Limits on Grandparent Visitation: The Continuing Ripples of Troxel v. Granville

Posted in: Family Law

In the year 2000, a lifetime ago in family law terms, the Supreme Court issued an important decision, Troxel v. Granville, in which a majority opined that the State of Washington’s third-party visitation law was unconstitutional as applied to the case before the Court. At its core, the case pitted the rights of parents to decide with whom their children associate against the often strong and sympathetic claims of grandparents who have been kept from their grandchildren.

All fifty states have statutory provisions allowing grandparents (and sometimes other third parties) the right to petition a court for visitation over the objection of a child’s parent or parents. The Troxel decision seemed to spell the end—or at least a substantial limitation—on the possibility that grandparents could obtain rights under these statutes. And in the years that followed, litigation ensued in virtually every state about the constitutionality of the state’s grandparent visitation laws. With a little more distance, however, the impact of Troxel seems less pronounced. Yes, some courts did rule that the state legislature had infringed on parental rights by enacting an overbroad visitation statute or by applying a narrower statute in an unjustified way. But many courts upheld state statutes (and applications of them) against so-called Troxel challenges. Taken as a whole, the caselaw suggests that Troxel was a reminder to legislatures and courts that they needed to be more respectful of parental rights, which were deemed subject to constitutional protection almost a century ago.

The Troxel battles are not over, however. The Pennsylvania Supreme Court recently issued an opinion, D.P. v. G.J.P., in which it struck down as unconstitutional part of the state’s grandparent visitation law, which gave grandparents standing to sue for custody if the child’s parents had been separated for at least six months.

The American System of Parental Rights

Plato’s Republic expounded a state-centered theory of parenting whereby children would be removed from their parents at birth, and the state would raise them. In contrast, some ancient cultures, like those of the Romans and Babylonians, followed a more hands-off model, under which fathers, in varying degrees, had the legal authority to buy, sell, trade, and even kill their children, unfettered by governmental restriction.

American family law is premised on a triangular model of parenting—a compromise between these two extremes. The tripartite players are parent, child, and state, but their roles and rights are not co-equal.

Parents are given vast deference to make decisions about all aspects of childrearing, including education, religion, health care, discipline, as well as the mind-numbing details of daily life. Children rarely win when challenging their parents’ authority in court.

The state’s role, animated by the notion of a parens patriae power that allows the state to act as a sort of super-parent, is sharply limited. The state can only override parental decisions that place a child’s health or well-being in serious jeopardy. The child abuse and neglect system is the primary way in which that state power is exercised. With sufficient proof of imminent harm, the state can remove children from their parents’ care entirely, or impose restrictions that curtail the parents’ rights.

The state’s deference to parental decision-making in all but the most extreme situations is not just an exercise in forbearance. The right of parents to make decisions about their children is protected by the Due Process Clause of the Constitution. The Supreme Court held as early as the 1920s that parents have a fundamental liberty interest giving them the right to establish a home, raise children, and control their education and upbringing. As long as the parents are “fit”—above the legal minimum for competence and ability to provide a safe environment for a child—the state has no reason, nor the right, to interfere with the exercise of this interest.

The constitutional protection for parental rights has led courts (properly) to indulge a presumption that fit parents make decisions that are in the best interests of their children. As a result, parents have won battles with the state over home-schooling, religious isolation, and the withholding of medical care for non-life-threatening conditions—all choices that are within the range of parental discretion, even if we may question their wisdom.

Troxel v. Granville: Shoring Up Parental Rights

Parental rights have been a robust part of American constitutional doctrine for a long time, long predating other aspects of the Fourteenth Amendment’s right to privacy surrounding, for example, marriage and reproductive decision-making. The question in Troxel was not whether parents have constitutional protection for decision-making, but whether a court’s application of a grandparent visitation law infringed on those rights.

The Washington statute at issue in Troxel permitted “any person” to seek visitation at “any time,” and permitted courts to grant such requests based on nothing more than a determination that “visitation may serve the best interest of the child.”

In Troxel, the plaintiffs petitioned for visitation with their daughter-in-law’s two children—over her objection. The children’s father (their son) had committed suicide. She had not denied them visitation entirely, but had resisted their efforts to establish a visitation schedule more typical of a custodial parent than a grandparent. Pursuant to the statute, the court undertook a standard “best interests” analysis, which entails an open-ended consideration of all relevant factors, and ordered that the daughter-in-law had to permit fairly substantial visitation of the grandparents with their grandchildren.

The mother appealed the order, arguing that the statute gave insufficient deference to her rights as a parent to decide with whom her children should have relationships and contact—and how much. The Court, 6-3, struck down the Washington statute as applied in the particular circumstances of the Troxel case. But of the six, two were unwilling to flesh out the scope of the parental right at stake. The remaining four, however, agreed that, at a minimum, a visitation statute must give “special weight” to the decision by a parent to deny a given third party visitation with the child. The Justices in the majority did agree, however, that the “best interests of the child” standard was troubling in that it appeared to give equal weight to the preferences of the parent objecting to visitation and the third party seeking it. When a fit parent denies visitation with grandparents, a court must at least presume that the decision is in the child’s best interests.

Complying with Troxel’s Mandate

The statute at issue in Troxel was, as Justice O’Connor wrote on behalf of the four-member plurality, “breathtakingly broad.” The statute was not limited to relatives; instead, it literally permitted “any person” at “any time” to petition for visitation with someone else’s child. Moreover, it permitted courts to grant such petitions over parental objection as long as it was in the best interests of the child. Finally, it did so with respect to any parents—not just those where one parent had died or been declared unfit or where the parents had divorced. All parents—even perfectly fit (and, indeed, excellent parents) —came within the statute’s reach.

Moreover, the statute in every way favored third parties and ignored parents’ rights. It did not presume parents to act in the best interests of their own children. It did not otherwise elevate parents’ rights with respect to their children over those of third parties. And it did not require a showing that a child would be harmed by the lack of the third-party visitation. The statute basically treated children like, for instance, public parks to which various groups had an equal right to seek access; parents were seen as equal petitioners, not special caretakers.

In Troxel’s wake, the statutes that were upheld were narrower than Washington State’s in at least some respect. They had to give parental decisions “special weight.”   Under this standard, the Pennsylvania Supreme Court upheld the state’s grandparent visitation law. In Hiller v. Fausey (2006), the court ruled that a state law permitting grandparent visitation over the objection of the child’s sole living parent was constitutional—even without any showing that denying grandparent visitation would cause harm to the child.

The child in Hiller had lived with his parents prior to his mother’s death from cancer. During his mother’s illness, he had had almost daily contact with his maternal grandmother, who performed many basic caretaking tasks for him. After the mother’s death, however, the child’s father refused to permit contact between the child and his grandmother. She filed for partial custody under a Pennsylvania law—section 5311 of title 23 of the Pennsylvania Consolidated Statutes—that permits grandparents of a deceased parent to seek partial custody or visitation of their grandchild if it “would be in the best in interest of the child and would not interfere with the parent-child relationship.”

In considering the constitutionality of this law, the court applied strict scrutiny, the level of review dictated by the fundamental nature of the parental due process rights infringed by third-party visitation over the parent’s objection. To survive such review, the law must pass a two-pronged inquiry: The court must find both that the law is justified by a compelling state interest, and that the law is narrowly tailored to effectuate it.

In Hiller, the court concluded that the state’s interest in protecting the health and welfare of children, which also justifies its intervention to terminate parental rights or award custody to non-parents in appropriate cases, was sufficient to justify this law as well.

In addition, moving on to the second prong of the inquiry, because the statute had built-in limiting factors, the court found it to be narrowly tailored as well: It applied only to grandparents whose own child has died. It expressly stated that the visitation must not interfere with the surviving parent’s relationship with the child. And it directed courts to consider the amount of pre-petition contact between grandparent and grandchild. (This law, then, was a far cry from the “breathtakingly broad” law at issue in Troxel.) The court thus upheld the law even though it did not require that the lack of visitation would cause harm to the child.

Fast-Forward a Decade: D.P. v. G.D.P. and a New Troxel Challenge in Pennsylvania

In this new case, D.P. v. G.D.P., two parents challenged the constitutionality of another provision of the state’s grandparent visitation law. It grants standing for grandparents to seek custody of their minor grandchildren if the children’s parents have been separated for at least six months. (The section upheld in Fausey involved standing when one of the child’s parents has died.)

In this case, the parents were separated and planning to divorce, but had not yet filed and, so far, were handling custody arrangements by agreement. They mutually agreed in December 2012 to discontinue contact between the children and their paternal grandparents. Almost two years later, the grandparents filed a complaint seeking partial physical custody of the children. They alleged no unfitness by either parent. The trial court issued an interim order granting shared legal custody to the parents and directing that the grandparents were not to have contact with the children. The parents moved to dismiss the petition altogether, arguing that this particular subsection violates the Fourteenth Amendment. The trial court sided with the parents, concluding that this subsection infringes their parental rights and could not be justified under a strict scrutiny standard.

The state’s highest court, to which the grandparents directly appealed, sided with the parents as well. The grandparents argued that the separation provision is a safeguard for parental rights, only allowing grandparent (not “any person”) visitation petitions and only when the marriage has functionally dissolved, as evidenced by the lengthy separation. These features, they argued, distinguished it from the “breathtakingly broad” statute in Troxel.

It is true that many of the statutes that have withstood scrutiny after Troxel have granted standing to petition only when there has been a breakdown of the nuclear family. The breakdown both elevates the importance of extended-family ties and makes it more likely that they might be strained. But not every disruption in a family is the same. If two parents separate, but are able to amicably negotiate a custody arrangement without court intervention and agree that contact with the grandparents should be discontinued, is there reason to presume that they are not acting in their children’s best interests?

For a statute to survive strict constitutional scrutiny, we need to do more than speculate that it might serve some governmental interest in some cases. The court recognized that the state does have “a compelling interest in safeguarding children from various kinds of physical and emotional harm and promoting their wellbeing.” In this context, the protection is designed to ensure “that children are not deprived of beneficial relationships with their grandparents.” But this is most justified when the risk of a damaged relationship is greatest. It just wasn’t clear to the court that a simple marital separation is enough to presume such a risk.

In this particular case, there seemed to be no reason to suspect a breakdown in typical parental decision-making, “where [p]arents have never sought court involvement in their family issues and are able to co-parent in agreement concerning whether their children should maintain contact with their grandparents.” And even though this statute only concerns standing to sue—not the right to share custody—the court noted the importance of protecting parents from the burden of litigation, which would itself be an infringement on parental rights.

In the end, the court recognized that major disruptions to the family can certainly trigger the state’s interest in protecting grandparent-grandchild relationships, and less-than-major ones may as well, especially given the “changing nature of the family in the modern era.” But, “where there is no reason to believe presumptively fit parents are not acting in their children’s best interests, the government’s interest in allowing a third party to supplant their decisions is diminished.” Separated parents may reconcile, and separations without any legal intervention (such as was the case here) may have little effect on children. There is no reason to assume, the court reasoned, that the studies on children of divorce have equal application to children of separation. And with both parents living, and in agreement with one another on the visitation issue, there is no reason to assume the estrangement with the grandparents has some obvious cause. A six-month parental separation thus “does not render the state’s parens patriae interest sufficiently pressing to justify potentially disturbing the decision of presumptively fit parents concerning the individuals with whom their minor children should associate.”


The court’s decision is clearly the correct one, as the legislature had overstepped its bounds at a significant cost to parental rights. Grandparents are important—I benefited from some amazing ones, as do my children—but at the end of the day, parents are best suited to determine what’s best for their children. Courts should only intervene—and only be permitted to intervene—when there is reason to suspect the usual best-interests decision-making process has gone seriously awry. Parents, in general, are to be trusted to raise their children.

Posted in: Family Law

Tags: Legal