In the media frenzy there has been so much mis-information about the Supreme Court Ruling on Troxel v. Granville I decided to write this and probably will include something like it as the article in the news letter.
Paul-AZ Coalition for the Restoration of Parental Rights makes these comments:
In ruling on Troxel v. Granville Justice Sandra Day O'Conner delineated a new due process standard for parents. Due Process standards as applied to individual cases do not deal with the constitutionality of the individual statutes being invoked but rather deal with the procedure by which the Judge conducts a trial to produce a fair and impartial hearing. Thus evidence is
thrown out if it is the result of an improper search, convictions are thrown out if the arresting officers fail to inform the person being arrested of their right to counsel, and so on.
In this ruling the court now must give deference to the parent. Justice O'Conner stated in criticizing the trial court and Washington's law, "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." What kind of deference must the court give the parent? Justice O'Conner's opinion goes on to state, "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 best decisions concerning the rearing of that parent's children." Basically the Supreme Court has stated that this deference to the parent must be so substantial that in anything but exceptional circumstances (not defined is what is exceptional and what is not but most likely this would require allegations that add up to the parent not being fit) the parent's opinion, not the trial judge's opinion, prevail.
In truth the court did not do more than affirm the Washington Supreme Court's declaration that their law was unconstitutional without a finding of harm. However by imposing a new due process standard court actions if not individual laws are impacted throughout the country. Most states have no requirement to hold the parent's opinion in special deference as outlined by
Justice O'Conner. Thus many, many existing trial court orders have been implemented over the vigorous objections of parents. These orders are now all unconstitutional due to the trial court's failure to give deference to the parent. What do states do about the future? They can elect to modify their statutes, as Utah has done, to make it clear that the parent's opinion
on what is in the best interest takes precedence over guardian ad litems, evaluation psychologists, judges and other judicial professionals. Whether Utah's law meets this standard is yet to be determined and even if it does it may well be misapplied by judges given too little deference to the parent's opinion.
Another option for state legislators is to not change the laws and simply leave this as a court procedure much like what has been done in illegal search and seizure cases. Even if the law is changed individual rulings are subject to challenge based on how much deference is given the parent's opinion. The court, in affirming the Washington high court's opinion, effectively stated that the requirement of a finding of harm as a condition of constitutionality is one acceptable way to provide reference to the parent. This recalls Williams v. Williams where the Virginia high court implemented a finding of harm requirement on their trial court prior to the court even considering what is in the best interests of the child.
What does this practically mean for parents. First of all 90% or more of existing grandparent visitation orders across the land are likely invalid. The only class of order where this might not be true are those where the order was negotiated, under the threat of court imposed orders. In these cases the argument that grandparents likely will put forward is that the parent's opinion was given deference where the parents will argue that the negotiation was conducted under threat of court imposed orders and therefore their opinion was supressed. In these cases exactly what instructions were given by the Judge prior to negotiation may well be key in establishing whether the O'Conner due process standard was or was not met. In future
cases it seems that the only route left to grandparents is to attempt to prove the parents are unfit. There is a worry here that this will, like divorce cases in the 50's, make these actions very much more acrimonous than they are today. False CPS claims and other attempts to manufacture evidence are likely to increase placing additional pressures on the other institutions of the child protection network. Clearly substantial litigation will take place over the next few months to determine how each state will deal with this ruling and how readily state courts will accede to the United States Supreme Court's authority.
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