Amicus Curiae Brief — Troxel v. Granville

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a Supreme Court, U.S.

| ) 5 DEC 2 1999

NO. 99-138 OS

* CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

In the Matter of the Visitation of NATALIE ANNE

TROXEL and ISABELLE ROSE TROXEL, Minors,

JENIFER and GARY TROXEL,

Petitioners,

TOMMIE GRANVILLE,

Respondent.

On Writ of Certiorari to the

Supreme Court of Washington

BRIEF OF THE COALITION FOR THE

RESTORATION OF PARENTAL RIGHTS

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT

KAREN A. WYLE

Counsel of Record

4475 N. Benton Court

Bloomington, IN 47408-9564

(812) 333-1384

IBEST AVAILABLE COPY |

TABLE OF CONTENTS

FE Ce CRB GD ctrcseccerienticsnnennenesinenmaiinnene i

CAS Oe FEF CURNPUID RUINS ccesetccnsnsennsersnntesnnenscecenonsinione iv

INTEREST OF THE AMICUS CURIAE .......... cc ceeeseeeeee l

SUMMARY OF ARGUMENT. ....cccccccccocsosscsssescsscesscesesoseess 2

PETITONIIIES cxcccccsnsecssnscssnsecavccsnnpsensintepemanneniannepaeintianseesisiiin 4

I. Custodial Parents, Whether Married or Single,

Have a Fundamental Right to Autonomy and

Privacy in Child-Rearing Decisions .................0000+ 4

A. Parental Child-Rearing is A Fundamental

Constitutional Right and Includes the Right

to Decide with Whom Child will Associate . 4

B. Intact Marriage is Not a Prerequisite of

PE SOD nenecsntansctennttincianeanensianainiiienninn 5

Il. Grandparent Visitation Statutes are Unconstitutional

Infringement on Parental Autonomy and Family

POSIT TERED cncccsecensesestnnisenctinesiiniuiineniniiaanansensiinion 7

A. State Interference with Parental Decision-

Making is Subject to Intensified Scrutiny

And Must be Presumed

EEA IRIS REISE RR 7

B. Visitation Statutes’ Significant Encroachment

on Parental Rights is Greater than

Infringements Disallowed in Previous

Parental Rights Decisions of this Court ....... 9

Il.

Grandparents Have No Traditional or

Constitutional Right to Visitation ............... 11

1. The Common Law Acknowledged

Parent's Rights and Would Not

Compel Grandparent Visitation

Over Parental Objection .................. 1]

2. There is No Basis in Constitutional

Law for a Grandparent's "Right" to

REI ESE ER 12

The States Have no Compelling, Substantial

or Legitimate Interest in Ordering

Grandparent Visitation Over a Fit

Custodial Parent's Objections ................00. 14

l. Parents are Presumed to Act in

Child's Best Interests, and Courts

Are Not Equipped to Supplant

Them in That Rolle .................00000000 14

7, Parens Patriae Power Does Not

Justify Infringement of Parental

Rights Absent Showing of Harm

ED cnttnctcctscmnniermnemeenen 17

3. Research Does Not Indicate Lasting

Positive Impact from Interaction with

Grandparents, Let Alone Harm from

Lack of Interaction .............ccceeeeee 19

a. Grandparents’ Role is Not

Necessarily a Positive One

When Parents Divorce ........ 22

Il. 4. Any Positive Roles Grandparents

Might Normally Fulfill are

Impossible when Visitation is

SD centsceneesentenintanesemsacenscsensescess 23

Grandparent Visitation Statutes are Not

A Necessary, Rational or Effective

Means of Furthering Any Permissible

Ry IR ccnntesntemnntenensenemmememnnenene: 25

l. Both Litigation and Resulting

Court Orders are Detrimental

SD sestenictevictinictsininaditcnsmnensnesne 25

2. Impact of Visitation Lawsuits and

Orders is Even More Harmful

Where Parents’ Marriage is No

FO een 27

3. Application of Statutes is

Inconsistent, Subjective, and

Frequently Discriminatory .............. 28

IIIT sccnsusscicninenenennesmmennienienigiinsemtnmementiannin 30

TABLE OF AUTHORITIES

Federal Cases

Bellotti v. Baird, 443 U.S. 622 (1979)

| 29

Bowers v. Hardwick, 478 U.S. 186 (1986) ...........0:++ 4, 8,12

Caban v. Mohammed, 441 U.S. 380 (1979) ......-sssseeessseeeees 6

Carey v. Population Services Int'l, 431 U.S. 678 (1977) . 4,8

Dunn v. Blumstein, 405 U.S. 330, 343 (1972) ....cccccceeseeseeees 8

Griswold v. Connecticut, 381 U.S. 479 (1965) ................ 4,8

Harris v. McRae, 448 U.S. 297 (1980) .......cccccccceseeeseeseneneees 8

Hodgson v. Minnesota, 497 U.S. 417 (1990) ........... 4,14, 15

In re Gault, 387 U.S. 1 (1967) ......ccccccscesseeereeeeeenees 17, 19, 28

Jehovah's Witness v. King County Hosp.,

278 F.Supp. 488 (W.D. Wash. 1967),

QTE FIO UB. FHS (UGGB) crrcccccrernscecevssccscovesssscsesessessssnsesneses 17

Meyer v. Nebraska, 262 U.S. 390 (1923) .........00+ 4,8, 10,17

McLaughlin v. Florida, 379 U.S. 184 (1964) .........cccecceeeee 8

Michael H. v. Gerald D., 491 U.S. 110 (1989) .............. 6, 12

Lehr v. Robertson, 463 U.S. 248 (1983) ......cccccccceeeeeeeeeeenes 13

Moore v. City of East Cleveland,

RU Da 12, 13

— a te

Parham, et al. v. J.R., et al., 442 U.S. 584 (1979) .. 14, 16, 25

Pierce v. Society of Sisters,

ee a SE ITED cecsersnesecseementemeenmen 4, 5, 8, 10, 17

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ........... 8

Prince v. Massachusetts, 321 U.S. 158 (1944) ............0c0000. 17

Quilloin v. Walcott, 434 U.S. 246 (1978) ......cccccccceeeeeee 6, 13

Regents v. Bakke, 438 U.S. 265 (1978) ........ccccccccsseeseseeneeeees 8

Riggins v. Nevada, 504 U.S. 127 (1992) ......cccccccccessereereeneeee 8

Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ..........00.. 4,19

San Antonio v. Rodriguez, 411 U.S. 1 (1973) .......c.ccccceeseeee 8

Santosky v. Kramer, 455 U.S. 745 (1982) ..........000. 4, 15,17

Smith, et al. v. Organization of Foster Families,

Se ey I erneentectrenrenetinnteiesmenen 6, 15

Stanley v. Illinois, 405 U.S. 645 (1972) ......ccccccceeceeee 4, 6,17

Zablocki v. Redhail, 434 U.S. 374 (1978) .....cccccccceecseeeeseeees 9

State Cases

Brooks v. Parkerson, 454 S.E.2d 769

GRD, Ee ctcnsenemnsnctetnissnnissneansenenensstemecnmemaneses 9, 17, 19, 25

Davis v. Davis, 91 S.E.2d 487 (Ga. 1956) .........ccccccceceees 4-5

Frances E. v. Peter E., 479 N.Y.S.2d 319

SU, GR, FD crersennercsseemssnseninsizenemeermnnmememene 7

In re Marriage of Matzen, 600 So.2d 487

FRED, DEED cccnsciasentenssrimsscienmentedmmntimmnenmnnents 17

Jackson v. Fitzgerald, 185 A.2d 724 (Col.App. 1962) ....... 10

Noll v. Noll, 98 N.Y.S.2d 938 (App.Div. 1950) ........ 7, 15,17

Succession of Reiss, 15 So. 151 (La. 1894) .............. 7, 10, 25

Von Eiff v.Azicri, 720 So.2d 510 (1998) .........ccccccceeeeees 26-27

Williams v. Williams, 501 S.E.2d 417 (Va. 1988) ............. 17

Constituti

Fourteenth Amendment, U.S. Constitution ...................... 2,4

Statutes

Ariz. Rev. Stat. Ann. § 25-409.C. (West Supp. 1999) ........ 28

Nev. Rev. Stat. Ann. § 125C.050.3(j)

ID NI, GUD ccvrnnsenssssnemenermnmasemsemenmesessanenenancenets 28

N.J. Stat. Ann. § 9:2-7.1.b(8) (West Supp. 1999) ............... 28

N.M. Stat. Ann. § 40-9-2.G.(1) (Michie 1999) ................0. 28

Vt. Stat. Ann. tit. 15, § 1013(b)(8) (1989)... ceeceeeenes 28

W. Va. Code Ann. tit. 14A, § 48-2B-5(b)(13)

GEEIEED GIT vecncresnerssnmnmmnnptecnnnennsiteenitiieniainnsenmmiemeenmnene 28

Wash. Rev. Code Ann. § 26.09.240(h) (West 1997) .......... 28

™

Commentary

Kathleen Bean, Grandparent Visitation: Can the

Parent Refuse?, 24 J. Fam. L. 393 (1985-86) ............... 17, 29

Nelson Blake, The Road to Reno: A History of Divorce

RG Sn GI GE etccnernctttnerseimminrerieenemenens 7

Joan Bohl, Hawk v. Hawk: An Important Step in

the Reform of Grandparent Visitation Law,

33 Journal of Family Law 55 (1994-95) .00.0...ccccceeeeeeseees 19

Joan Bohl, The "Unprecedented Intrusion": A

Survey and Analysis of Selected Grandparent

Visitation Cases, 49(1) Oki. L. Rev. 29 (1996) .. 5, 11, 12, 19

Catherine Bostock, Does the Expansion of

Grandparent Visitation Rights Promote the Best

Interests of the Child?: A Survey of Grandparent

Visitation Laws in the Fifty States, 27 Colum. J.

L. & Soc. Probs. 319 (1994) ........ccce 11, 12, 19, 26, 27, 28

Edward M. Burns, Grandparent Visitation

Rights: Is it Time for the Pendulum to Fall?,

See Cae SUE satriennncttctnctunesensnseneneecmenie 11,12

Andrew J. Cherlin & Frank F. Furstenberg, Jr.,

The New American Grandparent: A Place in

the Family, A Place Apart (1986) ............ccc0000eeee 18, 19, 20

Karen Czapanskiy, Grandparents, Parents

and Grandchildren: Actualizing

Interdependency in Law, 26 Conn. L.

ey CD ircttreenecemaptenicmernertmnsemasencinte 11, 19, 29, 30

Vii

Andre P. Derdeyn, M.D., Grandparent Visitation

Rights: Rendering Family Dissension More

Pronounced?, 55(2) Amer. J.

Orthopsychiatry 277 (1985) ........cccccccseeeeeeee 5, 11, 23, 26, 27

John Hart Ely, Democracy and Distrust (1980) ...............0+ 4

Furstenberg & Cherlin, Divided Families: What Happens

to Children When Parents Part (1991) ......ccccccccceeceeees 19, 22

Russell W. Galloway, Means-End Scrutiny in

American Constitutional Law, 21 Loy. L.A.

Soe EN, GIG EE ensreiteiebiciennseheeteintabaniniieemmnsmniensienenenian 8

Joseph Goldstein, Medical Care for the Child at Risk:

On State Supervention of Parental Autonomy,

> ED tia Es Gt UTED vesncsiinidienninaniitindiairemntencscnensenins 16

P. L. Griswold, Adultery and Divorce in Victorian

America, 1800-1900, Institute for Legal Studies (1986) .. 6, 7

Sarah Norton Harpring, Comment, Grandparent

Visitation: Is the Door Closing?,

62 U.Cinn.L.Rev. 1659 (1994) ......cccscsseseeeeees 7, 16, 25, 26

Elaine D. Ingulli, Grandparent Visitation Rights:

Social Policies and Legal Rights, 87 W. Va. L. Rev.

BO ED ccternanrresenessentipeinianianieiinineneeienen 11, 19, 20

Anne Marie Jackson, Comment, The Coming of

Age of Grandparent Visitation Rights,

43 Am. U. L. Rev. 563 (1994) ........ 10, 11, 12, 17, 23, 25, 26

Colleen Leahy Johnson, Ph.D., Active and Latent

Functions of Grandparenting During the Divorce

Process, 28(2) Gerontologist 185 (1988) ...........00 20, 21, 22

Vili

Arthur Kornhaber, M.D. & Kenneth L. Woodward,

Grandparents/Grandchildren: The Vital

IIIT iiisiihsdetieshceisninteensinnentaneietecenenmmecenes 21, 22

Michael J. Minerva, Jr., Grandparent Visitation:

The Parental Privacy Right to Raise their

"Bundle of Joy", 18 Fla. St. U. L.

Bs Se eI ciierssinisccinticntnseiinensstintenteenseamsceniteees 4, 12, 26, 27

Moore, Student Article, King v. King: The Best

Interest of the Child: A Judicial Determination

for Grandparent Visitation, 20 N. Ky. L. Rev.

SITET cintsiiuidcinesinarnebintlintariantitniatinaaesdidiniemmetnnsensenecmnesanes 18

Introduction, Ellen C. Segal and Naomi Karp,

Grandparent Visitation Disputes: A Legal Resource

Se Se ID covittitesinncecnamientetenmnttisccentensnenrtnccenesteee 26

Judith L. Shandling, Note, The Constitutional

Restraints on Grandparents’ Visitation Statutes,

86 Colum. L. Rev. 118 (1986) ..........ccceeee 5, 11, 23, 25, 26

Theresa H. Sykora, Grandparent Visitation Statutes:

Are the Best Interests of the Grandparent

Being Met Before Those of the Child?,

DD CU, Bes GR, FE Gp PO ccceccescesscesccccsccccecceseseess 15, 26, 28

Ross A. Thompson et al., Grandparents’ Visitation

Rights: Legalizing the Ties that Bind, Am.

Psychologist 1217 (Sept. 1989) .............. 5, 22, 25, 26, 27, 29

Laurence H. Tribe and Michael C. Dorf, On

Reading the Constitution (1991) .....ccccccccccceseeeseeseeereseeeenes 4

Vivian Wood and Joan F. Robertson, The

Significance of Grandparenthood, in Time,

Roles, and Self in Old Age

(Faber F. Gebetee 6. IGP) ...cccocscseccssceccesecescseeces 19, 20, 21

INTEREST OF THE AMICUS CURIAE'

At present, in all 50 states, parents may be subjected

to an intolerable intrusion upon a painful and personal

decision. The state may, upon the petition of a grandparent”,

force a parent to relinquish temporary custody of his child,

despite the parent's decision that contact or extensive contact

with that grandparent is bad for the child. This amicus

represents the interests of such parents and their families.

The Coalition for the Restoration of Parental Rights

includes members from many states. They are parents, other

family members, and friends of families affected by court-

imposed grandparent visitation. The parents have been

forced to air the most personal details of their family

histories, in the attempt to defend their decisions to limit a

grandparent's access to their children. Often those attempts

have been futile, and the parents have been forced to accede

to visitation they deem dangerous to their children's physical

or emotional well-being. Always, the process has been

expensive, invasive, exhausting, and highly stressful for

children and parents alike. For many parents, the lawsuit was

one more blow following the pain and disruptions of a

spouse's death or a divorce.

These parents have seen their own assessments of

their children's needs devalued; their own detailed knowledge

of their families' history ignored in favor of what little a

judge could learn in a hearing or two. Those more learned in

the law realize that the state has infringed their fundamental

rights. Others simply know that something has gone badly

wrong.

' The parties have consented in writing to the filing of this amicus brief.

? A few states, including Washington, allow other nonparents to file

visitation petitions as well. The arguments in this brief apply with equal

or greater force to such petitions.

SUMMARY OF ARGUMENT

Parents have a fundamental right to rear their

children, and to make the necessary decisions involved in

that most noble and most difficult task. This Court has

recognized, over many years and in many decisions, that our

Constitution as well as our traditions protect this right.

Parents’ rights to raise their children include, of necessity, the

right to decide what caretakers to trust, what associations to

encourage, what role models to endorse. All these decisions

are inevitably involved in the decision whether and when to

expose children to those outside the immediate family.

This fundamental right does not vanish when parents

divorce, nor when one parent dies. This Court has

recognized that parental rights do not depend on marital

status. The legal tradition allowing parents to exclude

grandparents arose at a time when divorce was not

uncommon, and a parent's death more common than it is

today.

Those who support court-imposed visitation usually

claim that the infringement is minimal. On the contrary, the

impact of the litigation on family privacy, the invasion of the

family home, the coerced removal of the child from the

parent's custody for days or weeks at a time and on repeated

occasions, is a greater infringement than impacts deemed

excessive in the seminal family rights cases.

In contrast to parents, grandparents have no

traditional or common-law right to visit with children where

the parents object. There is no basis for finding such a right

to be among the substantive protections of the Fourteenth

Amendment.

Absent a showing of harm, the state has no legitimate,

let alone compelling, interest in overriding a parent's decision

on who shall associate with or care for his child. Parents are

presumed to act in the best interests of their children. They

have the natural desire and the intimate knowledge necessary

to perform that task. Courts cannot possibly match the depth

of a parent's knowledge of the child's history and needs.

Moreover, professional research does not indicate that

relationships between grandparents and grandchildren

typically have any lasting beneficial impact on the children.

Whatever benefits may accrue in happier circumstances are

unlikely to result when visitation is imposed over parental

objection. There is thus no substantial state interest in

disrupting families and overruling parental decisions in order

to promote grandparent/grandchild relationships.

In fact, there is near universal consensus, even among

those who support grandparent visitation statutes, that the

litigation they foster is detrimental to the children involved.

The proceedings subject the child to trauma comparable to

divorce proceedings. The children's sense of stability is

undermined by the challenge to parental authority. The

invasive and adversarial nature of the proceedings

exacerbates whatever difficulties gave rise to the dispute.

The damage is even worse where the child's world has

already been shaken by divorce or the death of a parent. If

the goal is to strengthen familial bonds, such

counterproductive means cannot be deemed even rationally

related to that goal, let alone necessary and narrowly tailored.

Judges are not equipped to make the decisions being

thus usurped. With little guidance, little information, and

little time, judges are apt to award or deny visitation based on

their personal views or unproved assumptions. It is hardly

surprising that patterns of gender discrimination and raciai

discrimination have emerged in the application of

grandparent visitation statutes.

ARGUMENT

I. CUSTODIAL PARENTS, WHETHER MARRIED

OR SINGLE, HAVE A FUNDAMENTAL RIGHT

TO AUTONOMY AND PRIVACY IN CHILD-

REARING DECISIONS

A. Parental Child-Rearing is A Fundamental

Constitutional Right and Includes the Right to Decide

with Whom Child will Associate

"One of the first rights to be recognized as

fundamental was 'the liberty of parents and guardians to

direct the upbringing ... of children under their control.'""* It

has been reaffirmed throughout the ensuing decades, a

constant rock amidst the ebb and flow of constitutional

jurisprudence.°

A parent cannot direct the rearing of his or her

children without the authority to screen the child's

relationships with others. This authority constitutes "an

> While this Court's case law has located fundamental rights as against

the states in the Fourteenth Amendment's due process clause, the

following arguments could also be made under that amendment's

“privileges and immunities" clause. See John Hart Ely, Democracy and

Distrust (1980), at 22-30; Laurence H. Tribe and Michael C. Dorf, On

Reading the Constitution 52-54 (1991). ,

* Michael J. Minerva, Jr., Grandparent Visitation: The Parental Privacy

Right to Raise their "Bundle of Joy," 18 Fla. St. U. L. Rev. 533, 541

1991), quoting Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).

See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Griswold v.

Connecticut, 381 U.S. 479, 495-497 (Goldberg, J., concurring) (1965);

Stanley v. Illinois, 405 U.S. 645, 651 (1972); Carey v. Population

Services Int'l, 431 U.S. 678, 685 (1977); Santosky v. Kramer, 455 U.S.

745, 753 (1982); Roberts v. U.S. Jaycees, 468 U.S. 609, 617-620 (1984);

id. at 631 (O'Connor, J., concurring); Bowers v. Hardwick, 478 U.S. 186,

190-192 (1986); Hodgson v. Minnesota, 497 U.S. 417, 447 (1990).

inseparable and inalienable ingredient of the parent's right to

custody and control of a minor child." Davis v. Davis, 91

S.E.2d 487, 490 (Ga. 1956). °

Furthermore, "[t]he fundamental theory of liberty

upon which all governments in this Union repose excludes

any general power of the State to standardize its children."

Pierce v. Society of Sisters, supra, 268 U.S. at 535. For the

state to insist upon grandparent visitation over parental

objection, based on a presumption that families who welcome

grandparents will be happier families, "amounts to the

imposition of a state sanctioned ideal."’

B. Intact Marriage is Not a Prerequisite of Parental

Rights

A parent who loses his or her partner through death or

divorce does not become less of a parent. The parent's

responsibility does not diminish; the rights which accompany

that responsibility remain as well. Yet a single parent's task

is more difficult, the family more vulnerable to stress and

disruption. Governmental actions which infringe parental

° As noted infra, the common law recognizes a parent's right to decide

with whom the child will associate, and would not order grandparent

visitation over parental objection absent exceptional circumstances. The

fact that grandparent visitation statutes are currently ubiquitous in this

country does not mean that our national values and traditions embrace

such statutes. These statutes do not reflect legislative recognition of a

change in societal mores; rather, they are the result of intense political

activity by an increasingly powerful senior citizen's lobby. Andre P.

Derdeyn, M.D., Grandparent Visitation Rights: Rendering Family

Dissension More Pronounced?, 55(2) Amer. J. Orthopsychiatry 277, 282

(1985); Judith L. Shandling, Note, The Constitutional Restraints on

Grandparents’ Visitation Statutes, 86 Colum. L. Rev. 118, 121 (1986);

Ross A. Thompson et al., Grandparents’ Visitation Rights: Legalizing the

Ties that Bind, Am. Psychologist 1217, 1218 (Sept. 1989).

” Joan Bohl, The "Unprecedented Intrusion": A Survey and Analysis of

Selected Grandparent Visitation Cases, 49(1) Okla. L. Rev. 29, 33

(1996).

rights are even more devastating to a family where one parent

bears his or her responsibility unshared.

In this Court's protection of fundamental family

rights, "[t]he legal status of families has never been regarded

as controlling.” Smith, et al. v. Organization of Foster

Families, 431 U.S. 816, 845, n. 53 (1977) [hereinafter

OFFER]. The Constitution protects "the interest of a parent

in the companionship, care, custody, and management of his

or her children." Stanley v. Illinois, supra, 405 U.S at 651

(emphasis added). "The family unit accorded traditional

respect in our society, which we have referred to as the

‘unitary family,’ is typified, of course, by the marital family,

but also includes the household of unmarried parents and

their children." Michael H. v. Gerald D., 491 U.S. 110, 123,

n. 3 (1989).* By the same token, parents who have

undergone divorce or the bereavement of their spouse's

death retain their fundamental rights to raise their children

without state veto of their decisions.

Divorce has always been part of the American family

landscape. Before the American Revolution, all the colonies

allowed either divorce or partial divorce (separation).” After

the revolution, almost all the states relaxed their divorce

* Unwed fathers share in this protection, so long as they have accepted

and borne the responsibilities of fatherhood. Stanley v. /llinois, supra;

see also Caban v. Mohammed, 441 U.S. 380, 393 (1979). This Court's

decision in Quilloin v. Walcott, 434 U.S. 246, 255-256 (1978), turned on

the fact that the biological father had never had, or even sought, custody

of the child, and had never filled the parental role. The plurality opinion

in Michael H., supra, turned on the father's very limited contact with the

child and, even more, on the fact that the father was an adulterous

intruder on an otherwise ongoing family relationship. Indeed, Michael H.

emphasizes that the existing family's integrity and privacy would be

improperly invaded by any state procedure that recognized the petitioner's

claim. 491 U.S. at 124, 130-131.

° P.L. Griswold, Adultery and Divorce in Victorian America, 1800-1900

3, Institute For Legal Studies (1986).

a ee

laws, and divorce could be based on less serious

allegations.'® The divorce rate rose dramatically i in the late

nineteenth and early twentieth centuries.'' Moreover, while

divorce is even more commonplace now than in earlier

decades, the death of a parent was undoubtedly more

common in years past. Indeed, Succession of Reiss'*, the

seminal case concerning grandparent visitation, involved a

widowed father. Both the common-law and the

constitutional precedent establishing a parent's fundamental

autonomy rights developed against this backdrop. There is

therefore no basis for the argument that a parent's death or

divorce vitiates these rights.

A. mints tarnnanee 200 Sassatel Dessian: Aiba n-Makin

Is Subject t

p iu somtionel

Government intrusions on fundamental rights,

including | the right of family privacy, are subject to strict

scrutiny. A statute impinging upon a fundamental right is

'° Jd. at p. 5; Nelson Blake, The Road to Reno: A History of Divorce in

the United States 49 (1977 ed.).

'' PL. Griswold, supra, at p. 2; Blake, supra, at p. 150.

2 15 So. 151 (La. 1894). See also, e.g., Noll v. Noll, 98 N.Y.S.2d 938

(App.Div. 1950).

> Many proponents of grandparent visitation statutes point out the

fallacies in any attempt to distinguish families according to the parents’

marital status. See, e.g., Sarah Norton Harpring, Comment, Grandparent

Visitation: Is the Door Closing?, 62 U. Cinn. L. Rev. 1659, 1691 (1994);

Frances E. v. Peter E., 479 N.Y .S.2d 319, 322 (Fam. Ct. 1984).

'* Griswold v. Connecticut, supra, 381 U.S. at 497 (Goldberg, J.,

concurring); see also Bowers v. Hardwick, supra, 478 U.S. 186 at 191

(privacy rights “to a great extent are immune from federal or state

presumed to be unconstitutional. Harris v. McRae, 448 U.S.

297, 312 (1980).'> To overcome that presumption, the state

must prove that it has a compelling state interest in its

infringement of the protected right.'® It must then prove not

only that the challenged infringement is an effective means of

serving that interest, but that no less restrictive means is

available.'”

This Court has not replaced the strict scrutiny

afforded fundamental parental rights with the "undue burden"

standard. Planned Parenthood v. Casey, 505 U.S. 833

(1992), emphasized that abortion was a unique case. Even in

that admittedly unique context, a majority of the Justices

opposed the Casey plurality's use of the “undue burden"

standard, to the extent it fell below the level of strict scrutiny.

Even if the "undue burden" standard applied, however, the

judicial overthrow of the parent's decision to exclude a

grandparent constitutes a severe and undue burden on the

parental right to direct the child's upbringing and decide with

whom the child shall associate.

regulation or proscription"). Meyer and Pierce, the earliest cases

establishing parental autonomy as a fundamental right, predated the

establishment of varying layers of scrutiny in substantive due process

cases. The standard of review they employed was effectively similar to

'S See also Russell W. Galloway, Means-End Scrutiny in American

Constitutional Law, 21 Loy. L.A. L. Rev. 449, 453-455 (1988).

"© Regents v. Bakke, 438 U.S. 265, 357 (1978) (Brennan, White, Marshall

and Blackmun, JJ.); San Antonio v. Rodriguez, 411 U.S. 1, 16-17, 34, n.

33 (1973); Carey v. Population Services, supra, 431 U.S. at 686, 693, n.

15.

"” Riggins v. Nevada, 504 U.S. 127, 135 (1992); Bakke, supra, 438 U.S. at

357; Dunn v. Blumstein, 405 U.S. 330, 343, 353 (1972); see Bowers v.

Hardwick, supra, 478 U.S. at 189; Griswold v. Connecticut, supra, 381

U.S. at 497 (J. Goldberg, concurring); McLaughiin v. Florida, 379 U.S.

184, 196 (1964).

B. Visitati , ,

This Court

Proponents of court-imposed visitation typically

describe it as, at most, a "minimal" infri t of the

parent's custody and child-rearing rights.” This

characterization utterly ignores the nature of the invasion and

the factual context almost inevitably surrounding it.

Even if "grandparent visitation" meant only that the

parent must allow the grandparent into the family home to

see the grandchild, it would be a significant invasion of

family privacy and a substantial infringement on parental

child-rearing authority.'? In most cases, parents welcome

grandparents into the home, and rejoice to see the

grandparents enjoy the grandchildren's company. Any

departure from this attitude is likely to be the result of

profoundly disturbing experiences. It is not a decision likely

to be lightly made. For the state to overrule parental

decisions this weighty and this painful cannot reasonably be

characterized as a minimal infringement of the right to shape

the children's environment. For the state to force open the

doors of the family home, ushering in an outsider the parent

no longer trusts, is no small intrusion.

However, visitation orders are rarely, if ever, this

limited in nature. "Visitation" typically means that the child

must be sent to the grandparent's home for a weekend, or a

* Dicta in Zablocki v. Redhail, 434 U.S. 374, 386 (1978), indicates that

a State may impose reasonable regulations on exercise of a fundamental

right -- so long as those regulations “do not significantly interfere with

[the] decisions” underlying the exercise of the right. (Emphasis added.)

State-imposed grandparent visitation strikes directly at the heart of the

parent's decision on who shall guide and supervise his child.

° See Brooks v. Parkerson, 454 S.E.2d 769, 773, fn. 6 (Ga. 1995).

week, or even many weeks, and not just once but repeatedly.

Such visitation is in essence a temporary form of custody,

displacing for a time the custody of the parents.”” The parent,

let his fitness be unquestioned, is forced under threat of fine

or imprisonment to send his child outside his protection and

supervision. He can only hope that the parent's moral and

disciplinary guidelines will be followed, his safety rules

observed -- despite the likelihood that the grandparents’

refusal to honor such parental decisions gave rise to their

initial exclusion. The child may be unwilling or even afraid

to go; the parent is forced to reject his child's heartfelt, and

possibly reasonable, desires. The parent cannot exercise his

parental function; the parent-child relationship is invaded and

disrupted.

Finally, there is the nature of the litigation involved.

As discussed further infra at D.3., the trial court is free to --

even obligated to -- dig deep into the confidential details of

family history and family functioning, in the attempt to pin

down the elusive "best interests of the child." Family privacy

is sacrificed to the judge's mandate.”"

The government intrusions overturned in Meyer and

Pierce pale in comparison. Meyer found too great an

infringement in the state's ban on certain foreign language

lessons during school hours. That statute, "[u)nlike

grandparent visitation, . .. would not separate parents and

children who would otherwise be together. Furthermore, its

ban could be completely circumvented by providing language

2° Anne Marie Jackson, Comment, The Coming of Age of Grandparent

Visitation Rights, 43 Am. U. L. Rev. 563, 573, n. 59 (1994); see, e.g.,

Jackson v. Fitzgerald, 185 A.2d 724, 726 (Col.App. 1962).

2! See Succession of Reiss, supra, 15 So. at 152.

instruction at other times." Similarly, Pierce forbade a state

to require that a parent send his child to a public school,

rather than a private school. Even though any omissions

from the public school's curriculum could be ameliorated by

home instruction, the parent had the right to choose the

child's school environment. Where the state coerces the

parent into giving a grandparent temporary custody, the

divergence between the parent-approved environment and the

state-imposed alternative may be as great or greater -- and

the child will not be coming home after school.

dl ents Have No Traditional or

Constitutional Right to Visitation

1. The Common Law Acknowledged Parent's

Rights and Would Not Compel Grandparent

Visitation Parental Objection

There is overwhelming consensus that grandparents

have no common law right to see their grandchildren when

the parents object.”’ Courts repeatedly cited a number of

reasons against overriding the parent's decision to exclude

grandparents from the home. They recognized that parental

autonomy was a fundamental value, not to be infringed by

the courts. Granting grandparents an independent right of

visitation would, they feared, undermine parental authority.

Further, it would cause intergenerational conflict harmful to

% Bohl, The "Unprecedented Intrusion,” supra, at 64-65, n. 280.

® See, e.g., Catherine Bostock, Does the Expansion of Grandparent

Visitation Rights Promote the Best Interests of the Child?: A Survey of

Grandparent Visitation Laws in the Fifty States, 27 Colum. J. L. & Soc.

Probs. 319, 326 (1994); Edward M. Burns, Grandparent Visitation

Rights: Is it Time for the Pendulum to Fall?, 25(1) Fam. L. Q. 59, 61

(1991); Karen Czapanskiy, Grandparents, Parents and Grandchildren:

Actualizing Interdependency in Law, 26 Conn. L. Rev. 1315, 1331

(1994); Derdeyn, supra, at 277; Elaine D. Ingulli, Grandparent Visitation

Rights: Social Policies and Legal Rights, 87 W. Va. L. Rev. 295, 303,

310 (1985); Jackson, supra, at 573-574; Shandling, supra, at 118.

‘

the child. Finally, the courts realized that the coercive

measures under their command would not be an effective

means of restoring harmonious relations between parents and

grandparents.”

Courts would override the parent's decision only in

exceptional cases. "[T]hose special circumstances uniformly

included an established, close, and meaningful relationship

between the grandparent and the grandchild."”° Then some

additional factor was necessary, such as a years-long

custodial relationship, the provision in a father's will when

the father died in battle, parental unfitness, or a father's

inability to exercise his own visitation rights.7° As noted

above’’ at I.B., the death of a parent, or the parents’ divorce,

was not in itself sufficient basis for this exceptional

treatment.

2. There is No Basis in Constitutional Law

for a Grand nt's "Right" to Visitation

Given the great importance of tradition in establishing

fundamental privacy rights not explicit in Constitutional

text,”* the common-law tradition described above precludes

the existence of any substantive due process right of

grandparents to visit their grandchildren where the parents

object.””

* Jackson, supra, at 573-74; Bostock, supra, at 326.

> Burns, supra, at 62.

supra, at 62; Bostock, supra, at 327.

2” See IB. of this brief, supra pp. 6-7.

® Michael H., supra, 491 U.S. at 122-123; Bowers v. Hardwick, supra,

478 U.S. at 192; Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977) (opinion of Powell, J.).

*® Jackson, supra, at 574-575 (1994); Minerva, supra, at 556.

A parent's fundamental liberty interest in his or her

child's companionship derives in large part from the

responsibilities the parent has assumed.*” Grandparents have

even less legal responsibility for their grandchildren than

unwed fathers for their children, as grandparents generally

have no duty to help support their grandchildren financially.

Proponents of visitation statutes frequently claim

support from Moore v. City of East Cleveland, supra, 431

U.S. 494. There is no legal or logical justification for

jumping from the liberty found in Moore to the state coercion

at issue here. In Moore, a father and son chose to live with

the paternal grandmother, and the father of another grandson

consented to his son's joining the household after the

mother's death. 431 U.S. at 496-497 incl. n. 4. A small

group of blood relations freely chose to live together, with

the consent of all living parents of the children. This choice

did not challenge or infringe upon any other family rights.

Moore focused exclusively on the rights inherent in a group

of relations sharing a single household. It defended that

household against the intrusion of state or local lawmakers.

In no way did it authorize a nonresident relative's intrusion

into the household. Moore shows us how the Constitution

protects even a relatively unconventional family household

from outside interference. A fortiori, parents living with their

children have the right to such protection.

clear distinction between a mere biological relationship” -- such as

grandparent status -- "and an actual! relationship of parental

responsibility.” Quilloin v. Walcott, supra, 434 U.S. at 256, similarly

relied upon the fact that the unwed father “ha[d] never shouldered any

significant responsibility with respect to the daily supervision, education,

protection, or care of the child.... Even a father whose marriage has

broken apart will have borne full responsibility for the rearing of his

children during the period of the marriage.”

D. The States Have No Compelling, Substantial, or

Legitimate Interest i rin and nt

Visitation Over a Fit i ‘ jections

This Court has recognized that the state has no

legitimate interest in directing how members of a family shall

communicate or commune.*' As stated above, the amicus

believes this Court's precedents require strict scrutiny of

grandparent visitation laws, so that the state must show a

compelling interest that can be served no other way.

However, whether the standard be strict scrutiny or some

intermediate scrutiny, or even true rationality, grandparent

visitation statutes fail the test.

1. Parents are Presumed to Act in Child's Best

Interests, and Courts are N ui to

Supplant Them In That Role

In Parham, et al. v. J.R., et al., 442 U.S. 584, 602-603

(1979), this Court summarized in the clearest terms the

bedrock legal principle that parents are presumed to act in

their children's best interests.

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. . . . That some parents "may

at times be acting against the interests of their

children" . . . creates a basis for caution, but is hardly

a reason to discard wholesale those pages of human

experience that teach that parents generally do act in

the child's best interests. ... The statist notion that

3! See Hodgson v. Minnesota, supra, 497 U.S. at 452.

governmental power should supersede parental

authority in all cases because some parents abuse and

neglect children is repugnant to American tradition.

Similarly, in Hodgson v. Minnesota, supra, 497 U.S.

at 450, this Court noted that "the State has no legitimate

interest in questioning one parent's judgment . . . or in

presuming that the parent who has assumed parental duties is

incompetent to make decisions regarding the health and

welfare of the child."*”

It takes only a little thought to see that it must be so.

How many decisions must a parent make every day, every

week, every year, in raising a child? Who can count how

many of those decisions will change a child's life for good or

ill, and to how great an extent? Every parent knows how

terrifying, yet how ever-present and inescapable, is the

responsibility to make decision after decision for the child's

welfare. If state governments are to begin second-guessing

ome decisions, where shall they begin? and where will it

end‘

*? Hodgson reaffirmed "the parental right ... to assess independently, for

their minor child, what will serve that child's best interest." /d. at 453. See

also OFFER, supra, 431 U.S. at 841, n. 44, noting that child's interests

are usually represented in litigation by parents or guardians; Santosky v

Kramer, supra, 455 U.S. at 760: ". . . the State cannot presume that a

child and his parents are adversaries."

*® See Noll v. Noll, supra, 98 N.Y.S.2d at 940, warning of the difficulties

should judges “teil parents how to bring up their children." It should be

noted that No// involved a single parent (widow). Almost one-third of all

families do not fit the "two married parents with their biological children"

mold. Theresa H. Sykora, Grandparent Visitation Statutes: Are the Best

Interests of the Grandparent Being Met Before Those of the Child? , 30(3)

Fam. L. Q. 753, 754 (1996). If only families where two married parents

live with their natural children are to retain their fundamental

constitutional protection, the states will be busy indeed, superintending

the conduct and reviewing the decisions of all those "second class"

parents who bear their responsibilities without a spouse present.

[L]aw does not have the capacity to supervise the

delicately complex interpersonal bonds between

parent and child. As parens patriae the state is too

crude an instrument to become an adequate substitute

for parents. The legal system has neither the

resources nor the sensitivity to respond to a growing

child's ever-changing needs and demands. It does not

have the capacity to deal on an individual basis with

the consequences of its decisions or to act with the

deliberate speed required by a child's sense of time

and essential to its well being. Even if the law were

not so incapacitated, there is no basis for assuming

that the judgments of its decisionmakers about a

particular child's needs would be any better than (or

indeed as good as) the judgment of his parents. Only

magical thinking will permit the denial of these self-

evident, but often ignored, truths about the limits of

law.

A parent's decision to cut off or reduce contact with a

grandparent is the last act in a years-long drama. "[{A] single

court hearing is generally insufficient to resolve the

background issues that have taken years to develop."*> In

Parham's words, "neither state officials nor federal courts are

equipped to review such parental decisions." 442 U.S. at

604.

** Joseph Goldstein, Medical Care for the Child at Risk: On State

Supervention of Parental Autonomy, 86 Yale L. J. 645, 650 (1977).

** Harpring, supra, at 1678.

ye ee >

2. Parens Patriae Power Not Justi

Infringement of Parental Rights Absent

Showing of Harm or Unfitness

The state may step in to protect children from abuse,

neglect, a parent's refusal to supply essential medical

treatment, and other such direct threats to the child's

welfare.*° However, the state's parens patriae powers’’ do

not "trump" constitutional protections of fundamental

liberties. The terms "welfare" and "best interests" are not

synonymous: before the state may intervene, there must be a

threat of harm to the former, rather than merely an

opportunity to contribute to the latter.*®

"To protect parental autonomy, the Supreme Court

has developed a threshold test for the imposition of the state's

parens patriae interests [citing, inter alia, Meyer, Pierce, and

Stanley]. Generally, the state cannot interfere with the

parents’ right to raise a child in a particular manner unless the

parents’ practice endangers the child."°? Where a parent has

not been found unfit, the state "cannot presume that the

parent and child are adversaries," or that their interests

diverge. Santosky, supra, 455 U.S. at 760, 767, n. 17. "The

King County Hosp., 278 F.Supp. 488, 504-506 (W.D. Wash. 1967), aff'd

390 U.S. 598 (1968). See Kathleen Bean, Grandparent Visitation: Can

the Parent Refuse?, 24 J. Fam. L. 393, 426 (1985-86): "Absent

extraordinary circumstances which seriously affect the welfare of the

child, the state has no basis for displacing or intruding on parental

control."

7 This Court has described the meaning of the phrase "parens patriae" as

"murky." Jn re Gault, 387 U.S. 1, 16 (1967).

8 See, e.g., Brooks v. Parkerson, supra, 454 S.E.2d at 772-773, incl. n.

5; Williams v. Williams, 501 S.E.2d 417, 423-424 (Va. 1988) (Kinser, J.,

concurring in part and dissenting in part); Noll v. Noll, supra, 98

N.Y.S.2d. at 940-941; see also In re Marriage of Matzen, 600 So.2d 487,

489-490 (Fla.App. 1992).

*? Jackson, supra, at 571.

‘best interests of the child’ test is triggered after the finding of

the failure of the parent-child relationship."*° Thus, absent

either the continuing danger posed by an unfit parent, or

some extraordinary danger arising from the practices of

otherwise fit parents (e.g., refusal to allow vital medical

treatment), the state's parens patriae role does not override

parental control.

The main factor in determining how often children

see their grandparents is not the status of the parent's

marriage, or even the parent's attitude, but geographical

distance.*' May the states, under the rubric of parens patriae,

decree that parents must reside within a fixed distance from

grandparents? More generally, if the state may override

parental decisions at will in pursuit of a child's "best

interests," without showing the parents unfit or the child

endangered, then the state may invade family privacy to

direct the child's life in innumerable ways. "It behooves one

to wonder as to what other arenas the legislature will deem

parents unworthy to evaluate the best interest of their

children."** What other "benefits" will the state step in to

ensure? and at whose behest? State law could mandate

prescribed diets and exercise regimes for children, from

which parents departed at their peril. Legislators who

cherished memory of their time in Boy Scouts could require

all parents to send their children to Scout camp for two weeks

every summer. Since wealth buys many advantages, children

could be reassigned to wealthier families.* If the states,

“ Bean, supra, at 426.

*! Andrew J. Cherlin & Frank F. Furstenberg, Jr., The New American

Grandparent: A Place in the Family, A Place Apart 108, 117, 191 (1986).

“ Moore, Student Article, King v. King: The Best Interest of the Child: A

Judicial Determination for Grandparent Visitation, 20 N. Ky. L. Rev.

815, 828 (1993).

“ The last example may seem wildly unlikely, but this very practice was

relatively common during the early nineteenth century, a time when the

courts stretched the notion of parens patriae authority beyond all

rather than the parents, are the guardians of the best interests

of children with fit parents, then "we have embarked upon a

slow de[s]cent into judicial supervision of family life which

has neither legal limits nor a logical end."

3. Research Does Not Indicate Lasting

Positive Impact from Interaction with

Grandparents, Let Alone Harm from Lack of

Interaction

State courts that have upheld grandparent visitation

statutes typically presume that grandparents play a unique,

important and beneficial role in the lives of their

grandchildren. However, as noted in Roberts v. Jaycees,

supra, 468 U.S. at 628, this Court has "repeatedly

condemned legal decisionmaking that relies uncritically on

such assumptions." In fact, "[t]here are few research findings

to support the presumption in grandparent statutes that the

grandparent relationship is uniquely significant to either

grandchildren or grandparents."*

The landmark study of sociologists Cherlin &

Furstenberg revealed that greater involvement by

grandparents had no ascertainable positive effect on the

historical limits. See Joan Bohl, Hawk v. Hawk: An Important Step in the

Reforr: of Grandparent Visitation Law, 33 J. Fam. L. 55, 69 (1994-95).

Broad readings of parens patriae were increasingly criticized, and were

curtailed in this Court's decision in /n re Gault, supra, 387 U.S. at 16, 18.

“ Bohl, The “Unprecedented Intrusion,” supra, at 80.

‘> Ingulli, supra, at 305; see also Czapanskiy, supra, at 1330; Brooks v.

Parkerson, supra, 454 S.E.2d at 773. There is relatively little research on

the actual impact of grandparents on grandchildren. Bostock, supra, at

362, 368; Vivian Wood and Joan F. Robertson, The Significance of

Grandparenthood, in Time, Roles, and Self in Old Age 278, 288 (Jaber F.

Gubrium ed., 1976); Furstenberg & Cherlin, Divided Families: What

Happens to Children When Parents Part 94 (1991).

behavior of grandchildren.*° This was true regardless of

family circumstances, whether or not the nuclear family life

had been disrupted by circumstance. Nor do grandchildren

typically incluce grandparents when listing members of their

family, or regard them as sources of guidance.*’ As jor

transmission of valies, grandparents transmitted values to

grandchildren primarily through their impact on the

intermediate generation, the parents, rather than directly.“

Few grandparents believe they should even attempt to

transmit moral values to their grandchildren.*”

Grandparents tend to overstate the significance of

their grandparental role compared to the actual level of their

involvement: "While grandparents verbally attribute a great

deal of significance to the role in discussions and interviews,

the behavior of most grandparents in the role is relatively

limited."*° Given that many courts emphasis the importance

of grandparents in passing on family history and customs, it

is noteworthy that fewer than half the grandparents in one

study reported that they had told their grandchildren about

family history and customs, or had taught them a special skill

“° Cherlin & Furstenburg, New American Grandparent, supra, at 178,

181-183. In fact, grandchildren with more involved grandparents actually

had more behavioral problems, though this may have been the reason for

the greater involvement rather than a result of it. /d. at 181, 183. Other

researchers have found similar results. Ingulli, supra, at 300.

*” Cherlin & Furstenberg, supra, at 169, 182. Similarly, when

respondents of various ages were asked to identify the sources of

knowledge on how to get along in life, and to name those who help

children grow into happy and competent adults, none of the respondents

mentioned grandparents. College students appeared as likely to feel close

to aunts, uncles and cousins as to grandparents. Wood & Robertson,

supra, at 287.

“* Cherlin & Furstenberg, supra, at 178.

*” Colleen Leahy Johnson, Ph.D., Active and Latent Functions of

Grandparenting During the Divorce Process, 28(2) Gerontologist 185,

189 (1988).

such as sewing, cooking, fishing, or a craft.°' Most

grandparents seek to satisfy their own and their

grandchildren's need for fun and pleasure, rather than taking

on any weightier role. They treat the relationship as a

friendship with little emphasis on the generational

difference.”

Even Kornhaber and Woodward””, often cited by

proponents of visitation statutes, state that "the overwhelming

majority" of grandparents in their study "expect to receive

more affection from the grandchildren than they themselves

are willing to give."** While Kornhaber and Woodward

dwell at length on the roles a grandparent can conceivably

fill,®° they acknowledge that few grandparents actually fill

many of these roles. Ccandparents tend to be absorbed in

their own lives and concerns, and their grandchildren

perceive as much.’ Kornhaber and Woodward also

acknowledge that the distance between grandparents and

grandchildren results primarily from the grandparents’ own

choices of lifestyle or role. "The overwhelming majority of

*! Wood & Robertson, supra, at 301-302.

* Johnson, supra, at 187-189.

* Arthur Kornhaber, M.D. & Kenneth L. Woodward,

Grandparents/Grandchildren: The Vital Connection (1985). These

authors assert that those few children who do have close relationships

with at least one grandparent are more emotionally secure and have less

fear of old age. They also claim that the bond between grandparent and

grandchild, at least at its inception, is second only to that between parent

and child. However, their assertions are based on a study with "several

methodological weaknesses," and other researchers have been unable to

duplicate their findings. Ingulli, supra, nn. 28 and 29 and accompanying

text.

Kornhaber & Woodward, supra, at 29.

* Id. at 38, 167-179.

altruistic persons, accept and even prefer a less than intimate relationship

with their grandchildren." /d. at 102.

” Jd. at 41, 88, 98.

grandparents . . . elected not to become closely involved with

their grandchildren."™

In fact, the most common way in which grandparents

indirectly affect their grandchildren is through their

relationships with their adult children, the child's parents.°”

When grandparents can and do haul their adult children into

court to force grandparent visitation, this indirect effect on

the grandchildren becomes a profoundly negative one.

- ; ;

Mee py ey Positive One WI

Parents Divorce

Grandparents are most satisfied with their role when

the lives of their children and grandchildren are relatively

free from problems.” Faced with the divorce of the parents,

most grandparents tend to withdraw, rather than stepping in

with some unique form of assistance.°' Where grandparents

do assist their recently divorced adult children, the parents

“all too frequently" report that the grandparents interfered too

much with the parent's authority or intruded into the private

affairs of parent and child.

Certainly, some grandparents react to the parents’

divorce in constructive ways. However, others see it as an

opportunity to reassert control over their adult children's

** Id. at 88; see also at 78-79, 86, 98. Other research has indicated that

than with their relationships with grandchildren. Ingulli, supra, at 301.

* Thompson et al., supra, at 1219.

® Johnson, supra, at 190.

*' Kornhaber & Woodward, supra, at 40-41.

Furstenberg & Cherlin, Divided Families, supra, at 55.

lives, while yet others respond by “attacking their child's

former spouse or even attacking their own child."™

4. Any Positive Roles Grand Mig!

Normally Fulfill are Impossible when

Visitation is C

One commentator® lists the "important roles"

that grandparents might” play in the life of a child (here

renumbered for clarity):

(1) Grandparents can "maintain the identity of the

family";

(2) Grandparents can mitigate disturbing events in

the outside world;

(3) Grandparents can provide a stabilizing influence;

(4) Grandparents can be watchdogs for abuse or

(5) Grandparents can serve as mediators or

arbitrators between the parents and the grandchildren;

(6) Grandparents can aliow grandchildren to build

connections with family history.

neglect

Where grandparent visitation is without the parent's consent,

however, these roles are either impossible to fulfill, unlikely

to succeed, or almost inevitably distorted. "Maintenance of

family identity" will become a conflict between incompatible

family identities. A grandparent not welcome in the

® Jd. See also Shandling, supra, at 122, n. 19, making the same

observation in a broader context.

“ Derdeyn, supra, at 285. It is sometimes argued that divorcing parents

will let their animosity toward their spouses color their feelings toward

the spouse's parents. As Derdeyn suggests, this concern must go both

ways. Parents of the noncustodial spouse may view the custodial spouse

as the enemy, and be more likely both to precipitate conflict and to take

that conflict to court.

* Jackson, supra, at 567, n. 20.

* As noted above, research has not supported the argument that

grandparents typically serve these functions.

: 23

household will be introducing further "disturbing events,"

rather than mitigating the pain of existing disturbances.

Obviously, a grandparent who is hauling the family into court

will not be providing a "stabilizing influence." The

aggravated distrust between grandparent and parent will

greatly interfere with the grandparent's ability objectively to

assess whether the grandchildren are abused or neglected;

indeed, the grandparent will have a potent motive to

exaggerate or imagine any facts that would transform the

obstructing parent into the "bad guy." A grandparent who

has forced his or her way into the family circle with the help

of a judge is the last person who could serve as a mediator or

arbitrator between parents and grandchildren. Finally, as

with "family identity," any connections the grandparent could

build with family history will be hindered by the

grandchildren's conflict of loyalties, and by the bitterness of

the parents whose authority has been overthrown.

[A] range of factors influence the degree to which

benefits [from ongoing relationships with

grandparents] can be realized by children in both

stressed and unstressed families. ... Foremost. . . is

the quality of the relationship that exists between

grandparents and the child's own parents. If the

relationship is harmonious and supportive, this opens

avenues for direct and indirect benefits that

grandparents can offer their grandchildren. If not,

these potential benefits are likely to be much more

limited (indeed, children may suffer from extended

contact with grandparents if significant

intergenerational conflict exists). Consequently, most

of the obstacles that grandparents may encounter in

their efforts to support their grandchildren cannot

readily be resolved through litigation that makes the

child's parents and grandparents adversaries in a

courtroom.°”

D. Grandparent Visitation Statutes are Not a

+ + —— es Permissible State I

7 ——

——~ Ty. ee ' | to Child

The common law is replete with warnings that using

judicial process to coerce a family into accepting grandparent

visitation is ill-advised. "[C]ourts were concerned that an

intergenerational conflict would only hurt the development of

the child involved."™ The judge in the first reported United

States grandparent visitation case cautioned that "the

intervention of the tribunals would ... render the dissensions

of the family more pronounced by delivering them to the

public." Succession of Reiss, supra, 15 So. at 152; see also

Brooks v. Parkerson, supra, 454 S.E.2d at 773.

Legal scholars, psychologists and sociologists have

pointed out the many ways that grandparent visitation

statutes harm the children they are purportedly designed to

serve, and their families as well. First, there is the harm

done by the litigation itself. These are emotionally

wrenching, heated, adversarial conflicts,’ of an intensity and

*’ Thompson et al., supra, at 1219.

* Jackson, supra, at 574; see also Thompson et al., supra, at 1217.

°° These include commentators who believe that one or another kind of

grandparent visitation statute is desirable and/or constitutional despite

these damaging effects. See, e.g., Shandling, supra, and Harpring, supra,

as detailed infra at notes 71-73.

” See Parham v. JR. et al., supra, 442 U.S. at 610, on the inappropriate

nature of “adversary contest[s]" that challenge "whether the parents’

motivation is consistent with the child's best interests."

traumatic impact comparable to divorce proceedings.’' The

litigation strains the family's economic resources.“ The

intrusiveness of the proceedings and the challenge posed to

the parent's authority causes the child extreme anxiety,

confusion and dislocation.’? The detailed and public airing

of family secrets and disagreements, in a process whose

adversarial nature magnifies every disagreement, leaves a

residue of anger, humiliation and distrust which greatly

reduces the chances of a ful reconciliation between

parent and grandparent.” The grandparent's power to

interfere in the parent's family tends to sabotage the natural

process by which parents of adult children relinquish their

parental status to the next generation.”* Then, if the

grandparent's petition is granted, the child is trapped for years

in an “emotional minefield,"”° the innocent victim of long-

term loyalty conflicts.”’

As the Florida Supreme Court suggested in finding

Florida's grandparent visitation statute unconstitutional, even

if such statutes served a compelling state interest,

“alternatives such as providing mediation services,

counseling, or other non-mandatory (and non-adversarial)

”' Introduction, Ellen C. Segal and Naomi Karp, Grandparent Visitation

Disputes: A Legal Resource Manual, pg. 2 (1989); Derdeyn, supra, at

284, 286; Harpring, supra, at 1677; Sykora, supra, at 761; Jackson,

supra, at 588, incl. n. 150.

” Bostock, supra, at 355.

” Minerva, supra, at 537; Shandling, supra, at 124; Harpring, supra, at

1677.

™ Derdeyn, supra, at 286 ; Harpring, supra, at 1677. Petitioners

acknowledge this reality in their Brief for Petitioners at p. 6, n. 10, stating

that a “public airing" of the parties’ disagreements as to why visitation

ceased "could complicate relations between the individuals involved."

> Derdeyn, supra, at 284.

” Sykora, supra, at 761; Thompson et al., supra, at 1220.

oo?

a —_—— «=

services" would be more appropriate and narrowly tailored to

serving that interest.”

2. Impact of Visitation Lawsuits and Orders is

Even More Harmful Where Parents' Marriage

is No Longer Intact

Divorce rocks a child's world. The death of a parent

is even worse. When a child and his family are enduring

these most traumatic of changes, can there be a worse time

for events that frighten and anger both parent and child? that

distract the parent from meeting the child's special needs?

Grandparent visitation lawsuits make it even harder for the

child to cope.” The litigation drains away financial

resources already strained by widowhood or divorce.*° The

parents inevitably see the lawsuit as a further threat to the

family's integrity; this increases the child's emotional turmoil,

and undermines his sense of security and stability just when

it needs reinforcement.*' Thus, "{tJhis legislation cannot

rationally be considered to alleviate situations for children

during difficult times."

Nor can the trial court, be it never so wise, avoid this

damage by the manner in which it considers the facts. The

damage has been done before the trial court plays that role.

Finally, it must be remembered that children of

divorced parents are likely to have one formal visitation

™ Von Eiff v. Azicri, 720 So.2d 510, 517, fn. 4 (1998).

” Thompson et al., supra, at 1220; Derdeyn, supra, at 285.

*° Bostock, supra, at 356. Grandparents are often better positioned to

bear the costs of litigation. Thompson et al., supra, at 1220; see also

Minerva, supra, at 557. This may allow the grandparents to coerce the

parents into an undesirable settlement to avoid ruinous litigation

expenses. Thompson et al., supra, at 1220.

* Derdeyn, supra, at 285.

"Id.

schedule to cope with already. If a state enables grandparents

to insist on visitation as well, the disruptions of the child's

home life -- and the child's insecurity and disorientation --

will be multiplied. Divorced parents, especially if they have

remarried, must perform a difficult juggling act, trying to

accommodate the needs of their children and the desires of

family members both old and new. The heavy-handed

intrusion of the state is anything but helpful.

3. Application of Statutes is Inconsistent,

Subjective, and Frequently Discriminatory

Grandparent visitation statutes typically offer judges

little guidance beyond the phrase "best interests of the

child." Even the minority of statutes that include specific

factors for the court to consider generally add a "catch-all"

under which the court is to consider any other unenumerated

factors which might somehow be relevant.“ "Determining

the best interests of the child in grandparent visitation cases

is a difficult task and one that courts are ill-equipped to

make."** As this Court noted in Jn re Gault, supra, 387 U.S.

at 19, fn. 25: "The judge as amateur psychologist . . . is

neither an attractive nor a convincing figure." Judges "may

rely on subjective value judgments and their own intuitive

assessments of family functioning: criteria that are applied

parochially and unreliably and that may vary widely on a

as Sykora, supra, at 761.

“See, e.g., Nev. Rev. Stat. Ann. § 125C.050.3(j) (Michie Supp. 1999);

N.J. Stat. Ann. § 9:2-7.1.b(8) (West Supp. 1999); N.M. Stat. Ann. § 40-9-

2.G.(1) (Michie 1999); Vt. Stat. Ann. tit. 15, § 1013(b)(8) (1989); W. Va.

Code Ann. tit. 14A, § 48-2B-5(b)(13) (Michie 1999); Wash. Rev. Code

Ann. § 26.09.240(6)(h) (West 1997); cf. Ariz. Rev. Stat. Ann. § 25-

409.C. (West Supp. 1999) ("all relevant factors, including [listed ones]").

* Bostock, supra, at 367.

case-by-case basis."*° The fact that judges are likely to be

grandparents or contemporaries of grandparents increases the

likelihood of a bias in favor of grandparents’ desires.

A judge attempting to apply the "best interest"

standard must grasp at every factual detail he can uncover to

resolve this dilemma. "Thus, apart from constitutional

problems of using the best interest of the child standard

without a prerequisite threshold showing of harm, the

vagueness and subjectivity of such a standard lends itself to

an invasion of family privacy which is abhorrent to our

current society."®

Most disturbing of all, the application of grandparent

visitation statutes tends to show racial and gender

discrimination. Where the custodial parent is a mother, her

objections to grandparent visitation are more likely to be

discounted, and the court is more likely to ignore animosity

between parent and grandparent. When custodial fathers

object, courts are more likely to deny grandparent

visitation.** African-American grandparents are more likely

to have close relationships with their grandchildren, and to

act as substitute parents for them. "Of all grandparents, then,

they are the ones whose absence is most likely to hurt their

as Thompson et al, supra, at 1220. As Justice Stevens noted in his

concurring opinion in Bellotti v. Baird, 443 U.S. 622, 655-656 (1979)

(Bellotti II):

[T]he only standard provided for the judge's decision is the best

interest of the minor. That standard provides little real guidance

to the judge, and his decision must necessarily reflect personal

and societal values and mores whose enforcement ... --

particularly when contrary to [the party's] own informed and

reasonable decision -- is fundamentally at odds with privacy

interests underlying the constitutional protection afforded to

[that] decision.

*” Bean, supra, at 444,

“* Czapanskiy, supra, at 1333-1334, 1343-46.

grandchildren. Nonetheless, they are among the least favored

petitioning grandparents."*”

Grandparent visitation statutes exacerbate family

dissension, traumatize children, and tend to result in

inconsistent and inequitable judgments. Even if the evidence

supported a substantial or compelling state interest in

"strengthening familial bonds," a means so counter-

productive as this cannot be deemed rationally related to that

goal, let alone "necessary" or "narrowly tailored" thereto.

CONCLUSION

For the reasons stated above, the amicus urges this

Court to affirm the decision of the Washington Supreme

Court, and in doing so to make clear that fit parents, whether

married, single, divorced or widowed, retain their

fundamental right to guide their children to adulthood.

Respectfully submitted,

A aby

Karen A. Wyle

Attorney for Amicus Curiae,

Coalition for the Restoration of

Parental Rights

® Id. at 1341.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.