# Amicus Curiae Brief — Troxel v. Granville

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0324%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 57

## Text

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,
v.
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

iv

— 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
Vv

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

vi

™

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

ix

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.

10

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.

11

‘

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.

© Bohl, The "Unprecedented Intrusion," supra, at 30-31, n. 9; Burns,
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.

12

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.

© Lehr vy. Robertson, 463 U.S. 248, 259-260 (1983), emphasized “[t}he
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.”

13

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.

14

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.

15

[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.

16

.
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

© Prince v. Massachusetts, 321 U.S. 158 (1944) ; Jehovah's Witness v.
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.

17

‘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

18

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).

19

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).

© Wood & Robertson, supra, at 301.

20

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.

© Id. at 37-39, 64-65. "[MJost grandparents, including some otherwise
altruistic persons, accept and even prefer a less than intimate relationship
with their grandchildren." /d. at 102.

” Jd. at 41, 88, 98.

21

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.

22

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

24

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."

25

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.

© Jackson, supra, at 580.

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

26

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.

27

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.

28

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.

29

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

Co

® Id. at 1341.

30

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0324%3A10. Public record. Not legal advice.