OCTOBER TERM, 1999
Syllabus
TROXEL ET VIR
v. GRANVILLE
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 99-138. Argued January 12, 2000-Decided June 5, 2000
Washington Rev. Code §26.1O.160(3) permits "[a]ny person" to
petition for visitation rights "at any time" and authorizes state
superior courts to grant such rights whenever visitation may serve
a child's best interest. Petitioners Troxel petitioned for the
right to visit their deceased son's daughters. Respondent
Granville, the girls' mother, did not oppose all visitation, but
objected to the amount sought by the Troxels. The Superior Court
ordered more visitation than Granville desired, and she appealed.
The State Court of Appeals reversed and dismissed the Troxels'
petition. In affirming, the State Supreme Court held,
inter
alia, that § 26.10.160(3) unconstitutionally infringes on
parents' fundamental right to rear their children. Reasoning that
the Federal Constitution permits a State to interfere with this
right only to prevent harm or potential harm to the child, it found
that § 26.10.160(3) does not require a threshold showing of harm
and sweeps too broadly by permitting any person to petition at any
time with the only requirement being that the visitation serve the
best interest of the child.
Held: The judgment is affirmed.
137 Wash. 2d 1, 969 P. 2d 21, affirmed.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG,
and JUSTICE BREYER, concluded that § 26.10.160(3), as applied to
Granville and her family, violates her due process right to make
decisions concerning the care, custody, and control of her
daughters. Pp.63-75.
(a) The Fourteenth Amendment's Due Process Clause has a
substantive component that "provides heightened protection against
government interference with certain fundamental rights and liberty
interests,"
Washington v.
Glucksberg, 521 U. S. 702, 720,
including parents' fundamental right to make decisions concerning
the care, custody, and control of their children, see,
e. g.,
Stanley v.
Illinois, 405 U. S. 645, 651.
Pp.63-66.
(b) Washington's breathtakingly broad statute effectively
permits a court to disregard and overturn
any decision by a
fit custodial parent concerning visitation whenever a third party
affected by the decision files a visitation petition, based solely
on the judge's determination of the child's best interest. A
parent's estimation of the child's best interest is accorded no
deference. The State Supreme Court had the oppor-
58
Syllabus
tunity, but declined, to give § 26.10.160(3) a narrower reading.
A combination of several factors compels the conclusion that §
26.10.160(3), as applied here, exceeded the bounds of the Due
Process Clause. First, the Troxels did not allege, and no court has
found, that Granville was an unfit parent. There is a presumption
that fit parents act in their children's best interests,
Parham v.
J. R., 442 U. S. 584, 602; there
is normally no reason for the State to inject itself into the
private realm of the family to further question fit parents'
ability to make the best decisions regarding their children, see,
e. g., Reno v.
Flores, 507 U. S. 292, 304. The
problem here is not that the Superior Court intervened, but that
when it did so, it gave no special weight to Granville's
determination of her daughters' best interests. More importantly,
that court appears to have applied the opposite presumption,
favoring grandparent visitation. In effect, it placed on Granville
the burden of
disproving that visitation would be in her
daughters' best interest and thus failed to provide any protection
for her fundamental right. The court also gave no weight to
Granville's having assented to visitation even before the filing of
the petition or subsequent court intervention. These factors, when
considered with the Superior Court's slender findings, show that
this case involves nothing more than a simple disagreement between
the court and Granville concerning her children's best interests,
and that the visitation order was an unconstitutional infringement
on Granville's right to make decisions regarding the rearing of her
children. Pp. 67-73.
(c) Because the instant decision rests on § 26.10.160(3)'s
sweeping breadth and its application here, there is no need to
consider the question whether the Due Process Clause requires all
nonparental visitation statutes to include a showing of harm or
potential harm to the child as a condition precedent to granting
visitation or to decide the precise scope of the parental due
process right in the visitation context. There is also no reason to
remand this case for further proceedings. The visitation order
clearly violated the Constitution, and the parties should not be
forced into additional litigation that would further burden
Granville's parental right. Pp. 73-75.
JUSTICE SOUTER concluded that the Washington Supreme Court's
second reason for invalidating its own state statute-that it sweeps
too broadly in authorizing any person at any time to request (and a
judge to award) visitation rights, subject only to the State's
particular bestinterests standard-is consistent with this Court's
prior cases. This ends the case, and there is no need to decide
whether harm is required or to consider the precise scope of a
parent's right or its necessary protections. pp. 75-79.
59
JUSTICE THOMAS agreed that this Court's recognition of a
fundamental right of parents to direct their children's upbringing
resolves this case, but concluded that strict scrutiny is the
appropriate standard of review to apply to infringements of
fundamental rights. Here, the State lacks a compelling interest in
second-guessing a fit parent's decision regarding visitation with
third parties. P. 80.
O'CONNOR, J., announced the judgment of the Court and delivered
an opinion, in which REHNQUIST, C. J., and GINSBURG and BREYER,
JJ., joined. SOUTER, J.,
post, p. 75, and THOMAS, J.,
post, p. 80, filed opinions concurring in the judgment.
STEVENS, J.,
post, p. 80, SCALIA, J.,
post, p. 91,
and KENNEDY, J.,
post, p. 93, filed dissenting opinions.
Mark D. Olson argued the cause for petitioners. With him
on the briefs was
Eric Schnapper.
Catherine W Smith argued the cause for respondent.
With her on the brief was
Howard M. Goodfriend.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Washington et al. by
Christine O.
Gregoire, Attorney General of Washington, and
Maureen A.
Hart, Senior Assistant Attorney General, and by the Attorneys
General for their respective States as follows:
Mark Pryor
of Arkansas,
Bill Lockyer of California,
Ken Salazar
of Colorado,
Earl I. Anzai of Hawaii,
Carla J.
Stovall of Kansas,
Jeremiah W (Jay) Nixon of
Missouri,
Joseph P. Mazurek of Montana,
John
J. Farmer, Jr., of New Jersey,
Heidi Heitkamp
of North Dakota,
Betty D. Montgomery of Ohio, and
Paul G.
Summers of Tennessee; for AARP et al. by
Rochelle Bobroff, Bruce Vignery, and
Michael
Schuster; for Grandparents United for Children's Rights, Inc.,
by
Judith Sperling Newton and
Carol M. Gapen; for the
National Conference of State Legislatures et al. by
Richard
Ruda and
James I. Crowley; and for the Grandparent
Caregiver Law Center of the Brookdale Center on Aging.
Briefs of
amici curiae urging affirmance were filed for
the American Academy of Matrimonial Lawyers by
Barbara Ellen
Handschu and
Sanford K. Ain; for the American Center for
Law and Justice by
Jay Alan Sekulow, Colby May, Vincent
McCarthy, and
John P. Tuskey; for the American Civil
Liberties Union et al. by
Matthew A. Coles, Michael P. Adams,
Catherine Weiss, and
Steven R. Shapiro; for the
Coalition for the Restoration of Parental Rights by
Karen A.
Wyle; for the Institute for Justice et al. by
William H.
Mellor, Clint Bolick, and
Scott G.
Bullock; for
the Center for the Original Intent of the Constitution by
Michael P. Farris; for the Christian Legal Society et al. by
Kimberlee Wood Colby, Gregory S.
Baylor, and
Carl
H. Esbeck; for the Lambda Legal Defense
60
Opinion of O'CONNOR, J.
JUSTICE O'CONNOR 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(3) 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 case 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-
and Education Fund et al. by Patricia M. Logue, Ruth E. Harlow,
and Beatrice Dohrn; for the Society of Catholic Social Scientists
by Stephen M. Krason and Richard W Garnett; and for Debra Hein by
Stuart M. Wilder.
Briefs of
amici curiae were filed for the Center for
Children's Policy Practice & Research at the University of
Pennsylvania by
Barbara Bennett Woodhouse; for the Domestic
Violence Project, Inc.lSafe House (Michigan) et al. by
Anne L.
Argiroffand Ann L. Routt; for the National Association of
Counsel for Children by
Robert C.
Fellmeth and
Joan Hollinger; and for the Northwest Women's Law Center et
al. by
Cathy J. Zavis.
61
formed the Troxels in October 1993 that she wished to limit
their visitation with her daughters to one short visit per month.
In re Smith, 137 Wash. 2d 1, 6, 969 P. 2d 21, 23-24
(1998); In re Troxel, 87 Wash. App. 131, 133, 940 P. 2d 698,
698-699 (1997).
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 case 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
Opinion of O'CONNOR, J.
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 benefitted 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 70l.
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 Troxels standing to seek
visitation, irrespective of whether a custody action was pending.
137 Wash. 2d, at 12, 969 P.
63
2d, at 26-27. The Washington Supreme Court nevertheless agreed
with the Court of Appeals' ultimate conclusion that the Troxels
could not obtain visitation of Isabelle and N atalie pursuant to §
26.10.160(3). The court rested its decision on the Federal
Constitution, holding that § 26.10.160(3) unconstitutionally
infringes on the fundamental right of parents to rear their
children. In the court's view, there were at least two problems
with the nonparental visitation statute. First, according to the
Washington Supreme Court, the Constitution permits a State to
interfere with the right of parents to rear their children only to
prevent harm or potential harm to a child. Section 26.10.160(3)
fails that standard because it requires no threshold showing of
harm.
Id., at 15-20, 969 P. 2d, at 28-30. Second, by
allowing" 'any person' to petition for forced visitation of a child
at 'any time' with the only requirement being that the visitation
serve the best interest of the child," the Washington visitation
statute sweeps too broadly.
Id., at 20, 969 P. 2d, at 30.
"It is not within the province of the state to make significant
decisions concerning the custody of children merely because it
could make a 'better' decision."
Ibid., 969 P. 2d, at 31.
The Washington Supreme Court held that "[p]arents have a right to
limit visitation of their children with third persons," and that
between parents and judges, "the parents should be the ones to
choose whether to expose their children to certain people or
ideas."
Id., at 21, 969 P. 2d, at 31. Four justices
dissented from the Washington Supreme Court's holding on the
constitutionality of the statute.
Id., at 23-43, 969 P. 2d,
at 32-42.
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
64
Opinion of O'CONNOR, J.
grandparents who visit regularly, many other children are raised
in single-parent households. In 1996, children living with only one
parent accounted for 28 percent of all children under age 18 in the
United States. U. S. Dept. of Commerce, Bureau of Census, Current
Population Reports, 1997 Population Profile of the United States 27
(1998). Understandably, in these single-parent households, persons
outside the nuclear family are called upon with increasing
frequency to assist in the everyday tasks of child rearing. In many
cases, grandparents play an important role. For example, in 1998,
approximately 4 million children-or 5.6 percent of all children
under age 18-lived in the household of their grandparents. U. S.
Dept. of Commerce, Bureau of Census, Current Population Reports,
Marital Status and Living Arrangements: March 1998 (Update), p. i
(1998).
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
65
statutes can present questions of constitutional import. In this
case, we are presented with just such a question. Specifically, we
are asked to decide whether § 26.10.160(3), as applied to Tommie
Granville and her family, violates the Federal Constitution.
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 childrenis
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
66
Opinion of O'CONNOR, J.
function and freedom include preparation for obligations the
state can neither supply nor hinder."
Id., at 166.
In subsequent cases 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 'come[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 cases have consistently followed that course");
Santosky v.
Kramer, 455 U. S. 745, 753 (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.
67
Section 26.10.160(3), as applied to Granville and her family in
this case, unconstitutionally infringes on that fundamental
parental right. The Washington nonparental visitation statute is
breathtakingly broad. According to the statute's text,
"[a]ny
person may petition the court for visitation rights
at any
time," and the court may grant such visitation rights whenever
"visitation may serve
the best interest of the child." §
26.10.160(3) (emphases added). That language effectively permits
any third party seeking visitation to subject any decision by a
parent concerning visitation of the parent's children to
state-court review. Once the visitation petition has been filed in
court and the matter is placed before a judge, a parent's decision
that visitation would not be in the child's best interest is
accorded no deference. Section 26.10.160(3) 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. Should the judge disagree with the parent's estimation of
the child's best interests, the judge's view necessarily prevails.
Thus, in practical effect, in the State of Washington a court can
disregard and overturn
any decision by a fit custodial
parent concerning visitation whenever a third party affected by the
decision files a visitation petition, based solely on the judge's
determination of the child's best interests. The Washington Supreme
Court had the opportunity to give § 26.10.160(3) a narrower
reading, but it declined to do so. See,
e. g., 137
Wash. 2d, at 5, 969 P. 2d, at 23 ("[The statute] allow[s] 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 20, 969 P. 2d, at 30
("[The statute] allow[s] 'any person' to petition for forced
visitation of a child at 'any time' with the only requirement being
that the visitation serve the best interest of the child").
68
Opinion of O'CONNOR, J.
Turning to the facts of this case, the record reveals that the
Superior Court's order was based on precisely the type of mere
disagreement we have just described and nothing more. The Superior
Court's order was not founded on any special factors that might
justify the State's interference with Granville's fundamental right
to make decisions concerning the rearing of her two daughters. To
be sure, this case involves a visitation petition filed by
grandparents soon after the death of their son-the father of
Isabelle and N atalie-but the combination of several factors here
compels our conclusion that § 26.10.160(3), as applied, exceeded
the bounds of the Due Process Clause.
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:
"[O]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.
e., is fit), there will normally be no reason
for the State to inject itself into the private realm of the family
to further question the ability of that parent to make the
69
best decisions concerning the rearing of that parent's children.
See,
e. g., Flores, 507 U. S., at 304.
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 commonsensical 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 "impact[ed]
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-
70
Opinion of O'CONNOR, J.
sumption failed to provide any protection for Granville's
fundamental constitutional right to make decisions concerning the
rearing of her own daughters. Cf.,
e. g., Cal. Fam.
Code Ann. § 3104(e) (West 1994) (rebuttable presumption that
grandparent visitation is not in child's best interest if parents
agree that visitation rights should not be granted); Me. Rev. Stat.
Ann., Tit. 19A, § 1803(3) (1998) (court may award grandparent
visitation if in best interest of child and "would not
significantly interfere with any parent-child relationship or with
the parent's rightful authority over the child"); Minn. Stat. §
257.022(2)(a)(2) (1998) (court may award grandparent visitation if
in best interest of child and "such visitation would not interfere
with the parent-child relationship"); Neb. Rev. Stat. § 43-1802(2)
(1998) (court must find "by clear and convincing evidence" that
grandparent visitation "will not adversely interfere with the
parent-child relationship"); R. I. Gen. Laws § 15-5-24.3(a)(2)(v)
(Supp. 1999) (grandparent must rebut, by clear and convincing
evidence, presumption that parent's decision to refuse grandparent
visitation was reasonable); Utah Code Ann. § 30-5-2(2)(e) (1998)
(same);
Hoffv. Berg, 595 N. W. 2d 285, 291-292 (N. D. 1999)
(holding North Dakota grandparent visitation statute
unconstitutional because State has no "compelling interest in
presuming visitation rights of grandparents to an unmarried minor
are in the child's best interests and forcing parents to accede to
court-ordered grandparental visitation unless the parents are first
able to prove such visitation is not in the best interests of their
minor child"). In an ideal world, parents might always seek to
cultivate the bonds between grandparents and their grandchildren.
Needless to say, however, our world is far from perfect, and in it
the decision whether such an intergenerational relationship would
be beneficial in any specific case is for the parent to make in the
first instance. And, if a fit parent's decision of the kind at
issue here becomes subject to judicial review, the court must
accord at least some special weight to the parent's own
determination.
71
Finally, we note that there is no allegation that Granville ever
sought to cut off visitation entirely. Rather, the present dispute
originated when Granville informed the Troxels that she would
prefer to restrict their visitation with Isabelle and Natalie to
one short visit per month and special holidays. See 87 Wash. App.,
at 133, 940 P. 2d, at 699; Verbatim Report 12. In the Superior
Court proceedings Granville did not oppose visitation but instead
asked that the duration of any visitation order be shorter than
that requested by the Troxels. While the Troxels requested two
weekends per month and two full weeks in the summer, Granville
asked the Superior Court to order only one day of visitation per
month (with no overnight stay) and participation in the Granville
family's holiday celebrations. See 87 Wash. App., at 133, 940 P.
2d, at 699; Verbatim Report 9 ("Right off the bat we'd like to say
that our position is that grandparent visitation is in the best
interest of the children. It is a matter of how much and how it is
going to be structured") (opening statement by Granville's
attorney). The Superior Court gave no weight to Granville's having
assented to visitation even before the filing of any visitation
petition or subsequent court intervention. The court instead
rejected Granville's proposal and settled on a middle ground,
ordering one weekend of visitation per month, one week in the
summer, and time on both of the petitioning grandparents'
birthdays. See 87 Wash. App., at 133-134, 940 P. 2d, at 699;
Verbatim Report 216-221. Significantly, many other States expressly
provide by statute that courts may not award visitation unless a
parent has denied (or unreasonably denied) visitation to the
concerned third party. See,
e. g., Miss. Code Ann. §
93-16-3(2)(a) (1994) (court must find that "the parent or custodian
of the child unreasonably denied the grandparent visitation rights
with the child"); Ore. Rev. Stat. § 109.121(1)(a)(B) (1997) (court
may award visitation if the "custodian of the child has denied the
grandparent reasonable opportunity to visit the child"); R. 1. Gen.
Laws §§ 15-5-
72
Opinion of O'CONNOR, J.
24.3(a)(2)(iii)-(iv) (Supp. 1999) (court must find that parents
prevented grandparent from visiting grandchild and that "there is
no other way the petitioner is able to visit his or her grandchild
without court intervention").
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
benefitted from spending quality time with the [Troxels], provided
that that time is balanced with time with the childrens'
[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
73
of parents to make child rearing decisions simply because a
state judge believes a "better" decision could be made. Neither the
Washington nonparental visitation statute generally-which places no
limits on either the persons who may petition for visitation or the
circumstances in which such a petition may be granted-nor the
Superior Court in this specific case required anything more.
Accordingly, we hold that § 26.10.160(3), as applied in this case,
is unconstitutional.
Because we rest our decision on the sweeping breadth of §
26.10.160(3) and the application of that broad, unlimited power in
this case, we do not consider the primary constitutional question
passed on by the Washington Supreme Court-whether the Due Process
Clause requires all nonparental 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. * See,
e. g., Fair-
* All 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.
Compo Stat., ch. 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);
74
Opinion of O'CONNOR, J.
banks v.
McCarter, 330 Md. 39,49-50,622 A. 2d 121,
126-127 (1993) (interpreting best-interest standard in grandparent
visitation statute normally to require court's consideration of
certain factors);
Williams v.
Williams, 256 Va. 19,
501 S. E. 2d 417, 418 (1998) (interpreting Virginia nonparental
visitation statute to require finding of harm as condition
precedent to awarding visitation).
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
Md. Fam. Law Code Ann. § 9-102 (1999); Mass. Gen. Laws § 119:39D
(1996); Mich. Compo Laws Ann. § 722.27b (West Supp. 1999); Minn.
Stat. § 257.022 (1998); Miss. Code Ann. § 93-16-3 (1994); Mo. Rev.
Stat. § 452.402 (Supp. 1999); Mont. Code Ann. §40-9-102 (1997);
Neb. Rev. Stat. §43-1802 (1998); Nev. Rev. Stat. § 125C.050 (Supp.
1999); N. H. Rev. Stat. Ann. §458:17-d (1992); N. J. Stat. Ann.
§9:2-7.1 (West Supp. 1999-2000); N. M. Stat. Ann. § 40-9-2 (1999);
N. Y. Dom. ReI. Law § 72 (McKinney 1999); N. C. Gen. Stat. §§
50-13.2, 50-13.2A (1999); N. D. Cent. Code § 14-09-05.1 (1997);
Ohio Rev. Code Ann. §§ 3109.051, 3109.11 (Supp. 1999); Okla. Stat.,
Tit. 10, § 5 (Supp. 1999); Ore. Rev. Stat. § 109.121 (1997); 23 Pa.
Cons. Stat. §§ 5311-5313 (1991); R. 1. Gen. Laws §§ 15-5-24 to
15-5-24.3 (Supp. 1999); S. C. Code Ann. §20-7-420(33) (Supp. 1999);
S. D. Codified Laws §25-4-52 (1999); Tenn. Code Ann. §§ 36-6-306,
36-6-307 (Supp. 1999); Tex. Fam. Code Ann. § 153.433 (Supp. 2000);
Utah Code Ann. § 30-5-2 (1998); Vt. Stat. Ann., Tit. 15, §§
1011-1013 (1989); Va. Code Ann. §20-124.2 (1995); w. Va. Code
§§48-2B-1 to 48-2B-7 (1999); Wis. Stat. §§767.245, 880.155
(1993-1994); Wyo. Stat. Ann. §20-7-101 (1999).
75
entry of the order was appropriate in this case. Faced with the
Superior Court's application of § 26.10.160(3) to Granville and her
family, the Washington Supreme Court chose not to give the statute
a narrower construction. Rather, that court gave § 26.10.160(3) a
literal and expansive interpretation. As we have explained, that
broad construction plainly encompassed the Superior Court's
application of the statute. See
supra, at 67.
There is thus no reason to remand the case 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(3) 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.
JUSTICE SOUTER, 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 cases 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
76
SOUTER, J., concurring in judgment
state statute by the trial court,
ante, at 68-73, are not
before us and do not call for turning any fresh furrows in the
"treacherous field" of substantive due process.
Moore v.
East Cleveland, 431 U. S. 494, 502 (1977)
(opinion of Powell, J.).
The Supreme Court of Washington invalidated its state statute
based on the text of the statute alone, not its application to any
particular case.1 Its ruling rested on two independently sufficient
grounds: the failure of the statute to require harm to the child to
justify a disputed visitation order,
In re Smith, 137 Wash.
2d 1, 17, 969 P. 2d 21, 29 (1998), and the statute's authorization
of "any person" at "any time" to petition for and to receive
visitation rights subject only to a free-ranging
best-interests-of-the-child standard,
id., at 20-21, 969 P.
2d, at 30-31.
Ante, at 63. I see no error in the second
reason, that because the state statute authorizes any person at any
time to request (and a judge to award) visitation rights, subject
only to the State's particular best-
1 The Supreme Court of Washington made its ruling in an action
where three separate cases, including the Troxels', had been
consolidated.
In re Smith, 137 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)).
77
interests standard, the state statute sweeps too broadly and is
unconstitutional on its face. Consequently, there is no need to
decide whether harm is required or to consider the precise scope of
the parent's right or its necessary protections.
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-child 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. As the
court understood it, the specific best-interests provision in
the
78
SOUTER, J., concurring in judgment
statute would allow a court to award visitation whenever it
thought it could make a better decision than a child's parent had
done. See 137 Wash. 2d, at 20, 969 P. 2d, at 31 ("It is not within
the province of the state to make significant decisions concerning
the custody of children merely because it could make a 'better'
decision").2 On that basis in part, the Supreme Court of Washington
invalidated the State's own statute: "Parents have a right to limit
visitation of their children with third persons."
Id., at
21, 969 P. 2d, at 31.
Our cases, 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" 3 than the
objecting parent had done. The strength of a parent's interest in
controlling a child's associates is as obvious as the influence of
personal associations on the development of the child's social and
moral character. Whether for good or for ill, adults not only
influence but may indoctrinate children, and a choice about a
child's social companions is not essentially different from the
designation of the adults who will influence the child in school.
Even a State's considered judgment about the preferable political
and religious character of schoolteachers is not entitled
2 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.
3 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").
79
to prevail over a parent's choice of private school.
Pierce,
supra, at 535 ("The fundamental theory of liberty upon which
all governments in this Union repose excludes any general power of
the State to standardize its children by forcing them to accept
instruction from public teachers only. The 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"). It would be anomalous,
then, to subject a parent to any individual judge's choice of a
child's associates from out of the general population merely
because the judge might think himself more enlightened than the
child's parent.4 To say the least (and as the Court implied in
Pierce), parental choice in such matters is not merely a
default rule in the absence of either governmental choice or the
government's designation of an official with the power to choose
for whatever reason and in whatever circumstances.
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,5 see
Chicago v.
Morales, 527 U. S. 41, 55, n. 22
(1999) (opinion of STEVENS, J.), this for me is the end of the
case. I would simply affirm the decision of the Supreme Court of
Washington that its statute, authorizing courts to grant visitation
rights to any person at any time, is unconstitutional. I therefore
respectfully concur in the judgment.
4 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).
5 This is the pivot between JUSTICE KENNEDY'S approach and
mine.
80
JUSTICE THOMAS, concurring in the judgment.
I write separately to note that neither party has argued that
our substantive due process cases 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.
JUSTICE STEVENS, 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-
*This case 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).
81
preme Court decision that merely requires the state legislature
to draft a better statute.
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 be
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.
I
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.1 Despite the nature of this judgment, JUSTICE
O'CONNOR would hold that the Washington visitation statute violated
the Due Process Clause of the Fourteenth Amendment only as applied.
Ante, at 65, 67, 73 (plurality opinion). I agree with
JUSTICE SOUTER,
ante, at 75-76, and n. 1 (opinion concurring
in judgment), that this approach is untenable.
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
1 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).
82
statute.2 Any as-applied critique of the trial court's judgment
that this Court might offer could only be based upon a guess about
the state courts' application of that State's statute, and an
independent assessment of the facts in this case-both judgments
that we are ill-suited and ill-advised to make.3
2 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. 131, 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.
3 Unlike JUSTICE O'CONNOR,
ante, at 69-70, I 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, "'I 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 Mr. 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
83
While I thus agree with JUSTICE SOUTER in this respect, I do not
agree with his conclusion that the State Supreme Court made a
definitive construction of the visitation statute that necessitates
the constitutional conclusion he would draw.4 As I read the State
Supreme Court's opinion,
In re Smith, 137 Wash. 2d 1,
19-20, 969 P. 2d 21, 30-31 (1998), its interpretation of the
Federal Constitution made it unnecessary to adopt a definitive
construction of the statutory text, or, critically, to decide
whether the statute had been correctly applied in this case. In
particular, the state court gave no content to the phrase, "best
interest of the child," Wash. Rev. Code § 26.10.160(3) (Supp.
1996)-content that might well be gleaned from that State's own
statutes or decisionallaw employing the same phrase in different
contexts,
their son, the girls' biological father, would have had, had he
been alive. "[T]he fact that Mr. Troxel is deceased and he was the
natural parent and as much as the grandparents would maybe like to
step into the shoes of Brad, under our law that is not what we can
do. The grandparents cannot step into the shoes of a deceased
parent, per say
[sic], as far as whole gamut of visitation
rights are concerned."
Id., at 215. Rather, as the judge put
it, "I understand your desire to do that as loving grandparents.
Unfortunately that would impact too dramatically on the children
and their ability to be integrated into the nuclear unit with the
mother."
Id., at 222-223.
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.
4JUSTICE 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 P. 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.
84
and from the myriad other state statutes and court decisions at
least nominally applying the same standard.5 Thus, I believe that
JUSTICE SOUTER'S conclusion that the statute unconstitutionally
imbues state trial court judges with "'too much discretion in
every case,'"
ante, at 78, n. 3 (opinion concurring
in judgment) (quoting
Chicago v.
Morales, 527 U. S.
41, 71 (1999) (BREYER, J., concurring)), is premature.
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-
5 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 (1993) (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 Court
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.
85
ion, and remand for further review of the trial court's
disposition of this specific case.
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 30, 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).6 Under the
Washington statute, there are plainly any number of cases-indeed,
one suspects, the most common to arise-in which the "person" among
"any" seeking visitation is a once-custodial caregiver, an intimate
relation, or even a genetic parent. Even the Court would seem to
agree that in many circumstances, it would be constitutionally
permissible for a court to award some visitation of a child to a
parent or previous caregiver in cases of parental separation or
divorce, cases of disputed custody, cases involving temporary
foster care or guardianship, and so forth. As the statute plainly
sweeps in a great deal of the permissible, the State Supreme Court
majority incorrectly concluded that a statute authorizing "any
person" to file a petition seeking visitation privileges would
invariably run afoul of the Fourteenth Amendment.
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 child before a court may
6 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.
86
order visitation continued over a parent's objections-finds no
support in this Court's case law. While, as the Court recognizes,
the Federal Constitution certainly protects the parent-child
relationship from arbitrary impairment by the State, see
infra this page and 87-88, we have never held that the
parent's liberty interest in this relationship is so inflexible as
to establish a rigid constitutional shield, protecting every
arbitrary parental decision from any challenge absent a threshold
finding of harm.7 The presumption that parental decisions generally
serve the best interests of their children is sound, and clearly in
the normal case the parent's interest is paramount. But even a fit
parent is capable of treating a child like a mere possession.
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. 833
(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-
7The 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 case 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.
87
cluded most often in the constellation of liberties protected
through the Fourteenth Amendment.
Ante, at 65-66 (opinion of
O'CONNOR, J.). Our cases leave no doubt that parents have a
fundamental liberty interest in caring for and guiding their
children, and a corresponding privacy interest-absent exceptional
circumstances-in doing so without the undue interference of
strangers to them and to their child. Moreover, and critical in
this case, our cases applying this principle have explained that
with this constitutional liberty comes a presumption (albeit a
rebuttable one) that "natural bonds of affection lead parents to
act in the best interests of their children."
Parham v.
J. R., 442 U. S. 584, 602
(1979); see also
Casey, 505 U. S., at 895;
Santosky
v.
Kramer, 455
U. S. 745, 759 (1982) (State may not presume, at factfinding
stage of parental rights termination proceeding, that interests of
parent and child diverge); see also
ante, at 68-69 (opinion
of O'CONNOR, J.).
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 fullblown 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
88
presumption, the biological father could be denied even
visitation with the child because, as a matter of state law, he was
not a "parent." A plurality of this Court there recognized that the
parental liberty interest was a function, not simply of "isolated
factors" such as biology and intimate connection, but of the
broader and apparently independent interest in family. See,
e.
g., id., at 123; see also
Lehr, 463 U. S., at 261;
Smith v.
Organization of Foster Families For Equality
&
Reform, 431 U. S. 816, 842-847
(1977);
Moore v.
East Cleveland, 431 U. S. 494, 498-504
(1977).
A parent's rights with respect to her child have thus never been
regarded as absolute, but rather are limited by the 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.8 At a minimum, our prior cases rec-
8 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
89
ognizing that children are, generally speaking, constitutionally
protected actors require that this Court reject any suggestion that
when it comes to parental rights, children are so much chattel. See
ante, at 64-65 (opinion of O'CONNOR, J.) (describing States'
recognition of "an independent third-party interest in a child").
The constitutional protection against arbitrary state interference
with parental rights should not be extended to prevent the States
from protecting children against the arbitrary exercise of parental
authority that is not in fact motivated by an interest in the
welfare of the child.9
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 case law
includes a strong presumption that a parent will act
Mo. v.
Danforth, 428 U. S. 52, 74 (1976)
("Constitutional rights do not mature and come into being magically
only when one attains the state-defined age of majority. Minors, as
well as adults, are protected by the Constitution and possess
constitutional rights");
Tinker v.
Des Moines Independent
Community School Dist., 393 U. S. 503, 506-507
(1969) (First Amendment right to political speech);
In re
Gault, 387 U. S.
1, 13 (1967) (due process rights in criminal proceedings).
9 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
schoolrelated decisions by the Amish community.
90
in the best interest of her child, it would be necessary, were
the state appellate courts actually to confront a challenge to the
statute as applied, to consider whether the trial court's
assessment of the "best interest of the child" incorporated that
presumption. Neither would I decide whether the trial court applied
Washington's statute in a constitutional way in this case,
although, as I have explained, n. 3,
supra, I think the
outcome of this determination is far from clear. For the purpose of
a facial challenge like this, I think it safe to assume that trial
judges usually give great deference to parents' wishes, and I am
not persuaded otherwise here.
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.10 Far from guaranteeing
that
10 See
Palmore 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"); cf.
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
91
parents' interests will be trammeled in the sweep of cases
arising under the statute, the Washington law merely gives an
individual-with whom a child may have an established
relationship-the procedural right to ask the State to act as
arbiter, through the entirely well-known best-interests standard,
between the parent's protected interests and the child's. It seems
clear to me that the Due Process Clause of the Fourteenth Amendment
leaves room for States to consider the impact on a child of
possibly arbitrary parental decisions that neither serve nor are
motivated by the best interests of the child.
Accordingly, I respectfully dissent.
JUSTICE SCALIA, 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 anyone 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
allocating responsibility for resolving disputes of various
kinds in our federal system.
Ankenbrandt v.
Richards,
504 U. S. 689
(1992). But the instinct against overregularizing decisions about
personal relations is sustained on firmer ground than mere
tradition. It flows in equal part from the premise that people and
their intimate associations are complex and particular, and
imposing a rigid template upon them all risks severing bonds our
society would do well to preserve.
92
democracy set forth in the founding documents to argue, in
legislative chambers or in electoral campaigns, that the State has
no power to interfere with parents' authority over the
rearing of their children, I do not believe that the power which
the Constitution confers upon me
as a judge entitles me to
deny legal effect to laws that (in my view) infringe upon what is
(in my view) that unenumerated right.
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 l_two of them from an era rich in
substantive due process holdings that have since been repudiated.
See
Meyer v.
Nebraska, 262 U. S. 390, 399, 401
(1923); Pierce v.
Society of Sisters, 268 U. S. 510, 534-535
(1925); Wisconsin v.
Yoder, 406 U. S. 205, 232-233
(1972). Cf.
West Coast Hotel Co. v.
Parrish, 300 U. S. 379 (1937)
(overruling
Adkins v.
Children's Hospital of D. c.,
261 U. S. 525
(1923)). The sheer diversity of to day's opinions persuades me that
the theory of unenumerated parental rights underlying these three
cases has small claim to
stare decisis protection. A legal
principle that can be thought to produce such diverse outcomes in
the relatively simple case before us here is not a legal principle
that has induced substantial reliance. While I would not now
overrule those earlier cases (that has not been urged), neither
would I extend the theory upon which they rested to this new
context.
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-
1 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.
93
lieves, the parental rights are to be absolute-judicially
approved assessments of "harm to the child" and judicially defined
gradations of other persons (grandparents, extended family,
adoptive family in an adoption later found to be invalid, long-term
guardians, etc.) who may have some claim against the wishes of the
parents. If we embrace this unenumerated right, I think it
obvious-whether we affirm or reverse the judgment here, or remand
as JUSTICE STEVENS or JUSTICE KENNEDY would do-that we will be
ushering in a new regime of judicially prescribed, and federally
prescribed, family law. I have no reason to believe that federal
judges will be better at this than state legislatures; and state
legislatures have the great advantages of doing harm in a more
circumscribed area, of being able to correct their mistakes in a
flash, and of being removable by the people.2
For these reasons, I would reverse the judgment below.
JUSTICE KENNEDY, 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).
2 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.
94
After acknowledging this statutory right to sue for visitation,
the State Supreme Court invalidated the statute as violative of the
United States Constitution, because it interfered with a parent's
right to raise his or her child free from unwarranted interference.
In re Smith, 137 Wash. 2d 1,969 P. 2d 21 (1998). Although
parts of the court's decision may be open to differing
interpretations, it seems to be agreed that the court invalidated
the statute on its face, ruling it a nullity.
The first flaw the State Supreme Court found in the statute 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 cases 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 case, or if
it again declared the statute a nullity because the statute seems
to allow any person
95
at all to seek visitation at any time, the decision would
present other issues which mayor may not warrant further review in
this Court. These include not only the protection the Constitution
gives parents against state-ordered visitation but also the extent
to which federal rules for facial challenges to statutes control in
state courts. These matters, however, should await some further
case. The judgment now under review should be vacated and remanded
on the sole ground that the harm ruling that was so central to the
Supreme Court of Washington's decision was error, given its broad
formulation.
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. 390, 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, 753754
(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-
96
struction given by the precise facts of particular cases, as
they seek to give further and more precise definition to the
right.
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, 855 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 20thcentury
phenomenon. See,
e. g., 1 D. Kramer, Legal Rights of
Children 124, 136 (2d ed. 1994); 2 J. Atkinson, Modern
97
Child Custody Practice § 8.10 (1986). A case often cited as one
of the earliest visitation decisions,
Succession of Reiss,
46 La. Ann. 347, 353, 15 So. 151, 152 (1894), explained that "the
obligation ordinarily to visit grandparents is moral and not
legal"-a conclusion which appears consistent with that of American
common-law jurisdictions of the time. Early 20th-century exceptions
did occur, often in cases where a relative had acted in a parental
capacity, or where one of a child's parents had died. See
Douglass v.
Merriman, 163 S. C. 210, 161 S. E. 452
(1931) (maternal grandparent awarded visitation with child when
custody was awarded to father; mother had died);
Solomon v.
Solomon, 319 Ill. App. 618, 49 N. E. 2d 807 (1943) (paternal
grandparents could be given visitation with child in custody of his
mother when their son was stationed abroad; case remanded for
fitness hearing);
Consaul v.
Consaul, 63 N. Y. S. 2d
688 (Sup. Ct. Jefferson Cty. 1946) (paternal grandparents awarded
visitation with child in custody of his mother; father had become
incompetent). As a general matter, however, contemporary
state-court decisions acknowledge that "[h]istorically,
grandparents had no legal right of visitation,"
Campbell v.
Campbell, 896 P. 2d 635, 642, n. 15 (Utah App. 1995), and it
is safe to assume other third parties would have fared no better in
court.
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 cases 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
98
best interests of their children,"
Parham v.
J.
R., 442 U. S.
584, 602 (1979); and "[s]imply because the decision of a parent
is not agreeable to a child or because it involves risks does not
automatically transfer the power to make that decision from the
parents to some agency or officer of the state,"
id., at
603. The State Supreme Court's conclusion that the Constitution
forbids the application of the best interests of the child standard
in any visitation proceeding, however, appears to rest upon
assumptions the Constitution does not require.
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
case. 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 care giving 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)
(" '[T]he importance of the familial relationship, to the
individuals in-
99
volved and to the society, stems from the emotional attachments
that derive from the intimacy of daily association, and from the
role it plays in "promot[ing] a way of life" through the
instruction of children ... as well as from the fact of blood
relationship'" (quoting
Smith v.
Organization of Foster
Families For Equality &
Reform, 431 U. S. 816, 844
(1977), in turn quoting
Yoder, 406 U. S., at 231-233)). Some
pre-existing relationships, then, serve to identify persons who
have a strong attachment to the child with the concomitant
motivation to act in a responsible way to ensure the child's
welfare. As the State Supreme Court was correct to acknowledge,
those relationships can be so enduring that "in certain
circumstances where a child has enjoyed a substantial relationship
with a third person, arbitrarily depriving the child of the
relationship could cause severe psychological harm to the child,"
137 Wash. 2d, at 20, 969 P. 2d, at 30; and harm to the adult may
also ensue. In the design and elaboration of their visitation laws,
States may be entitled to consider that certain relationships are
such that to avoid the risk of harm, a best interests standard can
be employed by their domestic relations courts in some
circumstances.
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 case 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
100
limit the identity of permissible petitioners by restricting
visitation petitions to grandparents, or by requiring petitioners
to show a substantial relationship with a child, or both. See,
e. g., Kan. Stat. Ann. § 38-129 (1993 and Supp. 1998)
(grandparent visitation authorized under certain circumstances if a
substantial relationship exists); N. C. Gen. Stat. §§ 50-13.2,
50-13.2A, 50-13.5 (1999) (same); Iowa Code § 598.35 (Supp. 1999)
(same; visitation also authorized for great-grandparents); Wis.
Stat. § 767.245 (Supp. 1999) (visitation authorized under certain
circumstances for "a grandparent, greatgrandparent, stepparent or
person who has maintained a relationship similar to a parent-child
relationship with the child"). The statutes vary in other
respects-for instance, some permit visitation petitions when there
has been a change in circumstances such as divorce or death of a
parent, see,
e. g., N. H. Rev. Stat. Ann. § 458:17-d
(1992), and some apply a presumption that parental decisions should
control, see,
e. g., Cal. Fam. Code Ann. §§
3104(e)-(f) (West 1994); R. 1. Gen. Laws § 15-5-24.3(a)(2)(v)
(Supp. 1999). Georgia's is the sole state legislature to have
adopted a general harm to the child standard, see Ga. Code Ann. §
19-73(c) (1999), and it did so only after the Georgia Supreme Court
held the State's prior visitation statute invalid under the Federal
and Georgia Constitutions, see
Brooks v.
Parkerson,
265 Ga. 189, 454 S. E. 2d 769, cert. denied, 516 U. S. 942
(1995).
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-a-vis a
complete
101
stranger is one thing; her right vis-a-vis another parent or a
de facto parent may be another. The protection the
Constitution requires, then, must be elaborated with care, using
the discipline and instruction of the case law system. We must keep
in mind that family courts in the 50 States confront these factual
variations each day, and are best situated to consider the
unpredictable, yet inevitable, issues that arise. Cf.
Ankenbrandt v.
Richards, 504 U. S. 689, 703-704
(1992).
It must be recognized, of course, 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 case to reverse the holding of the
State Supreme Court that the application of the best interests of
the child standard is always unconstitutional in thirdparty
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-
102
quiring the harm to the child standard, the Supreme Court of
Washington did not have the occasion to address the specific
visitation order the Troxels obtained. More 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. Furthermore, in my view, we need not address
whether, under the correct constitutional standards, the Washington
statute can be invalidated on its face. This question, too, ought
to be addressed by the state court in the first instance.
In my view the judgment under review should be vacated and the
case remanded for further proceedings.
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