placed on
Granville the burden of disproving that visitation would be in her
daughters' best interest and thus failed to provide any protection for her
fundamental right. The court also gave no weight to Granville's having assented
to visitation even before the filing of the petition or subsequent court
intervention. These factors, when considered with the Superior Court's slender
findings, show that this case involves nothing more than a simple disagreement
between the court and Granville concerning her children's best interests, and
that the visitation order was an unconstitutional infringement on Granville's
right to make decisions regarding the rearing of her children. Pp. 2060-2064.
(c)
Because the instant decision rests on
§ 26.10.160(3)'s
sweeping breadth and its application here, there is no need to consider the
question whether the Due Process Clause requires all nonparental visitation
statutes to include a showing of harm or potential harm to the child as a
condition precedent to granting visitation or to decide the precise scope of the
parental due process right in the visitation context. There is also no reason to
remand this case for further proceedings. The visitation order clearly violated
the Constitution, and the parties should not be forced into additional
litigation that would further burden Granville's parental right. Pp. 2064-2065.
**2057
Justice
SOUTER
concluded that the Washington Supreme Court's second reason for invalidating its
own state statute--that it sweeps too broadly in authorizing any person at any
time to request (and a judge to award) visitation rights, subject only to the
State's particular best-interests standard--is consistent with this Court's
prior cases. This ends the case, and there is no need to decide whether harm is
required or to consider the precise scope of a parent's right or its necessary
protections. Pp. 2065- 2067.
*59
Justice
THOMAS
agreed that this Court's recognition of a fundamental right of parents to direct
their children's upbringing resolves this case, but concluded that strict
scrutiny is the appropriate standard of review to apply to infringements of
fundamental rights. Here, the State lacks a compelling interest in
second-guessing a fit parent's decision regarding visitation with third parties.
Pp. 2067-2068.
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., post, p. 2065, and
THOMAS,
J., post, p. 2067, filed opinions concurring in the judgment.
STEVENS,
J., post, p. 2068,
SCALIA,
J., post, p. 2074, and
KENNEDY,
J., post, p. 2075, filed dissenting opinions.
Mark
D. Olson, for petitioners.
Catherine W. Smith, Howard Goodfriend, for respondent.
*60
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.
I
Tommie
Granville and Brad Troxel shared a relationship that ended in June 1991. The two
never married, but they had two daughters, Isabelle and Natalie. Jenifer and
Gary Troxel are Brad's parents, and thus the paternal grandparents of Isabelle
and Natalie. After Tommie and Brad separated in 1991, Brad lived with his
parents and regularly brought his daughters to his parents' home for weekend
visitation. Brad committed suicide in May 1993. Although the Troxels at first
continued to see Isabelle and Natalie on a regular basis after their son's
death, Tommie Granville informed
*61
the Troxels in October 1993 that she wished to limit their visitation with her
daughters to one short visit per month.
In re Smith,
137 Wash.2d 1, 6, 969 P.2d 21, 23-24 (1998);
In re Troxel,
87 Wash.App. 131, 133, 940 P.2d 698, 698-699 (1997).
In
December 1993, the Troxels commenced the present action by filing, in the
Washington Superior Court for Skagit County, a petition to obtain visitation
rights with Isabelle and Natalie. The Troxels filed their petition under two
Washington statutes,
Wash. Rev.Code §§ 26.09.240
and
26.10.160(3) (1994).
Only the latter statute is at issue in this case.
Section 26.10.160(3)
provides: "Any person may petition the court for visitation rights at any time
including, but not limited to, custody proceedings. The
**2058
court may order visitation rights for any person when visitation may serve the
best interest of the child whether or not there has been any change of
circumstances." At trial, the Troxels requested two weekends of overnight
visitation per month and two weeks of visitation each summer. Granville did not
oppose visitation altogether, but instead asked the court to order one day of
visitation per month with no overnight stay.
87 Wash.App., at 133-134,
940 P.2d, at 699.
In 1995, the Superior Court issued an oral ruling and entered a visitation
decree ordering visitation one weekend per month, one week during the summer,
and four hours on both of the petitioning grandparents' birthdays.
137 Wash.2d, at 6, 969
P.2d, at 23;
App. to Pet. for Cert. 76a-78a.
Granville appealed, during which time she married Kelly Wynn. Before addressing
the merits of Granville's appeal, the Washington Court of Appeals remanded the
case to the Superior Court for entry of written findings of fact and conclusions
of law.
137 Wash.2d, at 6, 969
P.2d, at 23.
On remand, the Superior Court found that visitation was in Isabelle's and
Natalie's best interests:
"The
Petitioners [the Troxels] are part of a large, central, loving family, all
located in this area, and the Petitioners
*62
can provide opportunities for the children in the areas of cousins and music.
"...
The court took into consideration all factors regarding the best interest of the
children and considered all the testimony before it. The children would be
benefitted from spending quality time with the Petitioners, provided that that
time is balanced with time with the childrens' [sic] nuclear family. The
court finds that the childrens' [sic] best interests are served by
spending time with their mother and stepfather's other six children." App. 70a.
Approximately nine months after the Superior Court entered its order on remand,
Granville's husband formally adopted Isabelle and Natalie. Id., at
60a-67a.
The
Washington Court of Appeals reversed the lower court's visitation order and
dismissed the Troxels' petition for visitation, holding that nonparents lack
standing to seek visitation under
§ 26.10.160(3)
unless a custody action is pending. In the Court of Appeals' view, that
limitation on nonparental visitation actions was "consistent with the
constitutional restrictions on state interference with parents' fundamental
liberty interest in the care, custody, and management of their children."
87 Wash.App., at 135, 940
P.2d, at 700
(internal quotation marks omitted). Having resolved the case on the statutory
ground, however, the Court of Appeals did not expressly pass on Granville's
constitutional challenge to the visitation statute.
Id.,
at 138, 940 P.2d, at 701.
The
Washington Supreme Court granted the Troxels' petition for review and, after
consolidating their case with two other visitation cases, affirmed. The court
disagreed with the Court of Appeals' decision on the statutory issue and found
that the plain language of
§ 26.10.160(3)
gave the Troxels standing to seek visitation, irrespective of whether a custody
action was pending.
*63
137 Wash.2d, at 12, 969
P.2d, at 26-27.
The Washington Supreme Court nevertheless agreed with the Court of Appeals'
ultimate conclusion that the Troxels could not obtain visitation of Isabelle and
Natalie pursuant to
§ 26.10.160(3).
The court rested its decision on the Federal Constitution, holding that
§ 26.10.160(3)
unconstitutionally infringes on the fundamental right of parents to rear their
children. In the court's view, there were at least two problems with the
nonparental visitation statute. First, according to the Washington Supreme
Court, the Constitution permits a State to interfere with the right of parents
to rear their children only to prevent harm or potential harm to a child.
Section 26.10.160(3)
fails that standard because it requires no threshold showing of harm.
Id.,
at 15-20, 969 P.2d, at 28- 30.
Second,
**2059
by
allowing " 'any person' to petition for forced visitation of a child at 'any
time' with the only requirement being that the visitation serve the best
interest of the child," the Washington visitation statute sweeps too broadly.
Id.,
at 20, 969 P.2d, at 30.
"It is not within the province of the state to make significant decisions
concerning the custody of children merely because it could make a 'better'
decision."
Ibid.,
969 P.2d, at 31.
The Washington Supreme Court held that "[p]arents have a right to limit
visitation of their children with third persons," and that between parents and
judges, "the parents should be the ones to choose whether to expose their
children to certain people or ideas."
Id.,
at 21, 969 P.2d, at 31.
Four justices dissented from the Washington Supreme Court's holding on the
constitutionality of the statute.
Id.,
at 23-43, 969 P.2d 21,
969 P.2d, at 32-42.
We
granted certiorari,
527 U.S. 1069, 120 S.Ct.
11, 144 L.Ed.2d 842 (1999),
and now affirm the judgment.
II
The
demographic changes of the past century make it difficult to speak of an average
American family. The composition of families varies greatly from household to
household. While many children may have two married parents and
*64
grandparents who visit regularly, many other children are raised in
single-parent households. In 1996, children living with only one parent
accounted for 28 percent of all children under age 18 in the United States. U.S.
Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population
Profile of the United States 27 (1998). Understandably, in these single-parent
households, persons outside the nuclear family are called upon with increasing
frequency to assist in the everyday tasks of child rearing. In many cases,
grandparents play an important role. For example, in 1998, approximately 4
million children--or 5.6 percent of all children under age 18-- lived in the
household of their grandparents. U.S. Dept. of Commerce, Bureau of Census,
Current Population Reports, Marital Status and Living Arrangements: March 1998
(Update), p. i (1998).
The
nationwide enactment of nonparental visitation statutes is assuredly due, in
some part, to the States' recognition of these changing realities of the
American family. Because grandparents and other relatives undertake duties of a
parental nature in many households, States have sought to ensure the welfare of
the children therein by protecting the relationships those children form with
such third parties. The States' nonparental visitation statutes are further
supported by a recognition, which varies from State to State, that children
should have the opportunity to benefit from relationships with statutorily
specified persons--for example, their grandparents. The extension of statutory
rights in this area to persons other than a child's parents, however, comes with
an obvious cost. For example, the State's recognition of an independent
third-party interest in a child can place a substantial burden on the
traditional parent-child relationship. Contrary to Justice STEVENS' accusation,
our description of state nonparental visitation statutes in these terms, of
course, is not meant to suggest that "children are so much chattel." Post,
at 2072 (dissenting opinion). Rather, our terminology is intended to highlight
the fact that these
*65
statutes can present questions of constitutional import. In this case, we are
presented with just such a question. Specifically, we are asked to decide
whether
§ 26.10.160(3),
as applied to Tommie Granville and her family, violates the Federal
Constitution.
[1]
The
Fourteenth Amendment provides that no State shall "deprive any person of life,
liberty, or property, without due process of law." We have long recognized that
the Amendment's Due Process Clause, like its Fifth Amendment counterpart,
"guarantees more than fair process."
**2060
Washington v.
Glucksberg, 521
U.S. 702, 719, 117 S.Ct. 2258 (1997).
The Clause also includes a substantive component that "provides heightened
protection against government interference with certain fundamental rights and
liberty interests."
Id.,
at 720, 117 S.Ct. 2258;
see also
Reno v. Flores,
507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
[2]
The
liberty interest at issue in this case--the interest of parents in the care,
custody, and control of their children--is perhaps the oldest of the fundamental
liberty interests recognized by this Court. More than 75 years ago, in
Meyer v. Nebraska,
262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923),
we held that the "liberty" protected by the Due Process Clause includes the
right of parents to "establish a home and bring up children" and "to control the
education of their own." Two years later, in
Pierce v. Society of
Sisters, 268
U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925),
we again held that the "liberty of parents and guardians" includes the right "to
direct the upbringing and education of children under their control." We
explained in
Pierce
that "[t]he child is not the mere creature of the State; those who nurture him
and direct his destiny have the right, coupled with the high duty, to recognize
and prepare him for additional obligations."
Id.,
at 535, 45 S.Ct. 571.
We returned to the subject in
Prince v. Massachusetts,
321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944),
and again confirmed that there is a constitutional dimension to the right of
parents to direct the upbringing of their children. "It is cardinal with us that
the custody, care and nurture of the child reside first in the parents, whose
primary
*66
function and freedom include preparation for obligations the state can neither
supply nor hinder."
Id.,
at 166, 64 S.Ct. 438.
[3]
In
subsequent cases also, we have recognized the fundamental right of parents to
make decisions concerning the care, custody, and control of their children. See,
e.g.,
Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)
("It is plain that the interest of a parent in the companionship, care, custody,
and management of his or her children 'come[s] to this Court with a momentum for
respect lacking when appeal is made to liberties which derive merely from
shifting economic arrangements' " (citation omitted));
Wisconsin v. Yoder,
406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)
("The history and culture of Western civilization reflect a strong tradition of
parental concern for the nurture and upbringing of their children. This primary
role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition");
Quilloin v. Walcott,
434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)
("We have recognized on numerous occasions that the relationship between parent
and child is constitutionally protected");
Parham v. J. R.,
442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)
( "Our jurisprudence historically has reflected Western civilization concepts of
the family as a unit with broad parental authority over minor children. Our
cases have consistently followed that course");
Santosky v. Kramer,
455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)
(discussing "[t]he fundamental liberty interest of natural parents in the care,
custody, and management of their child");
Glucksberg, supra,
at 720, 117 S.Ct. 2258
("In a long line of cases, we have held that, in addition to the specific
freedoms protected by the Bill of Rights, the 'liberty' specially protected by
the Due Process Clause includes the righ [t] ... to direct the education and
upbringing of one's children" (citing
Meyer
and
Pierce)).
In light of this extensive precedent, it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the fundamental right of
parents to make decisions concerning the care, custody, and control of their
children.
*67
Section 26.10.160(3),
as applied to Granville and her family in this case, unconstitutionally
infringes on that fundamental
**2061
parental right. The Washington nonparental visitation statute is breathtakingly
broad. According to the statute's text, "[a]ny person may petition the
court for visitation rights at any time," and the court may grant such
visitation rights whenever "visitation may serve the best interest of the
child."
§ 26.10.160(3)
(emphases added). That language effectively permits any third party seeking
visitation to subject any decision by a parent concerning visitation of the
parent's children to state-court review. Once the visitation petition has been
filed in court and the matter is placed before a judge, a parent's decision that
visitation would not be in the child's best interest is accorded no deference.
Section 26.10.160(3)
contains no requirement that a court accord the parent's decision any
presumption of validity or any weight whatsoever. Instead, the Washington
statute places the best-interest determination solely in the hands of the judge.
Should the judge disagree with the parent's estimation of the child's best
interests, the judge's view necessarily prevails. Thus, in practical effect, in
the State of Washington a court can disregard and overturn any decision
by a fit custodial parent concerning visitation whenever a third party affected
by the decision files a visitation petition, based solely on the judge's
determination of the child's best interests. The Washington Supreme Court had
the opportunity to give
§ 26.10.160(3)
a narrower reading, but it declined to do so. See, e.g.,
137 Wash.2d, at 5, 969
P.2d, at 23
("[The statute] allow[s] any person, at any time, to petition for visitation
without regard to relationship to the child, without regard to changed
circumstances, and without regard to harm");
id.,
at 20, 969 P.2d, at 30
("[The statute] allow[s] 'any person' to petition for forced visitation of a
child at 'any time' with the only requirement being that the visitation serve
the best interest of the child").
[4]
*68
Turning to the facts of this case, the record reveals that the Superior Court's
order was based on precisely the type of mere disagreement we have just
described and nothing more. The Superior Court's order was not founded on any
special factors that might justify the State's interference with Granville's
fundamental right to make decisions concerning the rearing of her two daughters.
To be sure, this case involves a visitation petition filed by grandparents soon
after the death of their son--the father of Isabelle and Natalie--but the
combination of several factors here compels our conclusion that
§ 26.10.160(3),
as applied, exceeded the bounds of the Due Process Clause.
[5]
[6]
First,
the Troxels did not allege, and no court has found, that Granville was an unfit
parent. That aspect of the case is important, for there is a presumption that
fit parents act in the best interests of their children. As this Court explained
in
Parham:
"[O]ur
constitutional system long ago rejected any notion that a child is the mere
creature of the State and, on the contrary, asserted that parents generally have
the right, coupled with the high duty, to recognize and prepare [their children]
for additional obligations. ... The law's concept of the family rests on a
presumption that parents possess what a child lacks in maturity, experience, and
capacity for judgment required for making life's difficult decisions. More
important, historically it has recognized that natural bonds of affection lead
parents to act in the best interests of their children."
442 U.S., at 602, 99 S.Ct.
2493
(alteration in original) (internal quotation marks and citations omitted).
Accordingly, 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 to further question the ability of that parent
to make the
*69
best decisions concerning the rearing of that parent's children. See, e.g.,
Flores,
507 U.S., at 304, 113 S.Ct. 1439.
**2062
The problem here is not that the Washington Superior Court intervened, but that
when it did so, it gave no special weight at all to Granville's determination of
her daughters' best interests. More importantly, it appears that the Superior
Court applied exactly the opposite presumption. In reciting its oral ruling
after the conclusion of closing arguments, the Superior Court judge explained:
"The
burden is to show that it is in the best interest of the children to have some
visitation and some quality time with their grandparents. I think in most
situations a commonsensical approach [is that] it is normally in the best
interest of the children to spend quality time with the grandparent, unless the
grandparent, [sic] there are some issues or problems involved wherein the
grandparents, their lifestyles are going to impact adversely upon the children.
That certainly isn't the case here from what I can tell." Verbatim Report of
Proceedings in In re Troxel, No. 93-3-00650-7 (Wash.Super.Ct., Dec. 14,
19, 1994), p. 213 (hereinafter Verbatim Report).
The
judge's comments suggest that he presumed the grandparents' request should be
granted unless the children would be "impact[ed] adversely." In effect, the
judge placed on Granville, the fit custodial parent, the burden of disproving
that visitation would be in the best interest of her daughters. The judge
reiterated moments later: "I think [visitation with the Troxels] would be in the
best interest of the children and I haven't been shown it is not in [the] best
interest of the children."
Id.,
at 214, 113 S.Ct. 1439.
[7]
The
decisional framework employed by the Superior Court directly contravened the
traditional presumption that a fit parent will act in the best interest of his
or her child. See
Parham, supra,
at 602, 99 S.Ct. 2493.
In that respect, the court's presumption
*70
failed to provide any protection for Granville's fundamental constitutional
right to make decisions concerning the rearing of her own daughters. Cf.,
e.g., Cal. Fam.Code Ann. § 3104(e) (West 1994) (rebuttable presumption that
grandparent visitation is not in child's best interest if parents agree that
visitation rights should not be granted); Me.Rev.Stat. Ann., Tit. 19A, § 1803(3)
(1998) (court may award grandparent visitation if in best interest of child and
"would not significantly interfere with any parent-child relationship or with
the parent's rightful authority over the child");
Minn.Stat. §
257.022(2)(a)(2) (1998)
(court may award grandparent visitation if in best interest of child and "such
visitation would not interfere with the parent-child relationship");
Neb.Rev.Stat. § 43-1802(2)
(1998)
(court must find "by clear and convincing evidence" that grandparent visitation
"will not adversely interfere with the parent-child relationship");
R.I. Gen. Laws §
15-5-24.3(a)(2)(v) (Supp.1999)
(grandparent must rebut, by clear and convincing evidence, presumption that
parent's decision to refuse grandparent visitation was reasonable);
Utah Code Ann. §
30-5-2(2)(e) (1998) (same);
Hoff v. Berg,
595 N.W.2d 285, 291-292 (N.D.1999)
(holding North Dakota grandparent visitation statute unconstitutional because
State has no "compelling interest in presuming visitation rights of grandparents
to an unmarried minor are in the child's best interests and forcing parents to
accede to court-ordered grandparental visitation unless the parents are first
able to prove such visitation is not in the best interests of their minor
child"). In an ideal world, parents might always seek to cultivate the bonds
between grandparents and their grandchildren. Needless to say, however, our
world is far from perfect, and in it the decision whether such an
intergenerational relationship would be beneficial in any specific case is for
the parent to make in the first instance. And, if a fit parent's decision of the
kind at issue here becomes subject to judicial review, the court must accord at
least some special weight to the parent's own determination.
*71
Finally, we note that there is no allegation that Granville ever sought to cut
off
**2063
visitation entirely. Rather, the present dispute originated when Granville
informed the Troxels that she would prefer to restrict their visitation with
Isabelle and Natalie to one short visit per month and special holidays. See
87 Wash.App., at 133, 940
P.2d, at 699;
Verbatim Report 12. In the Superior Court proceedings Granville did not oppose
visitation but instead asked that the duration of any visitation order be
shorter than that requested by the Troxels. While the Troxels requested two
weekends per month and two full weeks in the summer, Granville asked the
Superior Court to order only one day of visitation per month (with no overnight
stay) and participation in the Granville family's holiday celebrations. See
87 Wash.App., at 133, 940
P.2d, at 699;
Verbatim Report 9 ("Right off the bat we'd like to say that our position is that
grandparent visitation is in the best interest of the children. It is a matter
of how much and how it is going to be structured") (opening statement by
Granville's attorney). The Superior Court gave no weight to Granville's having
assented to visitation even before the filing of any visitation petition or
subsequent court intervention. The court instead rejected Granville's proposal
and settled on a middle ground, ordering one weekend of visitation per month,
one week in the summer, and time on both of the petitioning grandparents'
birthdays. See
87 Wash.App., at 133-134,
940 P.2d, at 699;
Verbatim Report 216-221. Significantly, many other States expressly provide by
statute that courts may not award visitation unless a parent has denied (or
unreasonably denied) visitation to the concerned third party. See, e.g.,
Miss.Code Ann. §
93-16-3(2)(a) (1994)
(court must find that "the parent or custodian of the child unreasonably denied
the grandparent visitation rights with the child");
Ore.Rev.Stat. §
109.121(1)(a)(B) (1997)
(court may award visitation if the "custodian of the child has denied the
grandparent reasonable opportunity to visit the child");
*72
R.I. Gen. Laws §§ 15-5-
24.3(a)(2)(iii)-(iv) (Supp.1999)
(court must find that parents prevented grandparent from visiting grandchild and
that "there is no other way the petitioner is able to visit his or her
grandchild without court intervention").
[8]
Considered
together with the Superior Court's reasons for awarding visitation to the
Troxels, the combination of these factors demonstrates that the visitation order
in this case was an unconstitutional infringement on Granville's fundamental
right to make decisions concerning the care, custody, and control of her two
daughters. The Washington Superior Court failed to accord the determination of
Granville, a fit custodial parent, any material weight. In fact, the Superior
Court made only two formal findings in support of its visitation order. First,
the Troxels "are part of a large, central, loving family, all located in this
area, and the [Troxels] can provide opportunities for the children in the areas
of cousins and music." App. 70a. Second, "[t]he children would be benefitted
from spending quality time with the [Troxels], provided that that time is
balanced with time with the childrens' [sic] nuclear family." Ibid.
These slender findings, in combination with the court's announced presumption in
favor of grandparent visitation and its failure to accord significant weight to
Granville's already having offered meaningful visitation to the Troxels, show
that this case involves nothing more than a simple disagreement between the
Washington Superior Court and Granville concerning her children's best
interests. The Superior Court's announced reason for ordering one week of
visitation in the summer demonstrates our conclusion well: "I look back on some
personal experiences .... We always spen[t] as kids a week with one set of
grandparents and another set of grandparents, [and] it happened to work out in
our family that [it] turned out to be an enjoyable experience. Maybe that can,
in this family, if that is how it works out." Verbatim Report 220-221. As we
have explained,
**2064
the Due Process Clause does not permit a State to infringe on the fundamental
right
*73
of
parents to make child rearing decisions simply because a state judge believes a
"better" decision could be made. Neither the Washington nonparental visitation
statute generally--which places no limits on either the persons who may petition
for visitation or the circumstances in which such a petition may be granted--nor
the Superior Court in this specific case required anything more. Accordingly, we
hold that
§ 26.10.160(3),
as applied in this case, is unconstitutional.
Because we rest our decision on the sweeping breadth of
§ 26.10.160(3)
and the application of that broad, unlimited power in this case, we do not
consider the primary constitutional question passed on by the Washington Supreme
Court-- whether the Due Process Clause requires all nonparental 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. In this respect, we agree with Justice KENNEDY that the
constitutionality of any standard for awarding visitation turns on the specific
manner in which that standard is applied and that the constitutional protections
in this area are best "elaborated with care." Post, at 2079 (dissenting
opinion). Because much state-court adjudication in this context occurs on a
case-by-case basis, we would be hesitant to hold that specific nonparental
visitation statutes violate the Due Process Clause as a per se matter.
[FN*]
See, e.g.,
*74
Fairbanks v. McCarter,
330 Md. 39, 49-50, 622 A.2d 121, 126-127 (1993)
(interpreting best-interest standard in grandparent visitation statute normally
to require court's consideration of certain factors);
Williams v. Williams,
256 Va. 19, 501 S.E.2d 417, 418 (1998)
(interpreting Virginia nonparental visitation statute to require finding of harm
as condition precedent to awarding visitation).
FN*
All 50 States have statutes that provide for grandparent visitation in some
form. See
Ala.Code § 30-3-4.1 (1989);
Alaska Stat. Ann. §
25.20.065 (1998);
Ariz.Rev.Stat. Ann. §
25-409 (1994);
Ark.Code Ann. § 9-13-103
(1998);
Cal. Fam.Code Ann. § 3104 (West 1994);
Colo.Rev.Stat. § 19-1-117
(1999);
Conn. Gen.Stat. § 46b-59
(1995);
Del.Code Ann., Tit. 10, §
1031(7) (1999);
Fla. Stat. § 752.01 (1997);
Ga.Code Ann. § 19-7-3
(1991);
Haw.Rev.Stat. § 571- 46.3
(1999);
Idaho Code § 32-719 (1999);
Ill. Comp. Stat., ch. 750,
§ 5/607 (1998);
Ind.Code § 31-17-5-1 (1999);
Iowa Code § 598.35 (1999);
Kan. Stat. Ann. § 38-129
(1993);
Ky.Rev.Stat. Ann. § 405.021
(Baldwin 1990);
La.Rev.Stat. Ann. § 9:344
(West Supp.2000);
La. Civ.Code Ann., Art. 136
(West Supp.2000);
Me.Rev.Stat. Ann., Tit. 19A, § 1803 (1998);
Md. Fam. Law Code Ann. §
9-102 (1999);
Mass. Gen. Laws § 119:39D (1996);
Mich. Comp. Laws Ann. §
722.27b (West Supp.1999);
Minn.Stat. § 257.022 (1998);
Miss.Code Ann. § 93- 16-3
(1994);
Mo.Rev.Stat. § 452.402
(Supp.1999);
Mont.Code Ann. §
40-9-102 (1997);
Neb.Rev.Stat. § 43-1802
(1998);
Nev.Rev.Stat. § 125C.050
(Supp.1999);
N.H.Rev.Stat. Ann. §
458:17-d (1992);
N.J. Stat. Ann. § 9:2-7.1
(West Supp.1999-2000);
N.M. Stat. Ann. § 40-9-2
(1999);
N.Y. Dom. Rel. Law § 72
(McKinney 1999);
N.C. Gen.Stat. §§ 50-13.2,
50-13.2A (1999);
N.D. Cent.Code § 14-09-05.1
(1997);
Ohio Rev.Code Ann. §§
3109.051,
3109.11 (Supp.1999);
Okla. Stat., Tit. 10, § 5
(Supp.1999);
Ore.Rev.Stat. § 109.121
(1997);
23 Pa. Cons.Stat. §§ 5311-5313
(1991);
R.I. Gen. Laws §§ 15-5-24
to
15- 5-24.3 (Supp.1999);
S.C.Code Ann. §
20-7-420(33) (Supp.1999);
S.D. Codified Laws §
25-4-52 (1999);
Tenn.Code Ann. §§ 36-6-306,
36-6- 307 (Supp.1999);
Tex. Fam.Code Ann. §
153.433 (Supp.2000);
Utah Code Ann. § 30-5-2
(1998);
Vt. Stat. Ann., Tit. 15, §§
1011-1013
(1989);
Va.Code Ann. § 20-124.2
(1995);
W. Va.Code §§ 48-2B-1
to
48-2B-7 (1999);
Wis. Stat. §§ 767.245,
880.155
(1993-1994);
Wyo. Stat. Ann. § 20-7-101
(1999).
Justice STEVENS criticizes our reliance on what he characterizes as merely "a
guess" about the Washington courts' interpretation of
§ 26.10.160(3).
Post, at 2068 (dissenting opinion). Justice KENNEDY likewise states that
"[m]ore specific guidance should await a case in which a State's highest court
has considered all of the facts in the course of elaborating the protection
afforded to parents by the laws of the State and by the Constitution itself."
Post, at 2079 (dissenting opinion).
**2065
We
respectfully disagree. There is no need to hypothesize about how the Washington
courts might apply
§ 26.10.160(3)
because the Washington Superior Court did apply the statute in this very
case. Like the Washington Supreme Court, then, we are presented with an actual
visitation order and the reasons why the Superior Court believed
*75
entry of the order was appropriate in this case. Faced with the Superior Court's
application of
§ 26.10.160(3)
to Granville and her family, the Washington Supreme Court chose not to give the
statute a narrower construction. Rather, that court gave
§ 26.10.160(3)
a literal and expansive interpretation. As we have explained, that broad
construction plainly encompassed the Superior Court's application of the
statute. See supra, at 2060-2061.
There
is thus no reason to remand the case for further proceedings in the Washington
Supreme Court. As Justice KENNEDY recognizes, the burden of litigating a
domestic relations proceeding can itself be "so disruptive of the parent-child
relationship that the constitutional right of a custodial parent to make certain
basic determinations for the child's welfare becomes implicated." Post,
at 2079. In this case, the litigation costs incurred by Granville on her trip
through the Washington court system and to this Court are without a doubt
already substantial. As we have explained, it is apparent that the entry of the
visitation order in this case violated the Constitution. We should say so now,
without forcing the parties into additional litigation that would further burden
Granville's parental right. We therefore hold that the application of
§ 26.10.160(3)
to Granville and her family violated her due process right to make decisions
concerning the care, custody, and control of her daughters.
Accordingly, the judgment of the Washington Supreme Court is affirmed.
It
is so ordered.
Justice
SOUTER,
concurring in the judgment.
I
concur in the judgment affirming the decision of the Supreme Court of
Washington, whose facial invalidation of its own state statute is consistent
with this Court's prior cases addressing the substantive interests at stake. I
would say no more. The issues that might well be presented by reviewing a
decision addressing the specific application of the
*76
state statute by the trial court, ante, at 2061-2064, are not before us
and do not call for turning any fresh furrows in the "treacherous field" of
substantive due process.
Moore v. East Cleveland,
431 U.S. 494, 502, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)
(opinion of Powell, J.).
The
Supreme Court of Washington invalidated its state statute based on the text of
the statute alone, not its application to any particular case.
[FN1]
Its ruling rested on two independently sufficient grounds: the
**2066
failure of the statute to require harm to the child to justify a disputed
visitation order,
In re Smith,
137 Wash.2d 1, 17, 969 P.2d 21, 29 (1998),
and the statute's authorization of "any person" at "any time" to petition for
and to receive visitation rights subject only to a free-ranging
best-interests-of-the-child standard,
id.,
at 20-21, 969 P.2d, at 30-31.
Ante,
at 2058-2059, 969 P.2d 21.
I see no error in the second reason, that because the state statute authorizes
any person at any time to request (and a judge to award) visitation rights,
subject only to the State's particular best-*77
interests standard, the state statute sweeps too broadly and is unconstitutional
on its face. Consequently, there is no need to decide whether harm is required
or to consider the precise scope of the parent's right or its necessary
protections.
FN1.
The Supreme Court of Washington made its ruling in an action where three
separate cases, including the Troxels', had been consolidated.
In re Smith,
137 Wash.2d 1, 6-7, 969 P.2d 21, 23-24 (1998).
The court also addressed two statutes,
Wash. Rev.Code §
26.10.160(3) (Supp.1996)
and former
Wash. Rev.Code § 26.09.240
(1994),
137 Wash.2d, at 7, 969
P.2d, at 24,
the latter of which is not even at issue in this case. See Brief for Petitioners
6, n. 9; see also
ante,
at 2057-2058, 969 P.2d 21.
Its constitutional analysis discussed only the statutory language and neither
mentioned the facts of any of the three cases nor reviewed the records of their
trial court proceedings below.
137 Wash.2d, at 13-21, 969
P.2d, at 27-31.
The decision invalidated both statutes without addressing their application to
particular facts: "We conclude petitioners have standing but, as written,
the statutes violate the parents' constitutionally protected interests. These
statutes allow any person, at any time, to petition for visitation without
regard to relationship to the child, without regard to changed circumstances,
and without regard to harm."
Id.,
at 5, 969 P.2d, at 23
(emphasis added); see also
id.,
at 21, 969 P.2d, at 31
("RCW
26.10.160(3)
and former
RCW 26.09.240
impermissibly interfere with a parent's fundamental interest in the care,
custody and companionship of the child" (citations and internal quotation marks
omitted)).
We
have long recognized that a parent's interests in the nurture, upbringing,
companionship, care, and custody of children are generally protected by the Due
Process Clause of the Fourteenth Amendment. See, e.g.,
Meyer v. Nebraska,
262 U.S. 390, 399, 401, 43
S.Ct. 625, 67 L.Ed. 1042 (1923);
Pierce v. Society of
Sisters, 268
U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);
Stanley v. Illinois,
405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972);
Wisconsin v. Yoder,
406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972);
Quilloin v. Walcott,
434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978);
Parham v. J. R.,
442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979);
Santosky v. Kramer,
455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);
Washington v.
Glucksberg, 521
U.S. 702, 720, 117 S.Ct. 2258 (1997).
As we first acknowledged in
Meyer,
the right of parents to "bring up children,"
262 U.S., at 399, 43 S.Ct.
625,
and "to control the education of their own" is protected by the Constitution,
id.,
at 401, 43 S.Ct. 625.
See also
Glucksberg, supra,
at 761
(SOUTER, J., concurring in judgment).
On the
basis of this settled principle, the Supreme Court of Washington invalidated its
statute because it authorized a contested visitation order at the intrusive
behest of any person at any time subject only to a best-interests-of-the-child
standard. In construing the statute, the state court explained that the "any
person" at "any time" language was to be read literally,
137 Wash.2d, at 10-11, 969
P.2d, at 25-27,
and that "[m]ost notably the statut[e] do[es] not require the petitioner to
establish that he or she has a substantial relationship with the child,"
id.,
at 20-21, 969 P.2d, at 31.
Although the statute speaks of granting visitation rights whenever "visitation
may serve the best interest of the child,"
Wash. Rev.Code §
26.10.160(3) (1994),
the state court authoritatively read this provision as placing hardly any limit
on a court's discretion to award visitation rights. As the court understood it,
the specific best-interests provision in the
*78
statute would allow a court to award visitation whenever it thought it could
make a better decision than a child's parent had done. See
137 Wash.2d, at 20, 969
P.2d, at 31
("It is not within the province of the state to make significant decisions
concerning the custody of children merely because it could make a 'better'
decision").
[FN2]
On that basis in part, the Supreme Court of Washington invalidated the State's
own statute: "Parents have a right to limit visitation of their children with
third persons."
Id.,
at 21, 969 P.2d, at 31.
FN2.
As Justice O'CONNOR points out, the best-interests provision "contains no
requirement that a court accord the parent's decision any presumption of
validity or any weight whatsoever. Instead, the Washington statute places the
best-interest determination solely in the hands of the judge."
Ante,
at 2061, 969 P.2d 21.
Our
cases, it is true, have not set out exact metes and bounds to the protected
interest of a parent in the relationship with his child, but Meyer's
repeatedly recognized right of upbringing would be a sham if it failed to
encompass the right to be free of judicially compelled visitation by "any party"
at "any time" a judge believed
**2067
he
"could make a 'better' decision"
[FN3]
than the objecting parent had done. The strength of a parent's interest in
controlling a child's associates is as obvious as the influence of personal
associations on the development of the child's social and moral character.
Whether for good or for ill, adults not only influence but may indoctrinate
children, and a choice about a child's social companions is not essentially
different from the designation of the adults who will influence the child in
school. Even a State's considered judgment about the preferable political and
religious character of schoolteachers is not entitled
*79
to
prevail over a parent's choice of private school.
Pierce, supra,
at 535, 45 S.Ct. 571
("The fundamental theory of liberty upon which all governments in this Union
repose excludes any general power of the State to standardize its children by
forcing them to accept instruction from public teachers only. The child is not
the mere creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him for
additional obligations"). It would be anomalous, then, to subject a parent to
any individual judge's choice of a child's associates from out of the general
population merely because the judge might think himself more enlightened than
the child's parent.
[FN4]
To say the least (and as the Court implied in
Pierce),
parental choice in such matters is not merely a default rule in the absence of
either governmental choice or the government's designation of an official with
the power to choose for whatever reason and in whatever circumstances.
FN3.
Cf.
Chicago v. Morales,
527 U.S. 41, 71,
119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)
(BREYER, J., concurring in part and concurring in judgment) ("The ordinance is
unconstitutional, not because a policeman applied this discretion wisely or
poorly in a particular case, but rather because the policeman enjoys too much
discretion in every case. And if every application of the ordinance
represents an exercise of unlimited discretion, then the ordinance is invalid in
all its applications").
FN4.
The Supreme Court of Washington invalidated the broadly sweeping statute at
issue on similarly limited reasoning: "Some parents and judges will not care if
their child is physically disciplined by a third person;
some parents
and judges will not care if a third person teaches the child a religion
inconsistent with the parents' religion; and some judges and parents will not
care if the child is exposed to or taught racist or sexist beliefs. But many
parents and judges will care, and, between the two, the parents should be the
ones to choose whether to expose their children to certain people or ideas."
137 Wash.2d, at 21, 969
P.2d, at 31
(citation omitted).
Since
I do not question the power of a State's highest court to construe its domestic
statute and to apply a demanding standard when ruling on its facial
constitutionality,
[FN5]
see
Chicago v. Morales,
527 U.S. 41, 55,
n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)
(opinion of STEVENS, J.), this for me is the end of the case. I would simply
affirm the decision of the Supreme Court of Washington that its statute,
authorizing courts to grant visitation rights to any person at any time, is
unconstitutional. I therefore respectfully concur in the judgment.
FN5.
This is the pivot between Justice KENNEDY'S approach and mine.
*80
Justice
THOMAS,
concurring in the judgment.
I
write separately to note that neither party has argued that our substantive due
process cases were wrongly decided and that the original understanding of the
Due Process Clause precludes judicial enforcement of unenumerated rights under
that constitutional provision. As a result, I express no view on the merits of
this matter, and I understand the plurality as well to leave the resolution of
that issue for another day.
[FN*]
FN*
This case also does not involve a challenge based upon the Privileges and
Immunities Clause and thus does not present an opportunity to reevaluate the
meaning of that Clause. See
Saenz v. Roe,
526 U.S. 489, 527-528,
119 S.Ct. 1518, 143 L.Ed.2d 689 (1999)
(THOMAS, J., dissenting).
**2068
Consequently, I agree with the plurality that this Court's recognition of a
fundamental right of parents to direct the upbringing of their children resolves
this case. Our decision in
Pierce v. Society of
Sisters, 268
U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925),
holds that parents have a fundamental constitutional right to rear their
children, including the right to determine who shall educate and socialize them.
The opinions of the plurality, Justice KENNEDY, and Justice SOUTER recognize
such a right, but curiously none of them articulates the appropriate standard of
review. I would apply strict scrutiny to infringements of fundamental rights.
Here, the State of Washington lacks even a legitimate governmental interest--to
say nothing of a compelling one--in second-guessing a fit parent's decision
regarding visitation with third parties. On this basis, I would affirm the
judgment below.
Justice
STEVENS,
dissenting.
The
Court today wisely declines to endorse either the holding or the reasoning of
the Supreme Court of Washington. In my opinion, the Court would have been even
wiser to deny certiorari. Given the problematic character of the trial court's
decision and the uniqueness of the Washington statute, there was no pressing
need to review a State Supreme
*81
Court decision that merely requires the state legislature to draft a better
statute.
Having
decided to address the merits, however, the Court should begin by recognizing
that the State Supreme Court rendered a federal constitutional judgment holding
a state law invalid on its face. In light of that judgment, I believe that we
should confront the federal questions presented directly. For the Washington
statute is not made facially invalid either because it may be invoked by too
many hypothetical plaintiffs, or because it leaves open the possibility that
someone may be permitted to sustain a relationship with a child without having
to prove that serious harm to the child would otherwise result.
I
In response
to Tommie Granville's federal constitutional challenge, the State Supreme Court
broadly held that
Wash. Rev.Code §
26.10.160(3) (Supp.1996)
was invalid on its face under the Federal Constitution.
[FN1]
Despite the nature of this judgment, Justice O'CONNOR would hold that the
Washington visitation statute violated the Due Process Clause of the Fourteenth
Amendment only as applied. Ante, at 2059-2060, 2060-2061, 2064 (plurality
opinion). I agree with Justice SOUTER, ante, at 2065-2066, and n. 1
(opinion concurring in judgment), that this approach is untenable.
FN1.
The State Supreme Court held that, "as written, the statutes violate the
parents' constitutionally protected interests."
In re Smith,
137 Wash.2d 1, 5, 969 P.2d 21, 23 (1998).
The
task of reviewing a trial court's application of a state statute to the
particular facts of a case is one that should be performed in the first instance
by the state appellate courts. In this case, because of their views of the
Federal Constitution, the Washington state appeals courts have yet to decide
whether the trial court's findings were adequate under the
*82
statute.
[FN2]
Any as-applied critique of the trial court's judgment that this Court might
offer could only be based upon a guess about the state courts' application of
that State's statute,
**2069
and an independent assessment of the facts in this case--both judgments that we
are ill-suited and ill-advised to make.
[FN3]
FN2.
As the dissenting judge on the state appeals court noted, "[t]he trial court
here was not presented with any guidance as to the proper test to be applied in
a case such as this."
In re Troxel,
87 Wash.App. 131, 143, 940 P.2d 698, 703 (1997)
(opinion of Ellington, J.). While disagreeing with the appeals court majority's
conclusion that the state statute was constitutionally infirm, Judge Ellington
recognized that despite this disagreement, the appropriate result would not be
simply to affirm. Rather, because there had been no definitive guidance as to
the proper construction of the statute, "[t]he findings necessary to order
visitation over the objections of a parent are thus not in the record, and
I would
remand for further proceedings."
Ibid.
FN3.
Unlike Justice O'CONNOR, ante, at 2061-2062, I find no suggestion in the
trial court's decision in this case that the court was applying any presumptions
at all in its analysis, much less one in favor of the grandparents. The first
excerpt Justice O'CONNOR quotes from the trial court's ruling, ante, at
2062, says nothing one way or another about who bears the burden under
the statute of demonstrating "best interests." There is certainly no indication
of a presumption against the parents' judgment, only a " 'commonsensical'
" estimation that, usually but not always, visiting with grandparents can be
good for children.
Ibid.
The second quotation, " 'I think [visitation] would be in the best interest of
the children and I haven't been shown it is not in [the] best interest of the
children,' " ibid., sounds as though the judge has simply concluded,
based on the evidence before him, that visitation in this case would be in the
best interests of both girls. Verbatim Report of Proceedings in In re Troxel,
No. 93-3-00650-7 (Wash.Super.Ct., Dec. 14, 1994), p. 214. These statements do
not provide us with a definitive assessment of the law the court applied
regarding a "presumption" either way. Indeed, a different impression is conveyed
by the judge's very next
comment:
"That has to be balanced, of course, with Mr. and Mrs. Wynn [a.k.a. Tommie
Granville], who are trying to put together a family that includes eight
children, ... trying to get all those children together at the same time and put
together some sort of functional unit wherein the children can be raised as
brothers and sisters and spend lots of quality time together."
Ibid.
The judge then went on to reject the Troxels' efforts to attain the same level
of visitation that their son, the girls' biological father, would have had, had
he been alive. "[T]he fact that Mr. Troxel is deceased and he was the natural
parent and as much as the grandparents would maybe like to step into the shoes
of Brad, under our law that is not what we can do. The grandparents cannot step
into the shoes of a deceased parent, per say [sic], as far as whole gamut
of visitation rights are concerned."
Id.,
at 215.
Rather, as the judge put it, "I understand your desire to do that as loving
grandparents. Unfortunately that would impact too dramatically on the children
and their ability to be integrated into the nuclear unit with the mother."
Id.,
at 222-223.
However one
understands the trial court's decision--and my point is merely to demonstrate
that it is surely open to interpretation--its validity under the state statute
as written is a judgment for the state appellate courts to make in the first
instance.
*83
While I thus agree with Justice SOUTER in this respect, I do not agree with his
conclusion that the State Supreme Court made a definitive construction of the
visitation statute that necessitates the constitutional conclusion he would
draw.
[FN4]
As I read the State Supreme Court's opinion,
In re Smith,
137 Wash.2d 1, 19-20, 969 P.2d 21, 30-31 (1998),
its interpretation of the Federal Constitution made it unnecessary to adopt a
definitive construction of the statutory text, or, critically, to decide whether
the statute had been correctly applied in this case. In particular, the state
court gave no content to the phrase, "best interest of the child,"
Wash. Rev.Code §
26.10.160(3) (Supp.1996)--content
that might well be gleaned from that State's own statutes or decisional law
employing the same phrase in different contexts,
*84
and from the myriad other state statutes and court decisions at least nominally
applying the same standard.
[FN5]
Thus,
**2070
I
believe that Justice SOUTER'S conclusion that the statute unconstitutionally
imbues state trial court judges with " 'too much discretion in every
case,' " ante, at 2067, n. 3 (opinion concurring in judgment) (quoting
Chicago v. Morales,
527 U.S. 41, 71, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)
(BREYER, J., concurring)), is premature.
FN4.
Justice SOUTER would conclude from the state court's statement that the statute
"do[es] not require the petitioner to establish that he or she has a substantial
relationship with the child,"
137 Wash.2d, at 21, 969
P.2d, at 31,
that the state court has "authoritatively read [the 'best interests'] provision
as placing hardly any limit on a court's discretion to award visitation rights,"
ante, at 2066 (opinion concurring in judgment). Apart from the question
whether one can deem this description of the statute an "authoritative"
construction, it seems to me exceedingly unlikely that the state court held the
statute unconstitutional because it believed that the "best interests" standard
imposes "hardly any limit" on courts' discretion. See n. 5, infra.
FN5.
The phrase "best interests of the child" appears in no less than 10 current
Washington state statutory provisions governing determinations from guardianship
to termination to custody to adoption. See, e.g.,
Wash. Rev.Code §
26.09.240(6) (Supp.1996)
(amended version of visitation statute enumerating eight factors courts may
consider in evaluating a child's best interests); § 26.09.002 (in cases of
parental separation or divorce "best interests of the child are served by a
parenting arrangement that best maintains a child's emotional growth, health and
stability, and
physical
care"; "best interest of the child is ordinarily served when the existing
pattern of interaction between a parent and child is altered only to the extent
necessitated by the changed relationship of the parents or as required to
protect the child from physical, mental, or emotional harm"); § 26.10.100 ("The
court shall determine custody in accordance with the best interests of the
child"). Indeed, the Washington state courts have invoked the standard on
numerous occasions in applying these statutory provisions--just as if the phrase
had quite specific and apparent meaning. See, e.g.,
In re McDole,
122 Wash.2d 604, 859 P.2d 1239 (1993)
(upholding trial court "best interest" assessment in custody dispute);
McDaniels v. Carlson,
108 Wash.2d 299, 310, 738 P.2d 254, 261 (1987)
(elucidating "best interests" standard in paternity suit context). More broadly,
a search of current state custody and visitation laws reveals fully 698 separate
references to the "best interest of the child" standard, a number that, at a
minimum, should give the Court some pause before it upholds a decision implying
that those words, on their face, may be too boundless to pass muster under the
Federal Constitution.
We are
thus presented with the unconstrued terms of a state statute and a State Supreme
Court opinion that, in my view, significantly misstates the effect of the
Federal Constitution upon any construction of that statute. Given that posture,
I believe the Court should identify and correct the two flaws in the reasoning
of the state court's majority opinion,
*85
and remand for further review of the trial court's disposition of this specific
case.
II
In my view,
the State Supreme Court erred in its federal constitutional analysis because
neither the provision granting "any person" the right to petition the court for
visitation,
137 Wash.2d, at 20, 969
P.2d, at 30,
nor the absence of a provision requiring a "threshold ... finding of harm to the
child,"
ibid.,
provides a sufficient basis for holding that the statute is invalid in all its
applications. I believe that a facial challenge should fail whenever a statute
has "a 'plainly legitimate sweep,' "
Washington v.
Glucksberg, 521
U.S. 702, 739-740, and n. 7, 117 S.Ct. 2258 (1997)
(STEVENS, J., concurring in judgment).
[FN6]
Under the Washington statute, there are plainly any number of cases--indeed, one
suspects, the most common to arise--in which the "person" among "any" seeking
visitation is a once-custodial caregiver, an intimate relation, or even a
genetic parent. Even the Court would seem to agree that in many circumstances,
it would be constitutionally permissible for a court to award some visitation of
a child to a parent or previous caregiver in cases of parental separation or
divorce, cases of disputed custody, cases involving temporary foster care or
guardianship, and so forth. As the statute plainly sweeps in a great deal of the
permissible, the State Supreme Court majority incorrectly concluded that a
statute authorizing "any person" to file a petition seeking visitation
privileges would invariably run afoul of the Fourteenth Amendment.
FN6.
It necessarily follows that under the far more stringent demands suggested by
the majority in
United States v.
Salerno, 481
U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)
(plaintiff seeking facial invalidation "must establish that no set of
circumstances exists under which the Act would be valid"), respondent's facial
challenge must fail.
The
second key aspect of the Washington Supreme Court's holding--that the Federal
Constitution requires a showing of actual or potential "harm" to the child
before a court may
*86
order visitation continued over a parent's objections--finds no support in this
Court's case law. While, as
**2071
the Court recognizes, the Federal Constitution certainly protects the
parent-child relationship from arbitrary impairment by the State, see infra
this page and 2072, we have never held that the parent's liberty interest in
this relationship is so inflexible as to establish a rigid constitutional
shield, protecting every arbitrary parental decision from any challenge absent a
threshold finding of harm.
[FN7]
The presumption that parental decisions generally serve the best interests of
their children is sound, and clearly in the normal case the parent's interest is
paramount. But even a fit parent is capable of treating a child like a mere
possession.
FN7.
The suggestion by Justice THOMAS that this case may be resolved solely with
reference to our decision in
Pierce v. Society of
Sisters, 268
U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925),
is unpersuasive.
Pierce
involved a parent's choice whether to send a child to public or private school.
While that case is a source of broad language about the scope of parents' due
process rights with respect to their children, the constitutional principles and
interests involved in the schooling context do not necessarily have parallel
implications in this family law visitation context, in which multiple
overlapping and competing prerogatives of various plausibly interested parties
are at stake.
Cases
like this do not present a bipolar struggle between the parents and the State
over who has final authority to determine what is in a child's best interests.
There is at a minimum a third individual, whose interests are implicated in
every case to which the statute applies--the child.
It has
become standard practice in our substantive due process jurisprudence to begin
our analysis with an identification of the "fundamental" liberty interests
implicated by the challenged state action. See, e.g., ante, at 2059-2060
(opinion of O'CONNOR, J.);
Washington v.
Glucksberg, 521
U.S. 702, 117 S.Ct. 2258 (1997);
Planned Parenthood of
Southeastern Pa. v. Casey,
505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
My colleagues are of course correct to recognize that the right of a parent to
maintain a relationship with his or her child is among the interests included
*87
most often in the constellation of liberties protected through the Fourteenth
Amendment. Ante, at 2059-2060 (opinion of O'CONNOR, J.). Our cases leave
no doubt that parents have a fundamental liberty interest in caring for and
guiding their children, and a corresponding privacy interest--absent exceptional
circumstances--in doing so without the undue interference of strangers to them
and to their child. Moreover, and critical in this case, our cases applying this
principle have explained that with this constitutional liberty comes a
presumption (albeit a rebuttable one) that "natural bonds of affection lead
parents to act in the best interests of their children."
Parham v. J. R.,
442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979);
see also
Casey,
505 U.S., at 895, 112 S.Ct. 2791;
Santosky v. Kramer,
455 U.S. 745, 759, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982)
(State may not presume, at factfinding stage of parental rights termination
proceeding, that interests of parent and child diverge); see also ante,
at 2061-2062 (opinion of O'CONNOR, J.).
Despite this Court's repeated recognition of these significant parental liberty
interests, these interests have never been seen to be without limits. In
Lehr v. Robertson,
463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983),
for example, this Court held that a putative biological father who had never
established an actual relationship with his child did not have a constitutional
right to notice of his child's adoption by the man who had married the child's
mother. As this Court had recognized in an earlier case, a parent's liberty
interests " 'do not spring full-blown from the biological connection between
parent and child. They require relationships more enduring.' "
Id.,
at 260, 103 S.Ct. 2985
(quoting
Caban v. Mohammed,
441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)).
**2072
Conversely, in
Michael H. v. Gerald D.,
491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989),
this Court concluded that despite both biological parenthood and an established
relationship with a young child, a father's due process liberty interest in
maintaining some connection with that child was not sufficiently powerful to
overcome a state statutory presumption that the husband of the child's mother
was the child's parent. As a result of the
*88
presumption, the biological father could be denied even visitation with the
child because, as a matter of state law, he was not a "parent." A plurality of
this Court there recognized that the parental liberty interest was a function,
not simply of "isolated factors" such as biology and intimate connection, but of
the broader and apparently independent interest in family. See, e.g.,
id.,
at 123, 109 S.Ct. 2333;
see also
Lehr,
463 U.S., at 261, 103 S.Ct. 2985;
Smith v. Organization of
Foster Families For Equality & Reform,
431 U.S. 816, 842-847, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977);
Moore v. East Cleveland,
431 U.S. 494, 498-504, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).
A
parent's rights with respect to her child have thus never been regarded as
absolute, but rather are limited by the existence of an actual, developed
relationship with a child, and are tied to the presence or absence of some
embodiment of family. These limitations have arisen, not simply out of the
definition of parenthood itself, but because of this Court's assumption that a
parent's interests in a child must be balanced against the State's
long-recognized interests as parens patriae, see, e.g.,
Reno v. Flores,
507 U.S. 292, 303-304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993);
Santosky v. Kramer,
455 U.S., at 766, 102 S.Ct. 1388;
Parham,
442 U.S., at 605, 99 S.Ct. 2493;
Prince v. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645
(1944),
and, critically, the child's own complementary interest in preserving
relationships that serve her welfare and protection,
Santosky,
455 U.S., at 760, 102 S.Ct. 1388.
While
this Court has not yet had occasion to elucidate the nature of a child's liberty
interests in preserving established familial or family-like bonds,
491 U.S., at 130, 109 S.Ct.
2333
(reserving the question), it seems to me extremely likely that, to the extent
parents and families have fundamental liberty interests in preserving such
intimate relationships, so, too, do children have these interests, and so, too,
must their interests be balanced in the equation.
[FN8]
At a minimum, our prior cases recognizing
*89
that children are, generally speaking, constitutionally protected actors require
that this Court reject any suggestion that when it comes to parental rights,
children are so much chattel. See ante, at 2059-2060 (opinion of
O'CONNOR, J.) (describing States' recognition of "an independent third-party
interest in a child"). The constitutional protection against arbitrary state
interference with parental rights should not be extended to prevent the States
from protecting children against the arbitrary exercise of parental authority
that is not in fact motivated by an interest in the welfare of the child.
[FN9]
FN8.
This Court has on numerous occasions acknowledged that children
are in many
circumstances possessed of constitutionally protected rights and liberties. See
Parham v. J. R.,
442 U.S. 584, 600, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)
(liberty interest in avoiding involuntary confinement);
Planned Parenthood of
Central Mo. v. Danforth,
428 U.S. 52, 74, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976)
("Constitutional rights do not mature and come into being magically only when
one attains the state-defined age of majority. Minors, as well as adults, are
protected by the Constitution and possess constitutional rights");
Tinker v. Des Moines
Independent Community School Dist.,
393 U.S. 503, 506-507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)
(First Amendment right to political speech);
In re Gault,
387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)
(due process rights in criminal proceedings).
FN9.
Cf., e.g.,
Wisconsin v. Yoder,
406 U.S. 205, 244-246, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)
(Douglas, J., dissenting) ("While the parents, absent dissent, normally speak
for the entire family, the education of the child is a matter on which the child
will often have decided views. He may want to be a pianist or an astronaut or an
oceanographer. To do so he will have to break from the Amish tradition. It is
the future of the student, not the future of the parents, that is
imperiled by
today's decision. If a parent keeps his child out of school beyond the grade
school, then the child will be forever barred from entry into the new and
amazing world of diversity that we have today .... It is the student's judgment,
not his parents', that is essential if we are to give full meaning to what we
have said about the Bill of Rights and of the right of students to be masters of
their own destiny"). The majority's disagreement with Justice Douglas in that
case turned not on any contrary view of children's interest in their own
education, but on the impact of the Free Exercise Clause of the First Amendment
on its analysis of school-related decisions by the Amish community.
**2073
This is not, of course, to suggest that a child's liberty interest in
maintaining contact with a particular individual is to be treated invariably as
on a par with that child's parents' contrary interests. Because our substantive
due process case law includes a strong presumption that a parent will act
*90
in
the best interest of her child, it would be necessary, were the state appellate
courts actually to confront a challenge to the statute as applied, to consider
whether the trial court's assessment of the "best interest of the child"
incorporated that presumption. Neither would I decide whether the trial court
applied Washington's statute in a constitutional way in this case, although, as
I have explained, n. 3, supra, I think the outcome of this determination
is far from clear. For the purpose of a facial challenge like this, I think it
safe to assume that trial judges usually give great deference to parents'
wishes, and I am not persuaded otherwise here.
But
presumptions notwithstanding, 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.
[FN10]
Far from guaranteeing that
*91
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.
**2074
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.
FN10.
See
Palmore v. Sidoti,
466 U.S. 429, 431, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984)
("The judgment of a state court determining or reviewing a child custody
decision is not ordinarily a likely candidate for review by this Court"); cf.
Collins v. City of
Harker Heights,
503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)
(matters involving competing and multifaceted social and policy decisions best
left to local decisionmaking);
Regents of Univ. of
Mich. v. Ewing,
474 U.S. 214, 226, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985)
(emphasizing our "reluctance to trench on the prerogatives of state and local
educational institutions" as federal courts are ill-suited to "evaluate the
substance of the multitude of academic decisions that are made daily by" experts
in the field evaluating cumulative information). That caution is never more
essential than in the realm of family and intimate relations. In part, this
principle is based on long-established, if somewhat arbitrary, tradition in
allocating
responsibility for resolving disputes of various kinds in our federal system.
Ankenbrandt v. Richards,
504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992).
But the instinct against overregularizing decisions about personal relations is
sustained on firmer ground than mere tradition. It flows in equal part from the
premise that people and their intimate associations are complex and particular,
and imposing a rigid template upon them all risks severing bonds our society
would do well to preserve.
Accordingly, I respectfully dissent.
Justice
SCALIA,
dissenting.
In my
view, a right of parents to direct the upbringing of their children is among the
"unalienable Rights" with which the Declaration of Independence proclaims "all
men ... are endowed by their Creator." And in my view that right is also among
the "othe[r] [rights] retained by the people" which the Ninth Amendment says the
Constitution's enumeration of rights "shall not be construed to deny or
disparage." The Declaration of Independence, however, is not a legal
prescription conferring powers upon the courts; and the Constitution's refusal
to "deny or disparage" other rights is far removed from affirming any one of
them, and even further removed from authorizing judges to identify what they
might be, and to enforce the judges' list against laws duly enacted by the
people. Consequently, while I would think it entirely compatible with the
commitment to representative
*92
democracy set forth in the founding documents to argue, in legislative chambers
or in electoral campaigns, that the State has no power to interfere with
parents' authority over the rearing of their children, I do not believe that the
power which the Constitution confers upon me as a judge entitles me to
deny legal effect to laws that (in my view) infringe upon what is (in my view)
that unenumerated right.
Only
three holdings of this Court rest in whole or in part upon a substantive
constitutional right of parents to direct the upbringing of their children
[FN1]--two
of them from an era rich in substantive due process holdings that have since
been repudiated. See
Meyer v. Nebraska,
262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923);
Pierce v. Society of
Sisters, 268
U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);
Wisconsin v. Yoder,
406 U.S. 205, 232-233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
Cf.
West Coast Hotel Co. v.
Parrish, 300
U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937)
(overruling
Adkins v. Children's
Hospital of D. C.,
261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923)).
The sheer diversity of today's opinions persuades me that the theory of
unenumerated parental rights underlying these three cases has small claim to
stare decisis protection. A legal principle that can be thought to produce
such diverse outcomes in the relatively simple case before us here is not a
legal principle that has induced substantial reliance. While I would not now
overrule those earlier cases (that has not been urged), neither would I extend
the theory upon which they rested to this new context.
FN1.
Whether parental rights constitute a "liberty" interest for purposes of
procedural due process is a somewhat different question not implicated here.
Stanley v. Illinois,
405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972),
purports to rest in part upon that proposition, see
id.,
at 651-652, 92 S.Ct. 1208;
but see
Michael H. v. Gerald D.,
491 U.S. 110, 120-121, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)
(plurality opinion), though the holding is independently supported on equal
protection grounds, see
Stanley, supra,
at 658, 92 S.Ct. 1208.
Judicial vindication of "parental rights" under a Constitution that does not
even mention them requires (as Justice KENNEDY'S opinion rightly points out) not
only a judicially crafted definition of parents, but also--unless, as no one
believes,
*93
the parental rights are to be absolute--judicially approved assessments of "harm
to the child" and judicially defined gradations of other persons (grandparents,
extended family, adoptive family in an adoption later found to be invalid,
long-term guardians, etc.) who may have some claim against the wishes of the
parents. If we
**2075
embrace this unenumerated right, I think it obvious--whether we affirm or
reverse the judgment here, or remand as Justice STEVENS or Justice KENNEDY would
do--that we will be ushering in a new regime of judicially prescribed, and
federally prescribed, family law. I have no reason to believe that federal
judges will be better at this than state legislatures; and state legislatures
have the great advantages of doing harm in a more circumscribed area, of being
able to correct their mistakes in a flash, and of being removable by the people.
[FN2]
FN2.
I note that respondent is asserting only, on her own behalf, a
substantive due process right to direct the upbringing of her own children, and
is not asserting, on behalf of her children, their First Amendment rights
of association or free exercise. I therefore do not have occasion to consider
whether, and under what circumstances, the parent could assert the latter
enumerated rights.
For
these reasons, I would reverse the judgment below.
Justice
KENNEDY,
dissenting.
The
Supreme Court of Washington has determined that petitioners Jenifer and Gary
Troxel have standing under state law to seek court-ordered visitation with their
grandchildren, notwithstanding the objections of the children's parent,
respondent Tommie Granville. The statute relied upon provides:
"Any
person may petition the court for visitation rights at any time including, but
not limited to, custody proceedings. The court may order visitation rights for
any person when visitation may serve the best interest of the child whether or
not there has been any change of circumstances."
Wash. Rev.Code §
26.10.160(3) (1994).
*94
After acknowledging this statutory right to sue for visitation, the State
Supreme Court invalidated the statute as violative of the United States
Constitution, because it interfered with a parent's right to raise his or her
child free from unwarranted interference.
In re Smith,
137 Wash.2d 1, 969 P.2d 21 (1998).
Although parts of the court's decision may be open to differing interpretations,
it seems to be agreed that the court invalidated the statute on its face, ruling
it a nullity.
The
first flaw the State Supreme Court found in the statute is that it allows an
award of visitation to a nonparent without a finding that harm to the child
would result if visitation were withheld; and the second is that the statute
allows any person to seek visitation at any time. In my view the first theory is
too broad to be correct, as it appears to contemplate that the best interests of
the child standard may not be applied in any visitation case. I acknowledge the
distinct possibility that visitation cases may arise where, considering the
absence of other protection for the parent under state laws and procedures, the
best interests of the child standard would give insufficient protection to the
parent's constitutional right to raise the child without undue intervention by
the State; but it is quite a different matter to say, as I understand the
Supreme Court of Washington to have said, that a harm to the child standard is
required in every instance.
Given
the error I see in the State Supreme Court's central conclusion that the best
interests of the child standard is never appropriate in third-party visitation
cases, that court should have the first opportunity to reconsider this case. I
would remand the case to the state court for further proceedings. If it then
found the statute has been applied in an unconstitutional manner because the
best interests of the child standard gives insufficient protection to a parent
under the circumstances of this case, or if it again declared the statute a
nullity because the statute seems to allow any person
*95
at all to seek visitation at any time, the decision would present other issues
which may or may not warrant further review in this Court. These include not
only the protection the
**2076
Constitution gives parents against state-ordered visitation but also the extent
to which federal rules for facial challenges to statutes control in state
courts. These matters, however, should await some further case. The judgment now
under review should be vacated and remanded on the sole ground that the harm
ruling that was so central to the Supreme Court of Washington's decision was
error, given its broad formulation.
Turning to the question whether harm to the child must be the controlling
standard in every visitation proceeding, there is a beginning point that
commands general, perhaps unanimous, agreement in our separate opinions: As our
case law has developed, the custodial parent has a constitutional right to
determine, without undue interference by the state, how best to raise, nurture,
and educate the child. The parental right stems from the liberty protected by
the Due Process Clause of the Fourteenth Amendment. See, e.g.,
Meyer v. Nebraska,
262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923);
Pierce v. Society of
Sisters, 268
U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);
Prince v. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944);
Stanley v. Illinois,
405 U.S. 645, 651-652, 92 S.Ct.
1208, 31 L.Ed.2d 551 (1972);
Wisconsin v. Yoder,
406 U.S. 205, 232-233, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972);
Santosky v. Kramer,
455 U.S. 745, 753- 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
Pierce
and
Meyer,
had they been decided in recent times, may well have been grounded upon First
Amendment principles protecting freedom of speech, belief, and religion. Their
formulation and subsequent interpretation have been quite different, of course;
and they long have been interpreted to have found in Fourteenth Amendment
concepts of liberty an independent right of the parent in the "custody, care and
nurture of the child," free from state intervention.
Prince, supra,
at 166, 64 S.Ct. 438.
The principle exists, then, in broad formulation; yet courts must use
considerable restraint, including careful adherence to the incremental
instruction
*96
given by the precise facts of particular cases, as they seek to give further and
more precise definition to the right.
The
State Supreme Court sought to give content to the parent's right by announcing a
categorical rule that third parties who seek visitation must always prove the
denial of visitation would harm the child. After reviewing some of the relevant
precedents, the Supreme Court of Washington concluded " '[t]he requirement of
harm is the sole protection that parents have against pervasive state
interference in the parenting process.' "
137 Wash.2d, at
19-20, 969 P.2d, at 30
(quoting
Hawk v. Hawk,
855 S.W.2d 573, 580 (Tenn.1993)).
For that reason, "[s]hort of preventing harm to the child," the court considered
the best interests of the child to be "insufficient to serve as a compelling
state interest overruling a parent's fundamental rights."
137 Wash.2d, at 20, 969
P.2d, at 30.
While
it might be argued as an abstract matter that in some sense the child is always
harmed if his or her best interests are not considered, the law of domestic
relations, as it has evolved to this point, treats as distinct the two
standards, one harm to the child and the other the best interests of the child.
The judgment of the Supreme Court of Washington rests on that assumption, and I,
too, shall assume that there are real and consequential differences between the
two standards.
On the
question whether one standard must always take precedence over the other in
order to protect the right of the parent or parents, "[o]ur Nation's history,
legal traditions, and practices" do not give us clear or definitive answers.
Washington v.
Glucksberg, 521
U.S. 702, 721, 117 S.Ct. 2258 (1997).
The consensus among courts and commentators is that at least through the 19th
century there was no legal right of visitation; court-ordered visitation appears
to be a 20th-century phenomenon.
**2077
See, e.g., 1 D. Kramer, Legal Rights of Children 124, 136 (2d ed.1994); 2
J. Atkinson, Modern
*97
Child Custody Practice § 8.10 (1986). A case often cited as one of the earliest
visitation decisions,
Succession of Reiss,
46 La. Ann. 347, 353, 15 So. 151, 152 (1894),
explained that "the obligation ordinarily to visit grandparents is moral and not
legal"--a conclusion which appears consistent with that of American common-law
jurisdictions of the time. Early 20th-century exceptions did occur, often in
cases where a relative had acted in a parental capacity, or where one of a
child's parents had died. See
Douglass v. Merriman,
163 S.C. 210, 161 S.E. 452 (1931)
(maternal grandparent awarded visitation with child when custody was awarded to
father; mother had died);
Solomon v. Solomon,
319 Ill.App. 618, 49 N.E.2d 807 (1943)
(paternal grandparents could be given visitation with child in custody of his
mother when their son was stationed abroad; case remanded for fitness hearing);
Consaul v. Consaul,
63 N.Y.S.2d 688 (Sup.Ct. Jefferson Cty.1946)
(paternal grandparents awarded visitation with child in custody of his mother;
father had become incompetent). As a general matter, however, contemporary
state-court decisions acknowledge that "[h]istorically, grandparents had no
legal right of visitation,"
Campbell v. Campbell,
896 P.2d 635, 642, n. 15 (Utah App.1995),
and it is safe to assume other third parties would have fared no better in
court.
To say
that third parties have had no historical right to petition for visitation does
not necessarily imply, as the Supreme Court of Washington concluded, that a
parent has a constitutional right to prevent visitation in all cases not
involving harm. True, this Court has acknowledged that States have the authority
to intervene to prevent harm to children, see, e.g.,
Prince, supra,
at 168-169, 64 S.Ct. 438;
Yoder, supra,
at 233-234, 92 S.Ct. 1526,
but that is not the same as saying that a heightened harm to the child standard
must be satisfied in every case in which a third party seeks a visitation order.
It is also true that the law's traditional presumption has been "that natural
bonds of affection lead parents to act in the
*98
best interests of their children,"
Parham v. J. R.,
442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979);
and "[s]imply because the decision of a parent is not agreeable to a child or
because it involves risks does not automatically transfer the power to make that
decision from the parents to some agency or officer of the state,"
id.,
at 603, 99 S.Ct. 2493.
The State Supreme Court's conclusion that the Constitution forbids the
application of the best interests of the child standard in any visitation
proceeding, however, appears to rest upon assumptions the Constitution does not
require.
My
principal concern is that the holding seems to proceed from the assumption that
the parent or parents who resist visitation have always been the child's primary
caregivers and that the third parties who seek visitation have no legitimate and
established relationship with the child. That idea, in turn, appears influenced
by the concept that the conventional nuclear family ought to establish the
visitation standard for every domestic relations case. As we all know, this is
simply not the structure or prevailing condition in many households. See,
e.g.,
Moore v. East Cleveland,
431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).
For many boys and girls a traditional family with two or even one permanent and
caring parent is simply not the reality of their childhood. This may be so
whether their childhood has been marked by tragedy or filled with considerable
happiness and fulfillment.
Cases
are sure to arise--perhaps a substantial number of cases--in which a third
party, by acting in a caregiving role over a significant period of time, has
developed a relationship with a child which is not necessarily subject to
absolute parental veto. See
Michael H. v. Gerald D.,
491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)
(putative natural father not entitled to rebut state-law presumption that child
born in a
**2078
marriage is a child of the marriage);
Quilloin v. Walcott,
434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)
(best interests standard sufficient in adoption proceeding to protect interests
of natural father who had not legitimated the child); see also
Lehr v. Robertson,
463 U.S. 248, 261, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983)
(" '[T]he importance of the familial relationship, to the individuals involved
*99
and to the society, stems from the emotional attachments that derive from the
intimacy of daily association, and from the role it plays in "promot[ing] a way
of life" through the instruction of children ... as well as from the fact of
blood relationship' " (quoting
Smith v. Organization of
Foster Families For Equality & Reform,
431 U.S. 816, 844, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977),
in turn quoting
Yoder,
406 U.S., at 231-233, 92
S.Ct. 1526)).
Some pre-existing relationships, then, serve to identify persons who have a
strong attachment to the child with the concomitant motivation to act in a
responsible way to ensure the child's welfare. As the State Supreme Court was
correct to acknowledge, those relationships can be so enduring that "in certain
circumstances where a child has enjoyed a substantial relationship with a third
person, arbitrarily depriving the child of the relationship could cause severe
psychological harm to the child,"
137 Wash.2d, at 20, 969
P.2d, at 30;
and harm to the adult may also ensue. In the design and elaboration of their
visitation laws, States may be entitled to consider that certain relationships
are such that to avoid the risk of harm, a best interests standard can be
employed by their domestic relations courts in some circumstances.
Indeed, contemporary practice should give us some pause before rejecting the
best interests of the child standard in all third-party visitation cases, as the
Washington court has done. The standard has been recognized for many years as a
basic tool of domestic relations law in visitation proceedings. Since 1965 all
50 States have enacted a third-party visitation statute of some sort. See
ante,
at 2064, 969 P.2d 21,
n. (plurality opinion). Each of these statutes, save one, permits a court order
to issue in certain cases if visitation is found to be in the best interests of
the child. While it is unnecessary for us to consider the constitutionality of
any particular provision in the case now before us, it can be noted that the
statutes also include a variety of methods for limiting parents' exposure to
third-party visitation petitions and for ensuring parental decisions are given
respect. Many States
*100
limit the identity of permissible petitioners by restricting visitation
petitions to grandparents, or by requiring petitioners to show a substantial
relationship with a child, or both. See, e.g.,
Kan. Stat. Ann. § 38-129
(1993 and Supp.1998) (grandparent visitation authorized under certain
circumstances if a substantial relationship exists);
N.C. Gen.Stat. §§ 50-13.2,
50-13.2A,
50-13.5 (1999) (same);
Iowa Code § 598.35
(Supp.1999)
(same; visitation also authorized for great-grandparents);
Wis. Stat. § 767.245
(Supp.1999)
(visitation authorized under certain circumstances for "a grandparent,
greatgrandparent, stepparent or person who has maintained a relationship similar
to a parent-child relationship with the child"). The statutes vary in other
respects--for instance, some permit visitation petitions when there has been a
change in circumstances such as divorce or death of a parent, see, e.g.,
N.H.Rev.Stat. Ann. §
458:17-d (1992),
and some apply a presumption that parental decisions should control, see,
e.g., Cal. Fam.Code Ann. §§ 3104(e)-(f) (West 1994);
R.I. Gen. Laws §
15-5-24.3(a)(2)(v) (Supp.1999).
Georgia's is the sole state legislature to have adopted a general harm to the
child standard, see
Ga.Code Ann. § 19-7- 3(c)
(1999),
and it did so only after the Georgia Supreme Court held the State's prior
visitation statute invalid under the Federal and Georgia Constitutions, see
Brooks v. Parkerson,
265 Ga. 189, 454 S.E.2d 769,
cert. denied,
516 U.S. 942, 116 S.Ct.
377, 133 L.Ed.2d 301 (1995).
**2079
In
light of the inconclusive historical record and case law, as well as the almost
universal adoption of the best interests standard for visitation disputes, I
would be hard pressed to conclude the right to be free of such review in all
cases is itself " 'implicit in the concept of ordered liberty.' "
Glucksberg,
521 U.S., at 721, 117 S.Ct. 2258
(quoting
Palko v. Connecticut,
302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)).
In my view, it would be more appropriate to conclude that the constitutionality
of the application of the best interests standard depends on more specific
factors. In short, a fit parent's right vis-à-vis a complete
*101
stranger is one thing; her right vis-à-vis another parent or a de facto
parent may be another. The protection the Constitution requires, then, must be
elaborated with care, using the discipline and instruction of the case law
system. We must keep in mind that family courts in the 50 States confront these
factual variations each day, and are best situated to consider the
unpredictable, yet inevitable, issues that arise. Cf.
Ankenbrandt v. Richards,
504 U.S. 689, 703-704, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992).
It
must be recognized, of course, that a domestic relations proceeding in and of
itself can constitute state intervention that is so disruptive of the
parent-child relationship that the constitutional right of a custodial parent to
make certain basic determinations for the child's welfare becomes implicated.
The best interests of the child standard has at times been criticized as
indeterminate, leading to unpredictable results. See, e.g., American Law
Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tent. Draft
No. 3, Mar. 20, 1998). If a single parent who is struggling to raise a child is
faced with visitation demands from a third party, the attorney's fees alone
might destroy her hopes and plans for the child's future. Our system must
confront more often the reality that litigation can itself be so disruptive that
constitutional protection may be required; and I do not discount the possibility
that in some instances the best interests of the child standard may provide
insufficient protection to the parent-child relationship. We owe it to the
Nation's domestic relations legal structure, however, to proceed with caution.
It
should suffice in this case to reverse the holding of the State Supreme Court
that the application of the best interests of the child standard is always
unconstitutional in third-party visitation cases. Whether, under the
circumstances of this case, the order requiring visitation over the objection of
this fit parent violated the Constitution ought to be reserved for further
proceedings. Because of its sweeping ruling requiring
*102
the harm to the child standard, the Supreme Court of Washington did not have the
occasion to address the specific visitation order the Troxels obtained. More
specific guidance should await a case in which a State's highest court has
considered all of the facts in the course of elaborating the protection afforded
to parents by the laws of the State and by the Constitution itself. Furthermore,
in my view, we need not address whether, under the correct constitutional
standards, the Washington statute can be invalidated on its face. This question,
too, ought to be addressed by the state court in the first instance.
In my
view the judgment under review should be vacated and the case remanded for
further proceedings.
U.S.Wash.,2000.
Troxel
v. Granville
530
U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, 68 USLW 4458, 00 Cal. Daily Op. Serv.
4345, 2000 Daily Journal D.A.R. 5831, 13 Fla. L. Weekly Fed. S 365
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