Troxel v. Granville
Dissenting Opinion
dissenting.
The Court today wisely declines to endorse either the holding or the reasoning of the Supreme Court of Washington. In my opinion, the Court would have been even wiser to deny certiorari. Given the problematic character of the trial court’s decision and the uniqueness of the Washington statute, there was no pressing need to review a State Su
Having decided to address the merits, however, the Court should begin by recognizing that the State Supreme Court rendered a federal constitutional judgment holding a state law invalid on its face. In light of that judgment, I believe that we should confront the federal questions presented directly. For the Washington statute is not made facially invalid either because it may bé invoked by too many hypothetical plaintiffs, or because it leaves open the possibility that someone may be permitted to sustain a relationship with a child without having to prove that serious harm to the child would otherwise result.
In response to Tommie Granville’s federal constitutional challenge, the State Supreme Court broadly held that Wash. Rev. Code §26.10.160(3) (Supp. 1996) was invalid on its face under the Federal Constitution.
The task of reviewing a trial court’s application of a state statute to the particular facts of a case is one that should be performed in the first instance by the state appellate courts. In this case, because of their views of the Federal Constitution, the Washington state appeals courts have yet to decide whether the trial court’s findings were adequate under the
We are thus presented with the unconstrued terms of a state statute and a State Supreme Court opinion that, in my view, significantly misstates the effect of the Federal Constitution upon any construction of that statute. Given that posture, I believe the Court should identify and correct the two flaws in the reasoning of the state court’s majority opin
II
In my view, the State Supreme Court erred in its federal constitutional analysis because neither the provision granting “any person” the right to petition the court for visitation, 137 Wash. 2d, at 20, 969 P. 2d, at 80, nor the absence of a provision requiring a “threshold .. . finding of harm to the child,” ibid., provides a sufficient basis for holding that the statute is invalid in all its applications. I believe that a facial challenge should fail whenever a statute has “a 'plainly legitimate sweep,’ ” Washington v. Glucksberg, 521 U. S. 702, 739-740, and n. 7 (1997) (Stevens, J., concurring in judgment).
The second key aspect of the Washington Supreme Court’s holding — that the Federal Constitution requires a showing of actual or potential “harm” to the ehild before a court may
Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies — the child.
It has become standard practice in our substantive due process jurisprudence to begin our analysis with an identification of the “fundamental” liberty interests implicated by the challenged state action. See, e. g., ante, at 65-66 (opinion of O’Connor, J.); Washington v. Glucksberg, 521 U. S. 702 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 838 (1992). My colleagues are of course correct to recognize that the right of a parent to maintain a relationship with his or her child is among the interests in-
Despite this Court’s repeated recognition of these significant parental liberty interests, these interests have never been seen to be without limits. In Lehr v. Robertson, 463 U. S. 248 (1983), for example, this Court held that a putative biological father who had never established an actual relationship with his child did not have a constitutional right to notice of his child’s adoption by the man who had married the child’s mother. As this Court had recognized in an earlier case, a parent’s liberty interests “‘do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’ ” Id., at 260 (quoting Caban v. Mohammed, 441 U. S. 380, 397 (1979)).
Conversely, in Michael H. v. Gerald D., 491 U. S. 110 (1989), this Court concluded that despite both biological parenthood and an established relationship with a young child, a father’s due process liberty interest in maintaining some connection with that child was not sufficiently powerful to overcome a state statutory presumption that the husband of the child’s mother was the child’s parent. As a result of the
A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by £he existence of an actual, developed relationship with a child, and are tied to the presence or absence of some embodiment of family. These limitations have arisen, not simply out of the definition of parenthood itself, but because of this Court’s assumption that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae, see, e. g., Reno v. Flores, 507 U. S. 292, 303-304 (1993); Santosky v. Kramer, 455 U. S., at 766; Parham, 442 U. S., at 605; Prince v. Massachusetts, 321 U. S. 158, 166 (1944), and, critically, the child’s own complementary interest in preserving relationships that serve her welfare and protection, Santosky, 455 U. S., at 760.
While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving established familial or family-like bonds, 491 U. S., at 130 (reserving the question), it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.
This is not, of course, to suggest that a child’s liberty interest in maintaining contact with a particular individual is to be treated invariably as on a par with that child’s parents’ contrary interests. Because our substantive due process ease law includes a strong presumption that a parent will act
But presumptions notwithstanding, we should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a “person” other than a parent. The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily. It is indisputably the business of the States, rather than a federal court employing a national standard, to assess in the first instance the relative importance of the conflicting interests that give rise to disputes such as this.
Accordingly, I respectfully dissent.
The State Supreme Court held that, “as written, the statutes violate the parents’ constitutionally protected interests.” In re Smith, 137 Wash. 2d 1, 5, 969 P. 2d 21, 23 (1998).
As the dissenting judge on the state appeals court noted, “[t]he trial court here was not presented with any guidance as to the proper test to be applied in a case such as this.” In re Troxel, 87 Wash. App. 181, 143, 940 P. 2d 698, 703 (1997) (opinion of Ellington, J.). While disagreeing with the appeals court majority’s conclusion that the state statute was constitutionally infirm, Judge Ellington recognized that despite this disagreement, the appropriate result would not be simply to affirm. Rather, because there had been no definitive guidance as to the proper construction of the statute, “[t]he findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings.” Ibid.
Unlike Justice O’Connor, ante, at 69-70,1 find no suggestion in the trial court’s decision in this case that the court was applying any presumptions at all in its analysis, much less one in favor of the grandparents. The first excerpt Justice O’Connor quotes from the trial court’s ruling, ante, at 69, says nothing one way or another about who bears the burden under the statute of demonstrating “best interests.” There is certainly no indication of a presumption against the parents’ judgment, only a “‘commonsensical’” estimation that, usually but not always, visiting with grandparents can be good for children. Ibid. The second quotation, “ T think [visitation] would be in the best interest of the children and I haven't been shown it is not in [the] best interest of the children,’” ibid., sounds as though the judge has simply concluded, based on the evidence before him, that visitation in this case would be in the best interests of both girls. Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 1994), p. 214. These statements do not provide us with a definitive assessment of the law the court applied regarding a ‘^presumption” either way. Indeed, a different impression is conveyed by the judge’s very next comment: “That has to be balanced, of course, with Mx\ and Mrs. Wynn [a.k.a. Tommie Granville], who are trying to put together a family that includes eight children, . . . trying to get all those children together at the same time and put together some sort of functional unit wherein the children can be raised as brothers and sisters and spend lots of quality time together.” Ibid. The judge then went on to reject the Troxels’ efforts to attain the same level of visitation that
However one understands the trial court’s decision — and my point is merely to demonstrate that it is surely open to interpretation — its validity under the state statute as written is a judgment for the state appellate courts to make in the first instance.
Justice Souter would conclude from the state court’s statement that the statute “do[es] not require the petitioner to establish that he or she has a substantial relationship with the child,” 137 Wash. 2d, at 21, 969 R 2d, at 31, that the state court has “authoritatively read [the ‘best interests’] provision as placing hardly any limit on a court’s discretion to award visitation rights,” ante, at 77 (opinion concurring in judgment). Apart from the question whether one can deem this description of the statute an “authoritative" construction, it seems to me exceedingly unlikely that the state court held the statute unconstitutional because it believed that the “best interests” standard imposes “hardly any limit” on courts’ discretion. See n. 5, infra.
The phrase “best interests of the child” appears in no less than 10 current Washington state statutory provisions governing determinations from guardianship to termination to custody to adoption. See, e. g., Wash. Rev. Code §26.09.240(6) (Supp. 1996) (amended version of visitation statute enumerating eight factors courts may consider in evaluating a child’s best interests); §26.09.002 (in cases of parental separation or divorce “best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care”; “best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm”); §26.10.100 (“The court shall determine custody in accordance with the best interests of the child”). Indeed, the Washington state courts have invoked the standard on numerous occasions in applying these statutory provisions — just as if the phrase had quite specific and apparent meaning. See, e. g., In re McDoyle, 122 Wash. 2d 604, 859 P. 2d 1239 (1998) (upholding trial court “best interest” assessment in custody dispute); McDaniels v. Carlson, 108 Wash. 2d 299, 310, 738 P. 2d 254, 261 (1987) (elucidating “best interests” standard in paternity suit context). More broadly, a search of current state custody and visitation laws reveals fully 698 separate references to the “best interest of the child” standard, a number that, at a minimum, should give the Gourt some pause before it upholds a decision implying that those words, on their face, may be too boundless to pass muster under the Federal Constitution.
It necessarily follows that under the far more stringent demands suggested by the majority in United, States v. Salerno, 481 U. S. 739, 745 (1987) (plaintiff seeking facial invalidation “must establish that no set of circumstances exists under which the Act would be valid”), respondent's facial challenge must fail.
The suggestion by Justice Thomas that this case may be resolved solely with reference to our decision in Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), is unpersuasive. Pierce involved a parent's choice whether to send a child to public or private school. While that ease is a source of broad language about the scope of parents’ due process rights with respect to their children, the constitutional principles and interests involved in the schooling context do not necessarily have parallel implications in this family law visitation context, in which multiple overlapping and competing prerogatives of various plausibly interested parties are at stake.
This Court has on numerous occasions acknowledged that children are in many circumstances possessed of constitutionally protected rights and liberties. See Parham v. J. R., 442 U. S. 584, 600 (1979) (liberty interest in avoiding involuntary confinement); Planned Parenthood of Central
Cf., e. g., Wisconsin v. Yoder, 406 U. S. 205,244-246 (1972) (Douglas, J., dissenting) ("While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today.... It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny”). The majority’s disagreement with Justice Douglas in that case turned not on any contrary view of children’s interest in their own education, but on the impact of the Free Exercise Clause of the First Amendment on its analysis of school-related decisions by the Amish community.
See Palmare v. Sidoti, 466 U. S. 429, 431 (1984) (“The judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court”); c£ Collins v. Harker Heights, 503 U. S. 115,128 (1992) (matters involving competing and multifaceted social and policy decisions best left to local decisionmaking); Regents of Univ. of Mich. v. Ewing, 474 U. S. 214, 226 (1985) (emphasizing our “reluctance to trench on the prerogatives of state and local educational institutions” as federal courts are ill-suited to “evaluate the substance of the multitude of academic decisions that are made daily by” experts in the field evaluating cumulative information). That caution is never more essential than in the realm of family and intimate relations. In part, this principle is based on long-established, if somewhat arbitrary, tradition in
Opinion of the Court
announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Breyer join.
Section 26.10.160(B) of the Revised Code of Washington permits “[a]ny person” to petition a superior court for visitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of the child.” Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The ease ultimately reached the Washington Supreme Court, which held that §26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.
I
Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad’s parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents’ home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son’s death, Tommie Granville in
In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court for Skagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition under two Washington statutes, Wash. Rev. Code §§26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issue in this case. Section 26.10.160(3) provides: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation per month with no overnight stay. 87 Wash. App., at 133-134, 940 P. 2d, at 699. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents’ birthdays. 137 Wash. 2d, at 6, 969 P. 2d, at 23; App. to Pet. for Cert. 76a-78a.
Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granville’s appeal, the Washington Court of Appeals remanded the ease to the Superior Court for entry of written findings of fact and conclusions of law. 137 Wash. 2d, at 6, 969 P. 2d, at 23. On remand, the Superior Court found that visitation was in Isabelle’s and Natalie’s best interests:
“The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Peti*62 tioners can provide opportunities for the children in the areas of cousins and music.
.. The court took into consideration all factors regarding the best interest of the children and considered all the testimony before it. The children would be bene-fitted from spending quality time with the Petitioners, provided that that time is balanced with time with the childrens’ [sic] nuclear family. The court finds that the childrens’ [sic] best interests are served by spending time with their mother and stepfather’s other six children.” App. 70a.
Approximately nine months after the Superior Court entered its order on remand, Granville’s husband formally adopted Isabelle and Natalie. Id,, at 60a-67a.
The Washington Court of Appeals reversed the lower court’s visitation order and dismissed the Troxels’ petition for visitation, holding that nonparents lack standing to seek visitation under §26.10.160(3) unless a custody action is pending. In the Court of Appeals’ view, that limitation on nonparental visitation actions was “consistent with the constitutional restrictions on state interference with parents’ fundamental liberty interest in the care, custody, and management of their children.” 87 Wash. App., at 135, 940 P. 2d, at 700 (internal quotation marks omitted). Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass on Granville’s constitutional challenge to the visitation statute. Id., at 138, 940 P. 2d, at 701.
The Washington Supreme Court granted the Troxels’ petition for review and, after consolidating their case with two other visitation cases, affirmed. The court disagreed with the Court of Appeals’ decision on the statutory issue and found that the plain language of §26.10.160(3) gave the Trox-els standing to seek visitation, irrespective of whether a custody action was pending. 137 Wash. 2d, at 12, 969 P.
We granted certiorari, 527 U. S. 1069 (1999), and now affirm the judgment.
II
The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and
The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States* recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States’ nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons — for example, their grandparents. The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvious cost. For example, the State’s recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. Contrary to Justice Stevens’ accusation, our description of state nonparental visitation statutes in these terms, of course, is not meant to suggest that “children are so much chattel.” Post, at 89 (dissenting opinion). Rather, our terminology is intended to highlight the fact that these
The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).
The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary
In subsequent eases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘eome[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’ ” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our eases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 758 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t]... to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent', it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham,:
“[0]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. . . . 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.” 442 U. S., at 602 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (i. <?., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained: '
“The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a eommonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn’t the case here from what I can tell.” Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).
The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impacted] adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.” Id., at 214.
The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. See Parham, supra, at 602. In that respect, the court’s pre
Considered together with the Superior Court’s reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its- visitation order. First, the Troxels “are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music.” App. 70a. Second, “[t]he children would be benefited from spending quality time with the [Troxels], provided that that time is balanced with time with the chil-drens’ [sic] nuclear family.” Ibid. These slender findings, in combination with the court’s announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granville’s already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interests. The Superior Court’s announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: “I look back on some personal experiences .... We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out.” Verbatim Report 220-221. As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right
Because we rest our decision on the sweeping breadth of §26.10.160(3) and the application of that broad, unlimited power in this ease, we do not consider the primary constitutional question passed on by the Washington Supreme Court — whether the Due Process Clause requires all nonpa-rental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.” Post, at 101 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.
Justice Stevens criticizes our reliance on what he characterizes as merely “a guess” about the Washington courts’ interpretation of § 26.10.160(3). Post, at 82 (dissenting opinion). Justice Kennedy likewise states that “[m]ore specific guidance should await a case in which a State’s highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself.” Post, at 102 (dissenting opinion). We respectfully disagree. There is no need to hypothesize about how the Washington courts might apply §26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like the Washington Supreme Court, then, we are presented with an actual visitation order and the reasons why the Superior Court believed
There is thus no reason to remand the ease for further proceedings in the Washington Supreme Court. As Justice Kennedy recognizes, the burden of litigating a domestic relations proceeding can itself be “so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.” Post, at 101. In this case, the litigation costs incurred by Granville on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. We should say so now, without forcing the parties into additional litigation that would further burden Granville’s parental right. We therefore hold that the application of §26.10.160(8) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.
Accordingly, the judgment of the Washington Supreme Court is affirmed.
It is so ordered.
A11 50 States have statutes that provide for grandparent visitation in some form. See Ala. Code § 30-3-4.1 (1989); Alaska Stat. Ann. § 25.20.065 (1998); Ariz. Rev. Stat. Ann. §25-409 (1994); Ark. Code Ann. §9-13-103 (1998); Cal. Fam. Code Ann. §3104 (West 1994); Colo. Rev. Stat. §19-1-117 (1999); Conn. Gen. Stat. §46b-59 (1995); Del. Code Ann., Tit. 10, §1031(7) (1999); Fla. Stat. §752.01 (1997); Ga. Code Ann. §19-7-3 (1991); Haw. Rev. Stat. §571-46.3 (1999); Idaho Code §32-719 (1999); Ill. Comp. Stat., eh. 750, §5/607 (1998); Ind. Code §31-17-5-1 (1999); Iowa Code §598.35 (1999); Kan. Stat. Ann. §38-129 (1993); Ky. Rev. Stat. Ann. §405.021 (Baldwin 1990); La. Rev. Stat. Ann. §9:344 (West Supp. 2000); La. Civ. Code Ann., Art. 136 (West Supp. 2000); Me. Rev. Stat. Ann., Tit. 19A, §1803 (1998);
Concurring Opinion
concurring in the judgment.
I concur in the judgment affirming the decision of the Supreme Court of Washington, whose facial invalidation of its own state statute is consistent with this Court’s prior eases addressing the substantive interests at stake. I would say no more. The issues that might well be presented by reviewing a decision addressing the specific application of the
The Supreme Court of Washington invalidated its state statute based on the text of the statute alone, not its application to any particular ease.
We have long recognized that a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Parham v. J. R., 442 U. S. 584,602 (1979); Santosky v. Kramer, 455 U. S. 745, 753 (1982); Washington v. Glucksberg, 521 U. S. 702, 720 (1997). As we first acknowledged in Meyer, the right of parents to "bring up children,” 262 U. S., at 399, and “to control the education of their own” is protected by the Constitution, id., at 401. See also Glucksberg, supra, at 761 (Souter, J., concurring in judgment).
On the basis of this settled principle, the Supreme Court of Washington invalidated its statute because it authorized a contested visitation order at the intrusive behest of any person at any time subject only to a best-interests-of-the-ehild standard. In construing the statute, the state court explained that the “any person” at “any time” language was to be read literally, 137 Wash. 2d, at 10-11, 969 P. 2d, at 25-27, and that “[m]ost notably the statut[e] do[es] not require the petitioner to establish that he or she has a substantial relationship with the child,” id., at 20-21, 969 P. 2d, at 31. Although the statute speaks of granting visitation rights whenever “visitation may serve the best interest of the child,” Wash. Rev. Code §26.10.160(3) (1994), the state court authoritatively read this provision as placing hardly any limit on a court’s discretion to award visitation rights. An the court understood it, the specific best-interests provision in the
Our eases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child, but Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by “any party” at “any time” a judge believed he “could make a ‘better’ decision”
Since I do not question the power of a State’s highest court to construe its domestic statute and to apply a demanding standard when ruling on its facial constitutionality,
The Supreme Court of Washington made its ruling in an action where three separate cases, including the Troxels’, had been consolidated. In re Smith, 187 Wash. 2d 1, 6-7, 969 P. 2d 21, 23-24 (1998). The court also addressed two statutes, Wash. Rev. Code §26.10.160(3) (Supp. 1996) and former Wash. Rev. Code §26.09.240 (1994), 137 Wash. 2d, at 7, 969 P. 2d, at 24, the latter of which is not even at issue in this case. See Brief for Petitioners 6, n. 9; see also ante, at 61. Its constitutional analysis discussed only the statutory language and neither mentioned the facts of any of the three cases nor reviewed the records of their trial court proceedings below. 137 Wash. 2d, at 13-21, 969 P. 2d, at 27-31. The decision invalidated both statutes without addressing their application to particular facts: “We conclude petitioners have standing but, as written, the statutes violate the parents’ constitutionally protected interests. These statutes allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.” Id., at 5, 969 P. 2d, at 23 (emphasis added); see also id., at 21, 969 P. 2d, at 31 (“RCW 26.10.160(3) and former RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the care, custody and companionship of the child” (citations and internal quotation marks omitted)).
As Justice O’Connor points out, the best-interests provision “contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge.” Ante, at 67.
Cf. Chicago v. Morales, 527 U. S. 41,71 (1999) (Breyer, J., concurring in part and concurring in judgment) (“The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications”).
The Supreme Court of Washington invalidated the broadly sweeping statute at issue on similarly limited reasoning: “Some parents and judges will not care if their child is physically disciplined by a third person; some parents and judges will not care if a third person teaches the child a religion inconsistent with the parents’ religion; and some judges and parents will not care if the child is exposed to or taught racist or sexist beliefs. But many parents and judges will care, and, between the two, the parents should be the ones to choose whether to expose their children to certain people or ideas.” 137 Wash. 2d, at 21, 969 P. 2d, at 31 (citation omitted).
This is the pivot between Justice Kennedy’s approach and mine.
Concurring Opinion
concurring in the judgment.
I write separately to note that neither party has argued that our substantive due process eases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.
Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest — to say nothing of a compelling one — in second-guessing a fit parent’s decision regarding visitation with third parties. On this basis, I would affirm the judgment below.
This ease also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause. See Saenz v. Roe, 526 U. S. 489,527-528 (1999) (Thomas, J., dissenting).
Dissenting Opinion
dissenting.
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men ... are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative
Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children
Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as Justice Kennedy’s opinion rightly points out) not only a judicially crafted definition of parents, but also — unless, as no one be-
For these reasons, I would reverse the judgment below.
Whether parental rights constitute a “liberty” interest for purposes of procedural due process is a somewhat different question not implicated here. Stanley v. Illinois, 405 U. S. 645 (1972), purports to rest in part upon that proposition, see id., at 651-652; but see Michael H. v. Gerald D., 491 U. S. 110, 120-121 (1989) (plurality opinion), though the holding is independently supported on equal protection grounds, see Stanley, supra, at 658.
I note that respondent is asserting only, on her own behalf, a substantive due process right to direct the upbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights of association or free exercise. I therefore do not have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.
Dissenting Opinion
dissenting.
The Supreme Court of Washington has determined that petitioners Jenifer and Gary Troxel have standing under state law to seek court-ordered visitation with their grandchildren, notwithstanding the objections of the children’s parent, respondent Tommie Granville. The statute relied upon provides:
“Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Wash. Rev. Code §26.10.160(3) (1994).
The first flaw the State Supreme Court found in the stat- • ute is that it allows an award of visitation to a nonparent without a finding that harm to the child would result if visitation were withheld; and the second is that the statute allows any person to seek visitation at any time. In my view the first theory is too broad to be correct, as it appears to contemplate that the best interests of the child standard may not be applied in any visitation case. I acknowledge the distinct possibility that visitation eases may arise where, considering the absence of other protection for the parent under state laws and procedures, the best interests of the child standard would give insufficient protection to the parent’s constitutional right to raise the child without undue intervention by the State; but it is quite a different matter to say, as I understand the Supreme Court of Washington to have said, that a harm to the child standard is required in every instance.
Given the error I see in the State Supreme Court’s central conclusion that the best interests of the child standard is never appropriate in third-party visitation cases, that court should have the first, opportunity to reconsider this case. I would-remand the case to the state court for further proceedings. If it then found the statute has been applied in an unconstitutional manner because the best interests of the child standard gives insufficient protection to a parent under the circumstances of this ease, or if it again declared the statute a nullity because the statute seems to allow any person
Turning to the question whether harm to the child must be the controlling standard in every visitation proceeding, there is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: As our case law has developed, the custodial parent has a constitutional right to determine, without undue interference by the State, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. See, e. g., Meyer v. Nebraska, 262 U. S. 890, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972); Santosky v. Kramer, 455 U. S. 745, 753-754 (1982). Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion. Their formulation and subsequent interpretation have been quite different, of course; and they long have been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the “custody, care and nurture of the child,” free from state intervention. Prince, supra, at 166. The principle exists, then, in broad formulation; yet courts must use considerable restraint, including careful adherence to the incremental in
The State Supreme Court sought to give content to the parent’s right by announcing a categorical rule that third parties who seek visitation must always prove the denial of visitation would harm the child. After reviewing some of the relevant precedents, the Supreme Court of Washington concluded “ ‘[t]he requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.’” 137 Wash. 2d, at 19-20, 969 P. 2d, at 30 (quoting Hawk v. Hawk, 856 S. W. 2d 573, 580 (Tenn. 1993)). For that reason, “[s]hort of preventing harm to the child,” the court considered the best interests of the child to be “insufficient to serve as a compelling state interest overruling a parent’s fundamental rights.” 137 Wash. 2d, at 20, 969 P. 2d, at 30.
While it might be argued as an abstract matter that in some sense the child is always harmed if his or her best interests are not considered, the law of domestic relations, as it has evolved to this point, treats as distinct the two standards, one harm to the child and the other the best interests of the child. The judgment of the Supreme Court of Washington rests on that assumption, and I, too, shall assume that there are real and consequential differences between the two standards.
On the question whether one standard must always take precedence over the other in order to protect the right of the parent or parents, “[o]ur Nation’s history, legal traditions, and practices” do not give us clear or definitive answers. Washington v. Glucksberg, 521 U. S. 702, 721 (1997). The consensus among courts and commentators is that at least through the 19th century there was no legal right of visitation; court-ordered visitation appears to be a 20th-century phenomenon. See, e. g., 1 D. Kramer, Legal Rights of Children 124, 136 (2d ed..-1994); 2 J. Atkinson, Modern
To say that third parties have had no historical right to petition for visitation does not necessarily imply, as the Supreme Court of Washington concluded, that a parent has a constitutional right to prevent visitation in all eases not involving harm. True, this Court has acknowledged that States have the authority to intervene to prevent harm to children, see, e. g., Prince, supra, at 168-169; Yoder, supra, at 233-234, but that is not the same as saying that a heightened harm to the child standard must be satisfied in every case in which a third party seeks a visitation order. It is also true that the law’s traditional presumption has been “that natural bonds of affection lead parents to act in the
My principal concern is that the holding seems to proceed from the assumption that the parent or parents who resist visitation have always been the child’s primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child. That idea, in turn, appears influenced by the concept that the conventional nuclear family ought to establish the visitation standard for every domestic relations ease. As we all know, this is simply not the structure or prevailing condition in many households. See, e. g., Moore v. East Cleveland, 431 U. S. 494 (1977). For many boys and girls a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood. This may be so whether their childhood has been marked by tragedy or filled with considerable happiness and fulfillment.
Cases are sure to arise — perhaps a substantial number of cases — in which a third party, by acting in a earegiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto. See Michael H. v. Gerald D., 491 U. S. 110 (1989) (putative natural father not entitled to rebut state-law presumption that child born in a marriage is a child of the marriage); Quilloin v. Walcott, 434 U. S. 246 (1978) (best interests standard sufficient in adoption proceeding to protect interests of natural father who had not legitimated the child); see also Lehr v. Robertson, 463 U. S. 248, 261 (1983) (“ ‘[Tjhe importance of the familial relationship, to the individuals in
Indeed, contemporary practice should give us some pause before rejecting the best interests of the child standard in all third-party visitation cases, as the Washington court has done. The standard has been recognized for many years as a basic tool of domestic relations law in visitation proceedings. Since 1965 all 50 States have enacted a third-party visitation statute of some sort. See ante, at 73-74, n. (plurality opinion). Each of these statutes, save one, permits a court order to issue in certain cases if visitation is found to be in the best interests of the child. While it is unnecessary for us to consider the constitutionality of any particular provision in the ease now before us, it can be noted that the statutes also include a variety of methods for limiting parents’ exposure to third-party visitation petitions and for ensuring parental decisions are given respect. Many States
In light of the inconclusive historical record and case law, as well as the almost universal adoption of the best interests standard for visitation disputes, I would be hard pressed to conclude the right to be free of such review in all cases is itself “ ‘implicit in the concept of ordered liberty.’ ” Glucksberg, 521 U. S., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)). In my view, it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. In short, a fit parent’s right vis-á-vis a complete
It must be recognized, of eourse, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated. The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. See, e. g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tent. Draft No. 3, Mar. 20,1998). If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future. Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required; and I do not discount the possibility that in some instances the best interests of the child standard may provide insufficient protection to the parent-child relationship. We owe it to the Nation’s domestic relations legal structure, however, to proceed with caution.
It should suffice in this ease to reverse the holding of the State Supreme Court that the application of the best interests of the child standard is always unconstitutional in third-party visitation cases. Whether, under the circumstances of this case, the order requiring visitation over the objection of this fit parent violated the Constitution ought to be reserved for further proceedings. Because of its sweeping ruling re
In my view the judgment under review should be vacated and the case remanded for further proceedings.
Reference
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- TROXEL Et Vir v. GRANVILLE
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