Supreme Court Reaffirms Presumption that Parents May Make Childrearing
Decisions
-guest editorial by Attorny Karen A. Wyle
On June 5, 2000, the U.S. Supreme Court issued a long-awaited decision. At stake
was whether, and when, state courts may override parental decisions, ordering
parents to let grandparents or other nonparents have "visitation" with
their children. This "visitation" most often involves unsupervised
visits in a grandparent's home, often in another city or state. Parental
objections based on a grandparent's abusive past conduct, the grandparent's
refusal to follow the parent's wishes on childrearing matters, or the child's
need to be elsewhere have all been overridden by judges applying a variety of
state statutes.
In the case before the Court, the children's father had committed suicide, and
the mother and paternal grandparents disagreed about the extent of visitation.
The Washington trial court had overridden the mother's decision, assuming that
it was good for children and grandparents to spend time together unless the
grandparent's lifestyle posed a concern. The Supreme Court of the state of
Washington overturned the trial court's decision. The U.S. Supreme Court decided
6-3 to affirm the Washington Supreme Court's judgment. However, the Court failed
to issue any majority opinion. Justice O'Connor issued an opinion joined by
Justices Breyer, Ginsburg and Rehnquist (the "plurality" opinion).
Justices Souter and Thomas concurred (agreed) with the result, each filing his
own opinion. Justices Kennedy, Scalia and Stevens dissented, each filing his own
opinion. It should be noted that none of the Justices, not even the dissenting
Justices, stated that the trial court's order was constitutionally sound.
Many people have been baffled or frustrated by these multiple opinions. Some
have asked whether the Court really decided anything, or gave states, parents
and grandparents any guidance. In fact, read together, the plurality, concurring
and dissenting opinions reaffirm and clarify several important principles. The
Justices' disagreements concern various technical and procedural issues more
than the substance of the case. If trial judges follow the Supreme Court's
admonitions, many judges will become far more hesitant to override parents'
decisions about who may associate with and care for their children.
All nine Justices agreed that the U.S. Constitution protects a parent's
fundamental right to make decisions concerning the care, custody and control of
his or her children. Even more important, at least five Justices -- a majority
-- held that this fundamental constitutional right requires the states to
presume that parents are acting in their child's best interest, even when they
deny grandparents access to the child. While this presumption can be rebutted,
it must be the state courts' starting point. The State may not presume that
grandparent visitation over a parent's objection is in the child's best
interest. Five Justices explicitly stated that the burden of proof is on the
party seeking to override the parental decision on visitation.
The plurality and Justice Kennedy -- again, a majority -- suggested that the
litigation involved in a visitation dispute, quite apart from the outcome, may
infringe the parent's fundamental rights. This is because this kind of lawsuit
is typically a huge financial drain and an enormous emotional stress for both
parents and children -- especially in the single-parent families most often
involved.
The Washington Supreme Court had ruled that when a parent objects to visitation,
the petitioner must show the child would suffer substantial harm if the
visitation were not ordered. The U.S. Supreme Court declined to adopt that
standard at this time. However, only two Justices explicitly rejected the
"substantial harm" standard. The others left the question open. It
thus remains uncertain what sort of facts must be proved to overcome the
presumption against interference with the parent's decision. However, six
Justices stated or implied that the states may afford more protection to
nonparents who have acted as primary caregivers or "de facto parents"
for some period of time.
At least six Justices prefer that the courts address this issue on a
case-by-case basis. It is thus somewhat unlikely that state courts will use the
Supreme Court decision as a basis for invalidating their states' statutes
completely. It is far more likely that state courts will apply these statutes
more narrowly than before. In my view, that is good news, and long overdue.
It's up to parents to raise their children. Parents know that, and now the
Supreme Court has shown that it knows it as well.