Amicus Curiae Brief — Troxel v. Granville

S ne Court. U.S

13S FILED

—— > 1999

No. 99-138 OFFICE OF THE CLERK

— 4

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,

Vv.

TOMMIE GRANVILLE,

Respondent.

On Writ oF CERTIORARI TO THE

SUPREME CouRT OF WASHINGTON

BRIEF OF NORTHWEST WOMEN’S LAW CENTER,

CONNECTICUT WOMEN’S EDUCATION AND LEGAL

FUND, NATIONAL CENTER FOR LESBIAN RIGHTS, AND

THE WOMEN’S LAW CENTER OF MARYLAND, INC.

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

Catuy J. ZAVIS

Counsel of Record

NORTHWEST WOMEN’S LAW CENTER

Attorney for Amici Curiae

119 South Main Street

Suite 410

Seattle, Washington 98104

(206) 682-9552

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES .00.0.........cccccececceceeees iil

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

EEE nt On es Re EE 3

I. |THE WASHINGTON STATE THIRD

PARTY VISITATION STATUTE, WHICH

ALLOWS FOR VISITATION BY ANY

PERSON AT ANY TIME, IS

UNCONSTITUTIONAL AS APPLIED IN

ee vtieinhiichintecinienicsahehitetiansiiseahiaiasteiumaen 3

THIRD PARTY VISITATION STATUTES

SUCH AS WASHINGTON’S ARE

CONSTITUTIONAL WHEN APPLIED TO

INDIVIDUALS WITH DE FACTO

PARENTAL RELATIONSHIPS ...000000....cc0c0c00e. 6

NARROWLY CIRCUMSCRIBING COURT

ACCESS BY THIRD PARTIES IS

ESSENTIAL TO PROTECT PARENTAL

AUTONOMY

A. LIMITED APPLICATION OF

VISITATION STATUTES TO DE

FACTO PARENTS MINIMIZES

JUDICIAL USURPATION OF

PARENTAL DECISION-MAKING... 12

CONCLUSION

BROAD APPLICATION OF

THIRD PARTY VISITATION

STATUTES WILL FORCE

PARENTS TO DEFEND AGAINST

UNDESERVING APPLICANTS

AND RESULT IN HARMFUL

AIRING OF FAMILY DISPUTES..... 15

STATUTES THAT GIVE COURTS

UNFETTERED DISCRETION

OFTEN RESULT IN GENDER-

BIASED DECISIONG..................s00008 17

ASSUMPTIONS ABOUT THE

BENEFITS OF GRANDPARENT

VISITATION FREQUENTLY

RESULT IN INTRUSIONS UPON

PARENTAL AUTONOMY ................ 20

BROAD APPLICATION OF

THIRD PARTY VISITATION

STATUTES CREATES AN

ECONOMIC HARDSHIP FOR THE

PARENT OPPOSING THE

VRS S PCB Wes e erevesscoseneensemmensnvmnnnntasenen 23

TABLE OF CITED AUTHORITIES

Cases

Barry v. Barrale,

598 S.W.2d 574 (Mo. App. 1980) ...............ccccceeeeees

Benner v. Benner,

248 P.2d 425 (Cal. App. 1952) ..cccccccecccsceeessseesesueeen

Campbell v. Campbell,

896 P.2d 635 (Utah App. 1995)......ccccccccessseecseeeeesees

Cleveland Board of Education vy. LaFleur,

a

Cockrell v. Sittason,

500 So. 2d 119 (Ala. Civ. App. 1986) .......cccecceseseve

Commonwealth ex rel. Miller v. Miller,

478 A.2d 451 (Pa. Super. Ct. 1984)..00000..0.... ee.

Commonwealth ex rel. Zaffarano v. Genero,

ee

Drennen v. Drennen,

557 N.E.2d 149 (Ohio App. 1988)............c.ee-ssveeoeee

E.N.O. v. L.M.M.,

711 N.E.2d 886 (Mass. 1999) ..0.00.......cccccccseeeseeeeees

Frances E. v. Peter E.,

479 N.Y.S.2d 319 (N.Y. App. Div. 1984) ........ccc...-.

a 3

wo 8, 10

Herndon v. Tuhey,

GE 5, 20

Hughes v. Hughes,

463 A.2d 478 (Pa. Super. 1983) .............ccceccccceeseeecceeeeees 16

In re Custody of H.S.H.-K,

ee 8

In re Custody of Smith,

a ae Se I BI crccecercrcunsssnnciansincininitaniaiiiiauniinas 13

In re Marriage of Weddel,

553 N.E.2d 213 (Ind. Ct. App. 1990) ............ccccccceeseereeees 18

Johansen v. Lanphear,

464 N.Y.S.2d 301 (N.Y. App. Div. 1983) ............cccccceeee 18

King v. King,

Se ED, Cee ncrennnnicensninmsenmeninntinninanein 20, 22

Kudler v. Smith,

643 P.2d 783 (Col. Ct. App. 1981) ........cccccceceeeeeeeeeneeees 18

Lehr v. Robertson,

a siisirirrprrintcninineniiiiimeiamiimandiiinell 8,9

Michael H. v. Gerald D..,

Ce ee, ar tieinierticiiniiiiniiisinintitintatianidaieaidbaieanes 7,9

Moore v. City of East Cleveland,

GS Fae Ge Pecienarnesetecsemnnianienintiinliaiiiin 7, 8,9

Olepa v. Olepa,

391 N.W.2d 446 (Mich. Ct. App. 1986) ...0..........cccceeeees 19

iv

Pierce v. Society of Sisters,

| arene ene 3

Prince v. Massachusetts,

TEE Ee ees ere veen Teen Ee 3,4

Quilloin v. Walcott,

ETERS enenneerienrae nn eee 4,9

Roberts v. Ward,

I 20, 21

Roe v. Wade,

ES SE ea nero ee ner eer 4

Santosky v. Kramer,

Cannan entail naaa ae iiiiatiotiniindiaaeialies 3

Sightes v. Barker,

684 N.E.2d 224 (Ind. App. 1997) .00..........cccccceeeeeeeeeeeeees 20

Smith v. Organization of Foster Families,

8 TS eae aE 1]

Stanley v. Illinois,

EE EEE ee mon eEEN EN &

State v. Wanrow,

i a neiecaletasieciniciesiaailaes 19

Constitutional Authority

Fourteenth Amendment ..................ssssccccssccssssssssssssseees 3, 22

Vv

Statutory Authorities

ele NES cenrseerecenmeseneenemnienpmnaiinns 12

ee 2, 23, 26

Other Authorities

American Bar Association Annual Meeting Provides

Forum for Family Law Experts, 13 Fam. L. Rep.

ne 7

American Bar Association, Standing Committee on the

Delivery of Legal Services, Responding to the Needs

of the Self-Represented Divorce Litigant | (1994).....24

Katherine T. Bartlett, Rethinking Parenthood as an

Exclusive Status: The Need for Legal Alternatives

When the Premise Of the Nuclear Family Has

Failed, 70 VA. L. Rev. 879 (1984) .00.......ccccccceeeeeeeeees 4

Kathleen Bean, Grandparent Visitation: Can the Parent

Refuse ?, 24 U. Louisville J. Fam. L. 393 (1985-86) ... 14

Joan C. Bohl, The “Unprecedented Intrusion”: A

Survey and Analysis of Selected Grandparent

Visitation Cases, 49 Okla. L. Rev. 29 (1996)......... 5, 20

Karen Czapanskiy, Grandparents, Parents and

Grandchildren: Actualizing Interdependency in

Law, 26 Conn. L. Rev. 1315 (1994)......... 17, 18, 19, 22

Developments in the Law — Sexual Orientation and the

Law, 102 Harv. L. Rev. 1508 (1989) 20.0.0... eeeeeeee 7

vi

Final Report of the California Judicial Council Advisory

Committee on Racial and Ethnic Bias in the Courts

SUE TO ecnisecsitsttaphiidenssmnteiiinaniantnsiameuiaimiineeneeeemen 24

Steven H. Miles and Allison August, Courts, Gender

and the “Right-to-Die”, 18 Law, Medicine and

en PI ccrtscesnsdsnsensteernnniannenmmemenen 19, 20

Barbara L. Shapiro, “Non-Traditional” Families in the

Courts: The New Extended Family,11 J. Am. Acad.

EE 6

U.S. Department of Labor, Women’s Bureau, Facts on

Working Women (visited Dec. 7, 1999)

<http://www.dol. gov/dol/wb/public/wb-pubs> ........... 24

vil

This amicus curiae brief is submitted in support of

the Northwest Women’s Law Center, et al. By letters

already filed with the Clerk of the Court, Petitioners and

Respondent have consented to the filing of this brief.

INTEREST OF AMICI CURIAE '

Amici are public interest legal rights and advocacy

organizations that seek to protect and advance the legal

rights of women.”

This case is important to Amici because it involves a

Constitutional issue of first impression: whether parental

autonomy includes the right of parents to decide who their

children will visit and under what circumstances. Amici

acknowledge the importance of parental autonomy to

ensure that parents can decide how to raise their children

free from governmental interference. Amici recognize this

need to protect parental rights because Amici have too often

seen the rights of single mothers, who have few resources,

trampled when an ex-boyfriend or a grandparent seeks to

force visitation. Amici also recognize that governmental

' Individual statements of interest of each amicus are attached

hereto as Appendix A.

? Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the Amici Curiae, their members,

or their counsel, made a monetary contribution to the preparation and

submission of this brief.

interference may at times be necessary to protect the rights

of non-biological co-parents, such as non-biological lesbian

mothers, to maintain relationships with their children.

Amici believe these individuals play a parent-like role in

the child’s life that is entitled to constitutional protection.

The courts must protect and balance the legitimate interests

of each where the best interest of the child is at stake.

SUMMARY OF ARGUMENT

The Washington Supreme Court properly concluded

that Washington’s third-party visitation statute, R.C.W.

26.10.160(3), is unconstitutional when applied to visitation

petitions brought by third parties who do not have a de

facto parental relationship with the child. A de facto parent

is a person who has actually parented the child for a

considerable time. See infra, p. 10-11. De facto parents

differ from third parties who may play a significant but

lesser role in a child’s life. When third party visitation

statutes are applied to third parties who are not de facto

parents, the statute unconstitutionally interferes with

parental autonomy.

Visitation petitions brought by de facto parents raise

parental interests similar to those arising in custody and

visitation disputes between biological parents. In such

cases, interference with the custodial parent’s autonomy

may be justified by the de facto parent’s competing rights.

When the Washington third party visitation statute is

applied to those relatively limited cases involving de facto

parents, the “best interest of the child” standard properly

balances the competing parental interests and the statute is

constitutional.

ARGUMENT

I. THE WASHINGTON STATE THIRD PARTY

VISITATION STATUTE, WHICH ALLOWS FOR

VISITATION BY ANY PERSON AT ANY TIME, IS

UNCONSTITUTIONAL AS APPLIED IN THIS CASE.

This Court has long recognized the constitutionally

protected liberty interests of parents “to direct the

upbringing and education of children under their control.”

Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925);

Prince v. Massachusetts, 321 U.S. 158 (1944). Parenting

decisions are among the liberties protected by the Due

Process Clause of the Fourteenth Amendment. Santosky v.

Kramer, 455 U.S. 745, 753 (1982); Cleveland Board of

Education v. LaFleur, 414 U.S. 632, 639-40 (1974).

Indeed, this right is so significant that it continues to exist

even when parents lose custody of their children to the

state. Santosky v. Kramer, 455 U.S. at 754. Constitutional

protection of parental autonomy strengthens the family “by

encouraging parents to raise their children in the best way

they can by making them secure in the knowledge that

neither the state nor outside individuals may ordinarily

intervene.” Katherine T. Bartlett, Rethinking Parenthood

as an Exclusive Status: The Need for Legal Alternatives

When the Premise of the Nuclear Family Has Failed, 70

VA. L. Rev. 879, 879-80 (1984).

The state may interfere with parental autonomy

only through the exercise of its police or parens patriae

powers. In Prince v. Massachusetts, 321 U.S. 158, this

Court recognized there are circumstances in which the state

as parens patriae has a compelling interest in protecting the

safety of children and that this interest may justify the

state’s interference with parental autonomy. However, for

such interference to be constitutional, it must be “narrowly

drawn” to meet the state interest. Roe v. Wade, 410 U.S.

113, 155 (1973).

The broad application of third party visitation statutes

such as Washington’s unconstitutionally infringes upon the

constitutional rights of parents to the “custody, care and

nurture of [their] child.” Quilloin v. Walcott, 434 U.S. 246,

255 (1978), quoting Prince v. Massachusetts, 321 U.S. at

166. The state lacks a compelling interest to infringe upon

parental autonomy where the third party petitioner is not a

de facto parent. Requiring a parent (whether legal or de

facto) to provide visitation with a third party forces a

significant intrusion into parental autonomy. “{I}t is the

day-to-day contact between parents and child, and the

relationships grounded in that ordinary round of daily life

which demand the Court’s attention.” Joan C. Bohl, The

“Unprecedented Intrusion”: A Survey and Analysis of

Selected Grandparent Visitation Cases, 49 Okla. L. Rev.

29, 51 (1996). “Allowing the government to force upon an

unwilling family a third party, even when the third party

happens to be a grandparent, is a significant intrusion into

the integral family unit.” Herndon v. Tuhey, 857 S.W.2d

203, 212 (Mo. 1993) (Covington, J., dissenting). Such an

intrusion usurps the parent’s role in directing the child’s

upbringing.

Because the state lacks a compelling interest in

forcing parents to defend visitation petitions against third

party petitioners who are not de facto parents,

Washington’s statute is unconstitutional if applied to permit

such intrusions.

Il. THIRD PARTY VISITATION STATUTES SUCH

AS WASHINGTON’S ARE CONSTITUTIONAL

WHEN APPLIED TO INDIVIDUALS WITH DE

FACTO PARENTAL RELATIONSHIPS.

Nineteenth century notions of family and

parenthood do not adequately reflect the reality of

contemporary society or the needs of children and their

families. Within the last three decades, this country

witnessed “a dramatic erosion of the traditional concept

that the ‘family’ is a heterosexual man and woman, who

bear and raise children inside the legal institution of

marriage.” Barbara L. Shapiro, “Non-Traditional”

Families in the Courts: The New Extended Family, 11 J.

Am. Acad. Matrim. Law. 117 (1993). Gone are the days of

old-fashioned family configurations comprising one mother

and one father who are married to one another for the rest

of their lives. In today’s society, men and women marry,

divorce, and remarry. They cohabit and raise children

together without ever marrying. Grandparents raise their

grandchildren when one or more of the parents is

unavailable. Lesbian and gay partners live together and

raise their children together without the ability to marry,

even if they would choose to do so.”

> Family Pride Coalition, an organization whose members are

individual and families including gay and lesbian parents and blended

For more than two decades, this Court has

recognized that the constitutional notion of “parent” is not

limited strictly to biological or adoptive parents. In fact,

the Constitution protects those who have actually parented

the child, whether biologically related to the child or not.

“Ours is by no means a tradition limited to respect for the

bonds uniting the members of the nuclear family. The

tradition of uncles, aunts, cousins, and _ especially

grandparents sharing a household along with parents and

children has roots equally venerable and equally deserving

of constitutional protection.” Moore v. City of East

Cleveland, 431 U.S. 494, 504 (1977) (emphasis added).

“Decisions concerning child rearing, which [many cases]

have recognized as entitled to constitutional protection,

long have been shared with grandparents or other relatives

. who may take on major responsibility for the rearing

of the children.” Jd at SOS (emphasis added). See also,

Michael H. v. Gerald D., 491 U.S. 110, 123, n.3 (1989) (the

Constitution protects “the household of unmarried parents

and extended families, estimates there are approximately two million

gay and lesbian parents raising three to five million children under the

age of eighteen. See also, Developments in the Law — Sexual

Orientation and the Law, 102 Harv. L. Rev. 1508, 1629 (1989)

(estimating that three million lesbian and gay men in the United States

are parents) (citing American Bar Association Annual Meeting

Provides Forum for Family Law Experts, 13 Fam. L. Rep. (BNA)

1512, 1513 (Aug. 25, 1987)).

and their children”); Lehr v. Robertson, 463 U.S. 248

(1983) (de facto parent is entitled to substantial due process

protection, but mere existence of biological link does not

merit equivalent protection); Stanley v. Illinois, 405 U.S.

645, 652 (1972) (noting that bonds arising in unmarried

families are “often as warm, enduring, and important as

those arising within a more formally organized family

unit”); E.N.O. v. LM.M., 711 N.E.2d 886 (Mass. 1999),

cert. denied L.M.M. v. E.N.O., -- S.Ct. --, 1999 WL 783931,

68 USLW 3323, 68 USLW 3326 (U.S. Mass. Nov. 15,

1999) (court has equity power to award visitation to non-

biological lesbian mother who is de facto parent; visitation

does not violate biological mother’s constitutional right to

parental autonomy); Jn re Custody of H.S.H.-K, 533

N.W.2d 419 (Wis. 1995) (non-biological lesbian mother

may seek visitation with child she co-parents if she can

establish a de facto parent relationship and that biological

mother is denying visitation).

In Moore and other noted cases acknowledging the

rights of de facto parents to assert parental rights, this Court

reviewed the nature of the relationship between the de facto

parent and the child(ren), not solely the presence or absence

of a biological link. When the de facto parent held himself

out as the “natural” parent, this Court acknowledged the

—_-_-

and accorded it

constitutional protection. Michael H. v. Gerald D., 491

U.S. 110 (1989); Lehr v. Robertson, 463 U.S. 248 (1983);

Quilloin v. Walcott, 434 U.S. 246 (1978). Even when the

de facto parent knew she was not the natural parent, but had

taken a parent-like role in the child’s life, this Court held

that the Constitution protects such relationships. Moore v.

City of East Cleveland, 431 U.S. 494 (1977).

Conversely,

importance of the _ relationship

where biological parenthood is

unaccompanied by actual caregiving, biology will not

solely determine the parent's constitutional interest in

parental decision-making. See, Michael H. v. Gerald D.,

491 U.S. 110 (1989) (constitutional to deny biological

father parental rights when de facto father lived with

biological mother and raised child as his own); Quilloin v.

Walcott, 434 U.S. 246 (1978) (same); Lehr v. Robertson,

463 U.S. 248 (1983) (distinguishing mere biological tie

from actual exercise of parental responsibility). Biological

parenthood alone is not determinative of parenthood, and

non-biological parents who have established a de facto

parental relationship are entitled to constitutional protection

as parents.

Recognizing a de facto parent's rights to visitation

despite the objections of the biological parent does not

impermissibly interfere with parental autonomy;

furthermore, that recognition advances important

constitutional rights of the de facto parent and the child.

The recognition of de facto [sic] parents is in

accord with notions of the modern family.

An increasing number of same gender

couples ... are deciding to have children.

It is to be expected that children of

nontraditional families, like other children,

form parent relationships with both parents,

whether those parents are legal or de facto

[sic]. Thus, the best interests calculus must

include an examination of the child's

relationship with both his legal and de facto

[sic] parent.

E.N.O. v. L.M.M., 711 N.E.2d at 891.

Amici propose the following standard to determine

de facto parenthood to ensure that states do not

impermissibly interfere with parental autonomy and to

balance the rights of individuals who have established a

parent-like relationship with the child. A de facto parent

will be able to demonstrate:

(i) a significant mutually affectionate bond

with the child; and

(ii) a relationship enduring over

considerable time that is significant in light

of the child’s age, developmental level and

other circumstances; and

10

(iii) a bond formed for reasons primarily

other than financial compensation, and with

the consent of the legal parent or as a result

of the unavailability or inability of any legal

parent to perform caretaking functions; and

(iv) the performance of ongoing caretaking

functions, such as attending to the child’s

daily needs, assisting with or arranging the

child's educational needs, assisting the child

to develop and maintain interpersonal

relationships, acting in the child’s welfare,

assisting with the child’s behavioral

development and_ disciplinary _ needs,

arranging for the child’s health care needs.

Where an individual has played a parent-like role in

a child’s life and continuation of that relationship serves the

best interest of the child, third party visitation statutes such

as Washington’s satisfy the state’s compelling interest in

protecting the welfare of the child and use the narrowest

means necessary to do so. See, Smith v. Organization of

Foster Families, 431 U.S. 816, 844 (1977) (“the

importance of the familial relationship, to the individuals

involved and to the society, stems from the emotional

attachments that derive from the intimacy of daily

association . .. .”).

In determining the best interest of the child,

Washington laws require courts to consider abuse, domestic

violence, alcohol and drug abuse and other causes for

11

restricting residential time. See, R.C.W. 26.09.191(2)(a)".

To ensure that parents have the ability to raise concerns

regarding the de facto parent’s ability to safely parent the

child, the same considerations should apply to determine

visitation petitions between legal parents and de facto

parents. When third party visitation statutes such as

Washington's are narrowly applied to de facto parents who

establish that visitation is in the child’s best interest, they

are constitutional.

Il. NARROWLY CIRCUMSCRIBING COURT

ACCESS BY THIRD PARTIES IS ESSENTIAL TO

PROTECT PARENTAL AUTONOMY.

Absent a showing of de facto parenthood,” the state

may not constitutionally require that the parent provide

visitation with the child, even if the visitation were to be in

* The pertinent section of the statute is provided for the

convenience of the Court as Appendix B.

* Amici take no position in this case as to whether an

individual who has not established a de facto parefit felationship with a

child, but nonetheless has established a substantially significant

relationship with the child, should be permitted to seek visitation.

However, Amici believe that the court should award visitation in those

cases only if the third party can meet narrowly crafted and distinct

factors that the court must consider beyond mere best interest of the

child. The application of a higher substantive standard to third parties

is necessary to protect the parent's constitutional right to parental

autonomy and to overcome problems inherent in the broad application

of these statutes, as explained in section III, pp. 12 - 25. This question

is not before the Court today.

12

the child’s best interest. As the Washington Supreme Court

found, allowing visitation under such circumstances would

force parents to defend against any third party petitioners

who sought to maintain contact with a child. Jn re Custody

of Smith, 969 P.2d 21 (Wash. 1998). Limited application of

third party visitation statutes to de facto parents minimizes

the problems inherent in a statute that gives courts

unfettered discretion. This limitation decreases judicial

usurpation of parental decision-making and the harmful

airing of family disputes. Application to de facto parents

also limits potential risks to domestic violence victims and

their children and minimizes the gender bias in decision-

making. Finally, courts’ failure to properly analyze the

relationship between the third party and child, and the

economic hardship to single mothers opposing visitation,

buttress the argument for narrow application of third party

visitation statutes.

il.A. LIMITED APPLICATION OF VISITATION

STATUTES TO DE FACTO PARENTS MINIMIZES

JUDICIAL USURPATION OF £4PARENTAL

DECISION-MAKING.

Parental decision-making must be protected from

interference by those whose relationships with the children

are characterized by occasional visits, communications or

13

overnight stays. These relationships do not demonstrate the

level of care, participation and affection required to permit

courts to override parental decision-making.

Some parents and judges will not care if

children are physically disciplined by the

grandparents; some parents and judges will

not care if the grandparents teach children a

religion inconsistent with the parents’

religion; some judges and parents will not

care if the children are exposed to or taught

racist beliefs or sexist beliefs; . . . But some

parents and some judges will care. Between

the two, the parents should be the ones to

choose not to expose their children to certain

people or ideas, and without a showing that

this deprivation has harmed the child in

some way beyond a per se disassociation

with the grandparents, the family’s private

decision-making should not be tried in a

court of equity. Instead, the grandparents’

request and justification for visitation should

be subject to scrutiny and should be proved

necessary to the welfare of the child.

Kathleen Bean, Grandparent Visitation: Can the Parent

Refuse ?, 24 U. Louisville J. Fam. L.393 (1985-86).

This case demonstrates the validity of Amici’s

argument that application of visitation statutes should be

limited to individuals who can establish a de facto parental

relationship with a child. Here, the mother preferred the

children not have overnight visits at their grandparents’

14

home; indeed, prior to their father’s death, the children had

never done so without their father being present. Pet. Brief

at 2-3. By requiring that the mother provide overnight

visits despite her own beliefs about what is in her children’s

best interest, the court imposed its notion of best interest of

the child in place of the mother’s.

Application of third party visitation statutes to those

individuals who demonstrate a de facto parental

relationship would limit judicial override of parental

decision-making to those cases where competing parental

rights justify the state’s compelling interest in interfering

with parental autonomy.

Il. B. BROAD APPLICATION OF THIRD

PARTY VISITATION STATUTES WILL FORCE

PARENTS TO DEFEND AGAINST UNDESERVING

APPLICANTS AND RESULT IN HARMFUL AIRING

OF FAMILY DISPUTES.

Allowing third party petitions by persons without a

de facto parental relationship will force parents to defend

against petitions by undeserving applicants, such as an

abusive ex-partner who exploits the court system to

continue his pattern of control over his victim. A batterer

deprived of the opportunity to physically abuse his victim

will wreak emotional and financial havoc on his victim.

When third party visitation statutes are permissively

15

applied, the law empowers the batterer to manipulate the

court system. The batterer may convince his parents to

seek visitation with his child so he can seize visitation

beyond that awarded in the divorce proceedings. See,

Drennen v. Drennen, 557 N.E.2d 149 (Ohio App. 1988)

(court upheld denial of visitation to paternal grandparents

who had close relationship with violent father and had

allowed father unsupervised access to child in violation of

agreement); Hughes v. Hughes, 463 A.2d 478 (Pa. Super.

1983) (appellate court upheld denial of visitation to

paternal grandmother, believing it was a ruse and “an

attempt to gain through the back door what is not possible

by the front”). Whether the grandparents are ultimately

successful in their efforts is irrelevant: the mother will have

already suffered unwarranted economic and emotional

hardship in defending her parenting decisions in court.

Additionally, third party visitation statutes that are

broadly applied open the door to the harmful airing of

family discord. A hypothetical case: two parents agreed

between themselves that the maternal grandparents would

never have unsupervised or unlimited visitation with their

grandchild because of the mother’s molestation by the

grandfather. The mother never disclosed this abuse to her

parents or other family members. Upon the mother’s death,

16

the maternal grandparents sought unsupervised visitation.

The broad application of third party visitation statutes such

as Washington’s would force the father to divulge the

sexual molestation to protect his child. While a court might

ultimately deny visitation, the hearing itself would be

harmful. See, Pet. Brief at 6, n.10 (Petitioners concur that

even in the instant case the public airing of family disputes

would complicate relations between the individuals

involved).

Il. C. STATUTES THAT GIVE COURTS

UNFETTERED DISCRETION OFTEN RESULT IN

GENDER-BIASED DECISIONS.

Broad application of third party visitation statutes

that are not limited to those third parties who have

established a de facto parental relationship with the child

also implicitly allow gender biases to influence trial court

decisions. Petitioners would have this Court believe that

trial judges apply these broad statutes reasonably and

consistently. Pet. Brief at 13-17. In fact, what too often

determines the outcome is the gender of the parent

opposing the visitation. Karen Czapanskiy, Grandparents,

Parents and Grandchildren: Actualizing Interdependency

in Law, 26 Conn. L. Rev. 1315, 1333-34 (1994). “In

defining the best interests of the child in the custody of a

17

single mother, courts frequently ignore a mother’s opinion

about the people with whom the child should spend time.”

Id. at 1334.

When analyzing whether to allow visitation over a

parent’s objection, courts defer less to mothers than to

fathers. Courts frequently decide that the mother cannot

deny the grandparents access to the children based on the

courts’ belief that such relationships are important. This is

true even when there is animosity between the parties. In

too many cases, courts fail to scrutinize the extent of the

grandparents’ involvement in the child’s life.° Id. at 1335-

36.

In contrast, courts show deference to fathers,

allowing visitation over a father’s objections only if the

grandparents cohabited or were closely involved with the

child. Even when the grandparents have been significantly

involved in the child’s life, courts still deny visitation if the

animosity between the father and the grandparents is

deemed too great.’ Id. at 1343.

° See, Johansen v. Lanphear, 464 N.Y.S.2d 301 (N.Y. App.

Div. 1983); Commonwealth ex rel. Miller v. Miller, 478 A.2d 451 (Pa.

Super. Ct. 1984); Barry v. Barrale, 598 S.W.2d 574 (Mo. App. 1980).

” See, Commonwealth ex rel. Zaffarano v. Genaro, 455 A.2d

1180 (Pa. 1983); Kudler v. Smith, 643 P.2d 783 (Col. Ct. App. 1981);

Cockrell v. Sittason, 500 So. 2d 119 (Ala. Civ. App. 1986); Benner v.

Benner, 248 P.2d 425 (Cal. App. 1952); Jn re Marriage of Weddel, 553

18

Thus the purportedly gender-neutral legal

framework operates in a gender-biased fashion.* This often

results in male judges expropriating women’s choices.

“Gender is fundamental to views of sexual difference in our

culture; judges cannot be free of gender associations.”

Steven H. Miles and Allison August, Courts, Gender and

the “Right-to-Die,” 18 Law, Medicine and Health Care 85,

92 (1990). Given the potential for gender bias in these

cases, this Court should prohibit the broad application of

visitation statutes to individuals who cannot demonstrate a

de facto parental relationship with the child.

N.E.2d 213 (Ind. Ct. App. 1990); Olepa v. Olepa, 391 N.W.2d 446

(Mich. Ct. App. 1986).

* The gender bias identified by Czapanskiy, while

disturbing, is not surprising when other “neutral” standards are

analyzed with a critical eye. For example, the Washington State

Supreme Court, years before other states recognized the Battered

Women’s Syndrome, assessed whether in self-defense claims the

“reasonable man” standard was sufficiently neutral to encapsulate a

women’s perspective of “reasonable”. In its decision, the court found

that the “neutral” standard did not incorporate the perspectives of

women. State v. Wanrow, 559 P.2d 548 (Wash. 1977). Thus, the court

recognized that legal standards appearing neutral at first often work

against women in application.

A similar outcome was found in a study of right-to-die cases

conducted by Dr. Steven Miles. Steven H. Miles and Allison August,

Courts, Gender and the “Right-to-Die”, 18 Law, Medicine and Health

Care 85 (1990). In that study, Dr. Miles identified 22 appellate court

decisions in which courts were asked to reconstruct the wishes of

legally incompetent individuals. Although all the individuals had said

essentially the same thing to family and friends regarding their desires

if ever in a vegetative state, Dr. Miles found that the courts applied the

19

Il. D. ASSUMPTIONS ABOUT THE BENEFITS

OF GRANDPARENT VISITATION FREQUENTLY

RESULT IN INTRUSIONS UPON PARENTAL

AUTONOMY.

In assessing a request for grandparent visitation,

courts often articulate assumptions that all grandchildren

benefit from a relationship with their grandparents and that

visitation is in the best interest of the child.” These beliefs

buttress courts’ opinions that grandparent visitation statutes

are constitutional. Courts essentially heighten the rights of

grandparents to constitutional stature. This reasoning

makes it difficult for parents to successfully challenge a

request for grandparent visitation.

By assuming that visitation by grandparents is

automatically in the best interest of children, courts

unwittingly shift to the parent opposing visitation the

burden of showing that such visitation is not in the child’s

best interest. Joan C. Bohl, The “Unprecedented

Intrusion”: A Survey and Analysis of Selected Grandparent

“neutral” evidentiary standards differently to men and to women. /d. at

87.

* See, Frances E. v. Peter E., 479 N.Y.S.2d 319, 323 (N.Y.

App. Div. 1984); Commonwealth ex rel Miller v. Miller, 478 A.2d 451,

455 (Pa. Super. 1984); King v. King, 828 S.W.2d 630, 632 (Ky. 1992);

Herndon v. Tuhey, 857 S.W.2d 203, 210 (Mo. 1993); Campbell v.

Campbell, 896 P.2d 635, 643 (Utah App. 1995); Sightes v. Barker,

684 N.E.2d 224, 230-31 (Ind. App. 1997); Roberts v. Ward, 493 A.2d

478, 482 (N.H. 1985).

20

Se

Visitation Cases, 40 Okla. L. Rev. at 78. Instead, courts

should analyze the nature of the relationship between the

Only individuals who

demonstrate a) a de facto parental relationship with the

third party and the child.

child and b) that visitation is in the best interest of the child

should be awarded visitation over a parent’s objection.

Equal application of third party visitation statutes

to third parties and to de facto parents can often lead to

absurd results. Awarding visitation to the first person to

court may foreclose the opportunity of latecomers who

establish a de facto parental relationship from obtaining

visitation. Ultimately, parents will be unable to juggle the

multiple demands visitation places on the family’s life and

courts will be forced to deny or reconfigure visitation for

the wrong reasons.

As families and society evolve, “the nuclear family

on which children in the past relied has become less

common; ‘[mJore varied and complicated family situations

arise aS divorces, and decisions not to marry, result in

single-parent families, [and] as remarriages create step-

families’, making relationships with other family members

all the more important.” Pet. Brief at 9, quoting Roberts v.

Ward, 493 A.2d 478, 481 (N.H. 1985). Petitioners’

observation demonstrates the competing and never-ending

21

demands that may be placed on parents attempting to direct

and control their own and their children’s lives. Forcing

parents to defend visitation attempts by any family

members who play a role in or believe they are important in

the child’s life will “result in chaos for parents as they

attempt to rear their children.” King v. King, 828 S.W.2d

630, 635 (Lambert, J., dissenting).

While the grandparent-grandchild relationship may

be important and pleasurable, it does not inherently rise to

the level of significance in the child’s life to warrant

intrusion into constitutionally protected parental autonomy.

Only where the grandparent has played a de facto parenting

role in the child’s life is the relationship entitled to

constitutional protection. Czapanskiy, 26 Conn. L. Rev. at

1324.

Petitioners claim that the Fourteenth Amendment

was never intended to prevent other family members from

participating in family life, and that many communities,

foster participation in family life by grandparents and other

family members. Pet. Brief at 30-32 (noting such

participation in Asian-American and Native American

families). The Constitution cannot prohibit communities

from voluntarily relying on extended family decision-

making and participation. 'n fact, Amici’s analysis would

22

allow those family members in these communities who

have played a de facto parental role in the child’s life to

seek visitation. Amici are keenly aware of this concern

because of their work with African-American grandmothers

raising their grandchildren in the indefinite or permanent

absence of the intervening generation. With these

communities in mind, Amici submit that application of the

Statute is constitutional only when applied to de facto

parents. Application in this fashion will usually allow

those extended family members with de facto parental

relationships to seek, and when appropriate, obtain

visitation while minimizing improper intrusions upon

parental autonomy based on false assumptions of the

overriding importance of — grandparent-grandchild

relationships.

Il. E. BROAD APPLICATION OF THIRD

PARTY VISITATION STATUTES CREATES AN

ECONOMIC HARDSHIP FOR THE PARENT

OPPOSING THE VISITATION.

Broad application of statutes such as R.C.W.

26.10.160(3) requires parents to defend third party

visitation requests regardless of the relationship between

23

the third party and the child. Even if the parent ultimately

prevails, the financial cost to the family is enormous, as are

the emotional and psychological costs to all parties,

including the children.

The cost of litigation disproportionately burdens

single mothers, who have a higher rate of poverty than

single fathers or intact families." Yet because most states

require a break-up in the family before grandparent or third

party visitation rights are triggered, it is most often single

parents who are forced to defend these cases. The single

parent must then use her limited resources and hire an

attorney to defend her parental autonomy and parenting

decisions Or must appear in court pro se. In 1992, in

Seattle, Washington, at least one party appeared pro se in

76% of family law cases.'' Parents who represent

'° In 1991, the number of families maintained by women

below the poverty level was ten times as high as those maintained by

men, and families maintained by women had the lowest median income

of all family types ($16,692), compared to $40,995 for married couples

and $28,351 for families maintained by men. See, U.S. Department of

Labor, Women’s Bureau, Facts on Working Women (visited Dec. 7,

1999) <hitp://www.dol.gov/dol/wb/public/wb-pubs>.

'' See, American Bar Association, Standing Committee on the

Delivery of Legal Services, Responding to the Needs of the Self-

Represented Divorce Litigant 1, 8, Table 2 (1994). Seattle, WA is not

alone in the high percentage of pro se litigants in family law cases.

This statistic is repeated in urban cities across the country. /d. (on

average, in 1992, 72% of divorce cases in sixteen urban cities had at

least one party appear pro se and when only men had an attorney,

women appeared pro se 83% of the time). See also, Final Report of the

24

themselves usually fare the worst in court, because they do

not understand the legal system and they are ill-equipped to

adequately represent their interests. Thus, even if the facts

of a particular case do not support an award of visitation, a

pro se litigant is less likely to succeed in averting a harmful

result. Anything short of the narrow application of third

party visitation statutes will result in economic hardship for

single mothers.

Bias in the Courts 140, 165-166 (1977) (85% of pro se litigants are

women ).

25

CONCLUSION

Amici respectfully request that this Court hold that

Washington's third party visitation statute R.C.W.

26.10.160(3) is unconstitutional as applied in this case.

The statute is constitutional if narrowly applied to

individuals who a) have a de facto parental relationship

with the child and b) can establish that visitation is in the

best interest of the child. This application of the statute

will shift courts’ focus from their own biases and beliefs,

and from usurpation of parent’s decisions, to the proper

constitutional analysis and respect for principles of parental

autonomy as well as recognition of alternative families, all

of which are essential to our society.

Respectfully submitted,

Cathy J. Zavis

Counsel of Record

Northwest Women’s Law Center

119 S. Main St., Ste. 410

Seattle, WA 98104

(206) 682-9552

Attorney for Amici Curiae

December 10, 1999

26

APPENDIX A

STATEMENTS OF INTEREST OF AMICI CURIAE

The Northwest Women’s Law Center is a non-

profit public interest legal organization dedicated to

advancing the legal rights of women through litigation,

education, legislative advocacy and the provision of legal

information and referral services. The Law Center provides

these services to women throughout Washington State and

the Pacific Northwest. Since its founding in 1978, the Law

Center has been actively involved in family law issues. The

Law Center has worked to protect the parental autonomy

rights of single parents, particularly pro se litigants and

domestic violence victims, and to protect the best interest of

children. The Law Center also fights to ensure that

individuals in long-term committed relationships, regardless

of sexual orientation or marital status, receive equitable

treatment under the law. Additionally, the Law Center

works to protect the rights of grandparents raising

grandchildren. Because of our work with these diverse

communities, the Law Center understands the complexity of

the issues in this case and is uniquely qualified to address

the Court.

The Connecticut Women’s Education and Legal

Fund (CWEALEF) is a statewide, nonprofit women’s rights

Organization dedicated to empowering women, girls and

their families to achieve equal opportunities in their personal

and professional lives. CWEALF was founded in 1973 and

has a membership of over 1,400 individuals and

organizations. CWEALF seeks to join this brief as amicus

curiae because of our long history of work on family law

issues.

The National Center for Lesbian Rights (NCLR)

is a national, non-profit legal organization dedicated to

securing and protecting equal rights for lesbians and their

families. Since 1977, NCLR has advocated on behalf of

lesbian parent families and their children in the arenas of

child custody and visitation, adoption and foster parenting,

and health care and other family-related benefits. NCLR

has a special commitment to ensuring that children who are

born and raised in lesbian parent families are afforded the

same rights and protections as all others, including the right

to freedom from interference by relatives and other third

parties, and the right to maintain a relationship with the

child's de facto parent in the event of the biological parent's

2-A

death or incapacity or if the relationship between the parents

dissolves.

The Women’s Law Center of Maryland, Inc.

(WLCMD), founded in 1971, is a nonprofit, public interest,

membership organization of attorneys and community

members that works to establish fair treatment for women

and children under our laws. The WLCMD has worked to

protect and preserve the rights of women and children by

educating the public and the judiciary, monitoring

compliance with the law, by seeking to change unjust laws

and unjust lawmaking, and by implementing innovative legal

services programs to pave the way to systematic change.

The WLCMD has dedicated substantial effort to reforming

family law and has been recognized for its innovative direct

services and effective advocacy for families via its Kaufman

Center for Family Law. The WLCMD is participating as an

amicus in this case because of the WLCMD’s support for a

result that will protect the rights of parents who have played

substantial roles in children’s lives over time, both biological

and de facto, from third parties whose involvement in

children’s lives does not rise to level of parent and whose

interests should not interfere with parental autonomy.

3-A

APPENDIX B

Section 26.09.191(2)(a) of the Revised Code of

Washington provides in pertinent part,

The parent’s residential time with the child

shall be limited if it is found that the parent

has engaged in any of the following

conduct:

(i) Willful abandonment that continues

for an extended period of time or substantial

refusal to perform parenting functions;

(ii) physical, sexual, or a pattern of

emotional abuse of a child;

(iii) a history of acts of domestic

violence as defined in [ Washington’s law] or

an assault or sexual assault which causes

grievous bodily harm or the fear of such

harm; or

(iv) the parent has been convicted as an

adult of a sex offense under [relevant

provisions of Washington’s criminal code].

1-B