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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