TROXEL v. GRANVILLE

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Argument of Mark D. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 99-138, Jenifer Troxel v. Tommie Granville.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, may it please the Court:

We present two questions today, and the advance of theory for the resolution of the case before this Court.

The first question is, was the Washington State supreme court correct when it held that a visitation order to a person other than a parent may not be granted absent a showing of physical or mental harm to the child, and the other question is, should the Court at this time resolve all of the constitutional questions that could be raised by any other orders, other than the Troxel order before this Court?

The answer to those questions are, we believe, the court did not make the correct decision below requiring a greater standard by a specific showing of substantial harm to the child than is already required by the best-interests-of-the-child standard, and we also ask this Court to leave for another day the resolution of the constitutional questions that may be raised by other visitation orders not before the Court.

Justice O'Connor: Mr. Olson, it's not clear to me just what the Washington court included in the word harm.

Can harm be stress to the child because of the severance of a substantial relationship?

Is that harm?

I... it's not clear to me how we even define the term.

Mr. Olson: The term harm is fuzzy.

There... that is a problem.

Is it... and I agree, is it a little bit of harm?

Is it a great deal of harm?

Do we look for bruises if visitation isn't ordered, or...

Justice O'Connor: It surely must mean more than physical harm, but what other things fall within it, do you think?

Mr. Olson: Harm to the child.

It is difficult to put one's finger on what harm is.

Best-interest-of-the-child standard subsumes many factors that the court considers.

Justice Kennedy: Can you argue that best interest of the child like, not being... that the child is harmed if his best interests are not being served, so that it's just really the flip side?

Mr. Olson: Well, we believe that the rule of the Washington supreme court requires a greater harm, a more specific showing, although that term is fuzzy, as Justice O'Connor points out, but in the best-interests-of-the child standard, there is harm considered to the child whether visitation is ordered or not ordered.

Chief Justice Rehnquist: I always considered the supreme court of Washington agreed with what you just said.

I had thought that the State statute said best interests of the child, and the supreme court of Washington said that you can't get a third party visitation rights as against the parent unless you can show harm, which suggests that they thought the two might... were mutually exclusive.

Mr. Olson: That harm and the best interests...

Chief Justice Rehnquist: That... yes.

Mr. Olson: standard were exclusive?

Chief Justice Rehnquist: That the best interests standard would cover a much broader spectrum than the harm standard.

Mr. Olson: If I understand the question correctly, our concern is that the focus of the best interests of the harm standard would over-emphasize that and create a hurdle that would be greater, or higher, or more difficult to prove and would, particularly in the case that is before this Court, would effectively bar visitation for the Troxels...

Justice Ginsburg: But Mr. Olson, isn't that some...

Mr. Olson: when it's very slight.

Justice Ginsburg: Mr. Olson, isn't that something for the Washington supreme court to spell out case by case?

After all, it's not our job to say what, under a State law, harm means, because that definition can come over time, the way law generally develops, case by case.

Mr. Olson: And that is why the theory that we advance to the Court is that the magnitude of the intrusion be balanced against the constitutionally required justification, and in this case we believe that best interests of the child is sufficient for the order, because the intrusion in our case is slight.

It's just 25.5 hours a month with the grandparents, and we believe that it is a State issue.

Chief Justice Rehnquist: But you have to show, don't you, that at least this visitation order is constitutionally permissible?

The supreme court of Washington I guess struck down the entire statute, and the argument you make, which I think has some force to it, is that you don't lightly strike down an entire statute, and... but you do have, from your point of view to avoid that you have to show that there's at least some order that could be issued consistent with this statute which would not be unconstitutional, and... I think your problem, probably, is to what extent can a court intervene in the case of parents who are not harming the child to say that outsiders such as grandparents can have a court-ordered visitation right?

Mr. Olson: I'm not certain of the question to me, Mr. Chief Justice.

The State courts, as Justice Ginsburg asked, does set forth the best-interests-of-the-child standard that the trial court would then apply in any given case.

The intrusion in our case, in the Troxel matter, is very slight.

There's no constitutional infringement upon any religious belief, right to educate, or any other matter.

It is simply in the best interests of the child, as was stipulated at the trial court by the experts and by the mother.

Chief Justice Rehnquist: But you do have a line of cases not directly on point, but that cut the other way, I think.

That is, the parents, it's up to the parents to decide, you know, not just who has custody, how the kids are going to be brought up, who they're going to see.

Mr. Olson: Yes.

Chief Justice Rehnquist: Does this mean that next a great aunt can come in and say, well, you know, I want to take her to the movies every Friday?

Mr. Olson: Well, the line of cases held that any parental decision is not above government regulation, but a parental decision would be subject... I'm sorry.

State regulation would be subject to strict scrutiny of a parental decision in the area of religion or First Amendment, if I understand the question, but in this case it is not.

Justice Ginsburg: But also health and safety.

Isn't that... those cases say parents decide, but the State can regulate to spare the child from harm.

Mr. Olson: That is true.

Justice Scalia: And you say the State can regulate just whenever it's in the best interests of the child.

The parent says, no candy.

The State says, oh, that's unreasonable.

Kids ought to have some candy.

Mr. Olson: Well, the magnitude of the intrusion would be balanced against the...

Justice Scalia: Oh, it's very little intrusion.

Give the kid some candy once a week.

[Laughter]

Alternate Fridays, or whatever.

This is an enormous intrusion?

And you think the State can tell parents because that's in the interests of the child, according to the State, or according to one judge who sits as the agent of the State and likes candy?

Mr. Olson: Well, our...

[Laughter]

Our theory, Justice Scalia, is that all those other hypotheticals would be left for the State courts to work out as those instances arise, and...

Justice O'Connor: But do you really think that the State can have a statute as broad as this that says, any person at any time can march in and ask a court in the best interests of the child to order some kind of visitation?

I mean, this is a breathtakingly broad provision, is it not, and it's very expensive for parents to defend lawsuits if anybody can walk in at any time and file a court action.

Mr. Olson: Regarding the expense, Your Honor, there are two statutes in Washington that allow the court to award attorneys' fees on the basis of need and ability to pay, and that if there is any economic imbalance the court can address that.

Justice Breyer: Mr....

Justice Scalia: A need or an ability to pay, but I mean, let's assume these people lay out a lot of money but in fact, you know, they have it.

It's just money that would have gone to something else.

Mr. Olson: Well, Justice...

Justice Scalia: They're not impoverished.

It's just cost them $100,000 to defend this case.

Mr. Olson: Justice...

Justice Scalia: Is there any remedy for that?

Mr. Olson: Yes.

The attorneys' fees could be reimbursed if there was... if there was an imbalance, or intransigence.

There are a number of bases by which the court could address any complaints regarding...

Justice O'Connor: Well, let's get back to my question of the breadth of this statute.

Do you defend it, any person, any time?

Mr. Olson: I believe, Your Honor, that the best-interest-of-the-child standard is what controls, not the any person language.

Justice O'Connor: But wait a minute.

That means that some welfare caseworker can march into court and ask for some order.

Mr. Olson: Your Honor, of course that's not the record in this case, and...

Justice Souter: Oh, but Mr. Olson, unless you are prepared to accept something that broad, I don't understand what your position is in this Court, because as I understand it you are not here and you are not in the courts of Washington claiming a substantive due process right, exclusive of the statute, to have this visitation.

As I understand it, you are claiming a statutory right.

The courts of Washington have said that the statute is too broad, and they have declared the entire statute unconstitutional, and they have said, we're not going to narrow or sever, and I presume that's their business.

Therefore, it seems to me that, for you to get relief in this Court, we would have to hold that in every possible or reasonably possible application of that statute it was constitutional, because unless we hold that, Washington was perfectly proper in declaring the statute unconstitutional, and if you, representing grandparents, want to come into court and claim rights, you've either got to get a new statute, or you've got to claim a constitutional right of your own, which you're not doing.

Am I missing something in the posture of the case?

Mr. Olson: Well, the State court didn't strike down the statute because it was too broad.

What the State court did was, it struck down the statute because it said that there was a requirement of a substantial physical and mental harm to the child.

Justice Souter: Well, it mentioned that, but it also mentioned the breadth of the statute.

It said this statute, in effect, gives third party rights to the world.

That's number 1, and number 2, it does so on the basis of an improper standard.

Mr. Olson: I don't believe...

Justice Souter: And it seems to me that unless we are in a position to resurrect the statute, you really don't have a claim to make under the law of Washington, and you're not making an independent constitutional claim of your own.

Mr. Olson: There are three responses I have, Your Honor, and that is that the any person language admits that family law is complex, and the nature of families is so varied that it's impossible for us to...

Justice Souter: Well, it may be complex, but let me ask you this question.

Do you believe that any person walking in off the street, without any relationship by blood or marriage to the child, may, as against the parents' claim of the right to control the upbringing of their children, get a court order based simply on a best-interests-of-the-child standard?

Do you believe that anyone walking in off the street may do that, as against the parents' constitutional claim?

Mr. Olson: Your Honor, the cases that we have cited to the Court and in the appendix show that it is normally deceased parent... grandparents of deceased parents...

Justice Souter: That's not my question.

The supreme court of Washington read its statute as saying just what I... my question assumed.

Anybody can make a claim under the statute.

Do you believe that anyone, as against the parental claim of a constitutional right to control the upbringing of their children, is... may constitutionally get a... an order for visitation or some interference with parental rights solely on a best-interests-of-the-child standard?

Mr. Olson: The best-interests-of-the-child standard does restrict who may petition, and the any person language addresses those people who have relationships with the child or who has some meaningful reason...

Chief Justice Rehnquist: Mr. Olson...

Justice Souter: That's now what the supreme court of Washington said.

Chief Justice Rehnquist: Mr. Olson, I think I disagree with Justice Souter as to the standard you have to meet, but I think we're both focusing on the same kind of thing.

My understanding is that, unless you're talking about the area of the First Amendment, if a statute is to be stricken down on its face, as the supreme court of Washington did here, you must... the person supporting that must show that there are no possible applications of the statute that would be permissible.

So... but whether Justice Souter is right that you have to show that almost all applications would be permissible, or whether I'm right that you have to show just that an appli... I'm still not persuaded that you have shown even that the order in this case is... avoids constitutional difficulties.

You say that the intrusion is minimal, and there are no religious or discriminatory implications.

Is that the substance of the constitutional test that you seek?

Mr. Olson: The only claim by the mother was that it was her decision, and there were no other constitutional issues raised by her at trial or anywhere in the court.

Justice Scalia: Why isn't that enough of a constitutional issue, that it is her decision?

I...

Mr. Olson: Well, that would extend the line of cases in Yoder to give constitutional weight to any decision of a parent, in that they could go to school...

Justice Scalia: Such as whether the kind can eat candy or not.

Mr. Olson: Well...

Justice Scalia: I really thought that was the parents' call.

Mr. Olson: Whether the parents be able to go to school and dictate what ideas or people who are associated...

Justice Scalia: Yes, don't you think...

Mr. Olson: In public schools...

Justice Scalia: You don't think?

Mr. Olson: I do not believe so.

Justice Scalia: You don't think.

I see.

Justice Souter: Suppose...

Justice Scalia: Where do you get the notion that the best interests of the child is the standard somehow in the common law world?

We certainly use that where there's been a divorce or separation, and you have to decide between the two parents, but when it's not the parents involved, can you give me any cases where... it would be in the best interests of a lot of children to take them away from their parents and give them to somebody else, but the parents have rights in the children.

Mr. Olson: Well, two questions there.

The common law question is in our footnote, I believe it's 45, Roberts v. Ward from New Hampshire, and many other cases held that it was common law to grant that visitation right, and your other question was...

Justice Scalia: To grant visitation rights?

Mr. Olson: To a person other than a parent, to a grandparent.

There were common law cases cited...

Justice Scalia: No, but I... you're talking about best interests of the child as though that's the generally well-accepted common law rule for what courts can do with regard to children.

They can do whatever is in the best interests of the child.

I don't... I'm unaware that that's our general rule at all.

Where there's a dispute between the parents, that will be resolved in the best interests of the child, but where it's a dispute between the parents and someone else, you think common law courts just say, well, what's in the best interest of the child?

It seems to me they say, well, what do the parents want?

They don't want the kid to eat candy, the kid doesn't eat candy.

Mr. Olson: Well, the courts do look at many factors under the best-interest-of-the-child standard as well as the fact that in some cases the parents themselves are responsible for creating the relationships that now the child requires, and the child does, we assert, have some constitutional claim here, and the court should balance all the interests involved, not just the parents.

Justice Scalia: Why?

Justice Stevens: May I ask this question...

Justice Scalia: The child does not belong the court.

The child belongs to the parents.

Justice Stevens: Is that a question, or...

Mr. Olson: It's the welfare of the children that the State is interested in.

Justice Stevens: I don't mean to get into this argument between the two of you.

I don't know if there was a question or not.

[Laughter]

But I did have this question for you.

As I understand, one of the problems with this statute is anybody's standing, but is it not true that there are a lot of statutes out there that give grandparents standing, and relatives, and I'd just like to ask you, what is the standard that is applied in most of the statutes throughout the country?

Mr. Olson: In 48 States, the standard is best interests of the child and no substantial harm, physical or mental, is required to be shown.

Justice Stevens: So that if we were to invalidate this statute on the grounds suggested in the questioning, we'd probably invalidate 48 statutes.

Mr. Olson: 48 States, that's right.

Justice Souter: When you refer to the 48 statutes, were you referring to the 48 statutes that give rights to the whole world, or 48 statutes that give rights to grandparents?

Mr. Olson: There are approximately four statutes that include the provision, any person.

The other statutes do attempt to limit to siblings or step-parents or grandparents.

What our statute does is, it admits that we are unable to foresee how relationships may be generated between children and significant adults.

Justice Breyer: Tell me something about your case.

I don't want to hear about the law.

I want to know something about your case.

All right.

Now, suppose I think the Constitution doesn't permit people to wander in at random.

Even if it's good for a child to learn the accordion, an accordion player couldn't come in and say, I want to visit once a year, even if the interference is trivial, all right.

So I start with that, and I also think maybe you could make out a case that yours isn't that case.

You have something special going for you, so that if it's applied to you, maybe you could win.

Now, I don't want to hear about how minimal an interference it is.

It isn't much of an interference to play the accordion once a year, okay.

I want to hear what's special about your relationship in your case that could overcome some kind of special burden that might be imposed before somebody can come in off the street and start hauling mothers into court.

Is there anything in your situation that's special and, if so, what?

Mr. Olson: The special nature involved in our case is that the children's father, Brad Troxel, is deceased.

The children had a 2-year relationship with the grandparents, staying in the grandparents' home every other weekend, and there was a substantial relationship from the ages of 1 and 3 until the action was filed and the children were 3 and 5 years of age.

There is that relationship.

There is the requirement, we hope, that the memory of the children's father will be preserved in the... by the grandparents, and that the growth of the children will be enhanced by knowing the kinship in the family, where they come from, and that is a very, very significant interest for the State to have in terms of how our children develop and what occurs with regard to their growth.

In terms of the harm question, Justice O'Connor, when children are taken away, or where there's significant grief or loss, a lot of time that pain goes deep within.

It will not resurface until the children are older, and there is loss of adult relationships...

Justice O'Connor: Well, what you're saying is that the loss of a substantial relationship can constitute harm, in your view.

Now, we don't know whether the Washington State court would deem that as a possible kind of harm, I gather.

Mr. Olson: Well, they created a higher standard of harm that will be then applied to grandparent visitation cases, of which they are more numerous than these stranger cases, which have not been shown to exist, but the higher standard will be applied to cases where the intrusion is slight.

Justice O'Connor: Well, excuse me, I didn't find where the Washington court ever defined harm.

Would you show me where it did?

Mr. Olson: I do not believe it did.

Justice O'Connor: Okay.

Mr. Olson: I believe that the standard that they used is not defined.

Justice O'Connor: Well, so as I said, we don't know what the State of Washington will do in interpreting the concept of harm.

Mr. Olson: And that's why our theory is that we leave for another day the difficult cases that the Court is raising and resolve this case.

Justice Breyer: All right, but are you satisfied... that is, suppose we were to say from your point of view that of course you must show a substantial relationship in the past, plus harm.

Now, some harm and loss of a substantial relationship could count as harm.

If it were that, then what happens to your case?

Mr. Olson: You mean, if that were the standard to be...

Justice Breyer: We're setting a constitutional standard.

We're not running public relation... domestic relations law, so suppose the outside limit were, the State's free to do this if it shows harm to the child, that loss of a substantial relationship could count as harm.

Mr. Olson: That could be a standard.

We're not asking the Court to adopt that standard for resolution of this case, because the best-interests-of-the-child standard was sufficient under our theory to resolve this case.

Justice Breyer: If that were the constitutional standard, what would happen to your case?

Would you lose?

Mr. Olson: No.

I believe that there is a substantial relationship, and there would be evidence of harm.

However, the appellate court and the supreme court never got to that question because we never developed it, and at the trial court it was stipulated that it was in the best interests of the children to visit their grandparents.

The only question before the trial court was what was the duration of the harm.

Justice Ginsburg: Mr. Olson, may I ask you to go back to the 48 States that you claim... it wasn't my understanding that those States simply say best interest, period, and also it's not my reading of the Washington supreme court decision that they passed on the constitutionality of that other provision that does set standards, that doesn't have just some broad best interest, but doesn't set standards that can be applied by judges.

Mr. Olson: Well, most of the States state that the best interests of the child is the touchstone, and that other factors may be considered, and it is the best-interests-of-the-child standard including but not limited to the following factors.

In family law cases, because they're so complex, the facts and circumstances dictate the factors that we consider in a trial, and I do not believe...

Justice Ginsburg: But is there any State legislature that has said, just best interests without any guidance at all about what comprises...

Mr. Olson: Some States set forth factors as guidance.

Justice Ginsburg: How many are like Washington that don't... that say best interests, period, nothing else?

Mr. Olson: I would have to look closer at that.

Kentucky has an any person statute, as does Connecticut, and Washington and California.

As to whether or not there are any standards or factors set forth in those statutes, I'd have to look at that again.

Justice Souter: Mr. Olson, let's assume that this Court at least agreed with you to some extent and said yes, given the special relationship that grandparents may normally establish with their children, some heightened standard less than the harm that might be necessary for the State to move in would suffice to justify overcoming the parents' constitutional claim of their rights to bring up the children without interference.

Let's assume that we held that was the law.

Wouldn't you be faced with this, nonetheless.

The case would go back to the State of Washington, and the Washington supreme court would say, well, we certainly accept the U.S. Supreme Court's view of the limitations on the parental Federal constitutional rights.

We accept that, of course.

However, we don't have a statute here any more.

The statute is unconstitutional.

It's unconstitutional regardless of its application to grandparents.

It's unconstitutional because, as we have already explained, its great breadth and its low statutory standard with respect to other third parties, and therefore what we've got is a very interesting statement from the Supreme Court on what the law is.

But you have come into court, grandparents, with a statutory claim, and we have declared the statute unconstitutional because of its many unconstitutional applications regardless of its application to you.

Therefore, we can't give you any relief.

Would that happen if the case went back to Washington, or wouldn't it?

Mr. Olson: If I understand your question that would, I believe, be a facial attack on the statute that shows that it...

Justice Souter: Well, isn't the supreme court of Washington entitled to decide how broad an attack on its own statute it will allow?

Mr. Olson: It would need to apply the standard that no case exists under which the statute...

Justice Souter: Why does it have to apply that?

That's the standard that we apply, or it may be the standard that we apply...

[Laughter]

in Federal constitutional challenges to Federal statutes, but if Washington as a matter of State law wants to entertain broader challenges, and if Washington, as a matter of State law, says we don't have to narrow our statutes in order to try to save them, isn't that, or are not each of those decisions perfectly within the competence of the supreme court of Washington?

Mr. Olson: It may be, Your Honor.

We would argue again that...

Justice Souter: But if those two decisions are within the competence of the State of Washington, then we could send this case back with a ruling on grandparents and there still wouldn't be any Washington statute, and you'd still lose in Washington, wouldn't you?

Mr. Olson: Well, that may be.

Justice Souter: Yes.

Mr. Olson: I'd like to reserve the rest of my time.

Thank you.

Argument of Catherine W. Smith

Chief Justice Rehnquist: Very well, Mr. Olson.

Ms. Smith, I hope you will address yourself to the question that we've also addressed to Mr. Olson, whether the... what exactly was the visitation order in this case?

Was it one weekend a month?

Mr. Smith: Yes, Your Honor.

Chief Justice Rehnquist: Whether an order of one weekend a month on the facts of this case violates the Federal Constitution.

Mr. Smith: Yes, Mr. Chief Justice, and may it please the Court, I will do so immediately.

I believe that this visitation order in this case was unconstitutional.

The order provided for one weekend a month from 4:30 Saturday until 6:00 p.m. on Sunday.

It also provided for notification provisions regarding the girls' activities to the grandparents, for what amounted to a court-ordered birthday party on the grandparents' birthdays, and it also provided how the parties would address the children, or one of the children, in which there was a dispute.

The order violated...

Chief Justice Rehnquist: Did you say address, or dress?

Mr. Smith: Address.

Chief Justice Rehnquist: Address.

Mr. Smith: Address.

The...

Justice O'Connor: You mean the name, the use of the name?

Mr. Smith: Yes, that's true.

Justice Ginsburg: And a week in the summer, was it?

Mr. Smith: There was a week in the summer, also.

The order violated the mother's rights to make these decisions absent evidence that the children were being harmed, and Justice O'Connor, in response to your question about what constitutes harm, in fact the Washington courts have been working on these issues for many years.

They have addressed harm in other circumstances.

In the case In re Sumey, which is in the briefs, they talk about the fact that they protect the physical and mental health of children.

This Court has also talked about the fact that the State can only come in under circumstances in which the health and safety of children is being jeopardized.

Chief Justice Rehnquist: When you say this court, you mean the supreme court of Washington?

Mr. Smith: No.

I mean the Supreme...

Chief Justice Rehnquist: This Court.

Mr. Smith: This Supreme Court, in Yoder, and in Santosky both the majority opinion and Justice Rehnquist's opinion in dissent talk about the fact that the State will step in when harm to the child is being threatened.

That is, in fact, the proper standard under our Constitution.

Justice Breyer: Suppose the divorce...

Justice Stevens: Under that standard there would be no relief for a grandparent even if the visitation order was 20 minutes every 6 months.

Mr. Smith: That's correct, Your Honor.

That decision...

Justice O'Connor: Now, there are a number of statutes around the country in different States that specifically address the right of grandparents to seek visitation orders, are there not?

Mr. Smith: Yes, there are.

Justice O'Connor: How many States have that kind of legislation?

Mr. Smith: I believe it's 38, but I'm not exactly sure on the count.

Justice O'Connor: So apparently, in your view, all of those are unconstitutional?

Mr. Smith: No, Your Honor.

Justice O'Connor: Out.

Gone.

Mr. Smith: No.

Justice O'Connor: Why?

Mr. Smith: Because first of all there may be circumstances under which a grandparent visitation statute could be enacted, and in many of those States...

Justice O'Connor: Well, we have 38 of them.

Now, as I understand your view, most of those are unconstitutional.

Mr. Smith: No.

Justice O'Connor: If they speak in terms of the right of a grandparent to seek visitation based on best interest, in any event.

Mr. Smith: If they rely on a strict best interest standard, without creating a burden of proof and a presumption that the parent is, in fact, acting in a child's best interests, yes, I do believe those statutes unconstitutionally impair a parent's right to make decisions...

Justice Stevens: Yes, but what if...

Mr. Smith: about their child.

Justice Stevens: they acknowledge those presumptions but do not have a requirement of showing harm?

Mr. Smith: Excuse me, Your Honor.

I didn't hear the beginning of the question.

Justice Stevens: What if those statutes acknowledge all those presumptions and say there's a presumption that the parents are the final say on what goes on...

Mr. Smith: Uh-huh.

Justice Stevens: and the grandparent may not have visitation rights unless the grandparent can prove that absent visitation rights the child will be seriously harmed?

Mr. Smith: I believe that those statutes violate the constitutional rights of the parents.

Yes, I do.

Justice Breyer: Well, what do we do in... I mean, unhappy families are all different, and...

Mr. Smith: And so are happy ones... yes.

Justice Breyer: what happens where there are custody proceedings, there are very complex situations, where children... suppose you're already in court in a domestic relations case and there's some complex situation, has to do with a stepfather, cousins, no relationships... there are all... and sometimes domestic relations judges have to work out very, very detailed orders in highly complex situations, and do you want to say there, too, what we're doing is giving a constitutional veto to a natural mother, where she's already in court and it's one of these complex situations?

I mean...

Mr. Smith: Yes.

Justice Breyer: Yes?

Mr. Smith: Yes.

Justice Breyer: Well, what are we going to do to circumstances where the mother has problems, where they've been raised by foster families, where there are schooling problems, where there's a search for stable relationships, where the child's interest is what the judge is thinking of, and sometimes he has to work out something that's highly detailed.

Why should the mother in that kind of ongoing situation suddenly have a kind of veto?

Mr. Smith: Your Honor, in that circumstance I believe the court would be able to find harm under the circumstances that would allow the parent's decision to be overridden.

The point is that the court has to have a level at which they start making decisions, the State starts making these decisions instead of the parent, and the best-interest standard alone is insufficient.

It's particularly insufficient when it is characterized, as it was in this statute, and it was characterized by this Court, as simply the State saying what it thinks that the best interest of the child is, as opposed to the parent.

Justice Kennedy: Could you have answered Justice Breyer by saying that where custody is in issue, best interest then becomes the standard.

Mr. Smith: Well, I...

Justice Kennedy: But where visitation is an issue, it is not, or do you make that distinction?

Mr. Smith: Well, I do make the distinction, but perhaps in a slightly different way.

When custody is at issue between parents, for instance, there is a best-interest standard that should be applied between the parents, because you've got a neutral playing field there.

You have two people who have...

Justice O'Connor: Yes, but often these come up in contexts where it isn't between two parents.

There may be one parent who's impaired through drug abuse or something else, and you may have an aunt or a grandparent who's had the child all along, for years.

Now, what standard does the Constitution demand in a custody situation?

Mr. Smith: The right to assert the fundamental interest depends upon the relationship between the parent and the child, or the person who is acting in the parent relationship with the child.

This Court talked about the parameters of this in Moore, for instance, in which the grandmother was acting as the parent to the child.

It is the intimate family relationship between the parent and the child that creates not only the right but the obligation to make these decisions for children.

Justice Kennedy: And are you saying that all we need to decide here is that that right applies when custody is conceded?

Mr. Smith: Yes.

That's... that is what we're saying.

We have a perfect...

Justice Breyer: You're a domestic relations... are you... you know a lot about this area, I hope.

Mr. Smith: Yes.

Justice Breyer: Okay, good.

Mr. Smith: I hope so, too.

Justice Breyer: So are there... look, if we get out of the problem I raised in that way...

Mr. Smith: Uh-huh.

Justice Breyer: what is also lurking in the back of my mind is not this case.

I'm not thinking of this case.

Mr. Smith: Uh-huh.

Justice Breyer: I'm worried about words that will affect other cases.

Now, are there other kinds of proceedings where it's not exactly custody, but there's this kind of complexity that's worrying me, where the stability of the child... you know, and you can't say harm.

The judge is out there writing a rather detailed order, and he can't prove harm in respect to every word in that detailed order.

Are there other things we should be writing into this that this case isn't?

Mr. Smith: I am not aware of another circumstance in which this type of intrusion occurs, where you have a third party coming into court and asking for associational rights with the child, essentially.

Now, there may be circumstances under which people want to have children do other things, but I believe that the lower courts are perfectly capable of looking at the differences between deciding whether a parent is not acting in the best interests of the child which I believe, Your Honor, is sort of... I think it was Justice Kennedy who said, this is sort of the flip side of the harm analysis, and having a court independently substitute its decision of what's in the best interests of the child.

And the difference is this, and the reason it is so important in domestic relations that this distinction be made is that if you put the burden on someone to show harm, as that will be defined and as it has been defined in many cases in Washington... and most particularly I would ask the Court to look at the Littlefield case which was decided 2 years ago in Washington and talked about harm in a relocation and travel situation.

If you put the burden on an individual to look at the parents' decision and see whether it is within the range of acceptable decisions, that is a very different thing than telling a court, as the courts were told in these statutes, you decide what you think is in the best interests of the child, and it's different, and it's important for two different reasons.

The first is, when judges are making decisions, when the State is making decisions in a best-interest situation, it's very much different than the sorts of decisions that most judges make under most other circumstances, where they're deciding whether somebody committed a crime or breached a contract.

Chief Justice Rehnquist: When you get... range that broadly, Ms. Smith, I'm very much bothered by the fact that the supreme court of Washington here struck down on Federal constitutional grounds an entire statute, not simply saying it couldn't apply in this case or that case, and I think our constitutional rule for Federal purposes is that to do that you have to show that no conceivable circumstances could the statute be constitutionally applied, and I take it you're taking that position.

Mr. Smith: That's correct.

Chief Justice Rehnquist: But the fact that there are all sorts of cases where it wouldn't be constitutional I don't think helps you, unless you can show that there are no cases in which it would be constitutional.

Mr. Smith: This statute does not provide a constitutional rule of law for the determination of when a visitation order is to be entered.

Justice Scalia: You're saying, even though they might come up accidentally with a result that you could have decided properly under a proper standard...

Mr. Smith: Yes.

Justice Scalia: the standard here, which is simply the best interests of the child, is always wrong...

Mr. Smith: That's...

Justice Scalia: as applied in every case to which this statute applies.

Mr. Smith: That's correct.

Justice Souter: What about custody cases?

Mr. Smith: Well, in a custody case... in a custody case between a third party and a parent, this standard would not be used in Washington, and it could not be used, I do not believe.

Justice Stevens: Would it be used in a dispute between the two parents in a divorce situation?

Mr. Smith: Well, the... it would have been used in Washington between 1974 and 1987.

The Washington legislature...

Justice Stevens: In a divorce situation do you think it was constitutional?

Mr. Smith: Yes, because you've got two individuals who have been acting as a parent to the child, and they, between the two of those... I mean, you've got to have a tie-breaker at that point, if they're disputing, but you don't need to have a tie-breaker under these circumstances.

We've already got a tie-breaker, and it is the fact that the parent makes the decision unless it's putting the child at risk, which...

Justice Souter: Would the statute... may I interrupt you?

Would the statute apply in a case in which the child had been brought up by one single parent, let's say the mother, who at all times during the child's upbringing was living with her own mother and father, and a question then arose as between, let's say, her mother, who had always been with the child just as much as she had.

Would the statute apply in that case?

Mr. Smith: For custody or visitation?

This statute?

Justice Souter: Yes.

Mr. Smith: Well, if the parent was making a choice to live with the parent, with her parents...

Justice Souter: Right.

Mr. Smith: Yes.

I...

Justice Souter: And then the day comes that she moves out.

Mr. Smith: And then the day comes when she decides to move out.

Justice Souter: Yes.

Mr. Smith: Now, under a properly drafted statute I certainly think that there might be circumstances under which, if the individual was completely cut off...

Justice Souter: Excuse me, but before you get to that, would the... would this statute apply in that case?

I assumed it would, frankly?

Mr. Smith: It could.

Justice Souter: The mother, after 10 years living with the child with her own mother, the child's mother takes the child and moves out.

Mr. Smith: Uh-huh.

Justice Souter: Her own mother wants some visitation.

The statute would apply in that case, wouldn't it?

Mr. Smith: The statute would apply, but I don't think it could be constitutionally applied, because it doesn't provide a constitutional rule of law.

Justice Souter: But earlier I thought you said that the best-interest standard determined the appropriate circumstances for a best-interest standard, which you admit in some narrower range, turned not on the blood relationship but between, in effect, the functional relationship, whether or not there was the kind of intimate association which is normally associated with parents, and I would have thought that in my hypo there would have been that extended intimate association, and that therefore, in my hypo the best-interest standard, on your own reasoning, would be constitutional.

Mr. Smith: The court makes a... well, parents may live with other individuals.

That does not give a parent-child relationship to those individuals with whom they live.

There's still one...

Justice Souter: So that there is a blood component to this.

Mr. Smith: Well, I don't think there necessarily has to be.

I don't think the court has to...

Justice Souter: Well, what about my case, then, in which the grandmother has had just as intimate a relationship with the child as the child's own mother?

Mr. Smith: Your Honor, respectfully I would suggest that they didn't have just as intimate a relationship, because the decision...

Justice Souter: You don't like the hypo.

[Laughter]

Mr. Smith: No, it's not that I don't like the hypo.

It's just that I think that... I mean, I don't know exactly why these people were living together, but I presume it was because the parent made the choice to live with her parents.

Justice Souter: Right.

Mr. Smith: And that was the choice that she made for herself and her child.

Justice Souter: Yes, and she went to work every day, and she left the child with the grandmother.

Is that a sufficiently intimate relationship or not?

Mr. Smith: No, not... the parent is making the decision how the parent-child relationship is...

Justice Stevens: May I ask you...

Mr. Smith: and who the child is going to associate with.

Justice Stevens: May I ask you to comment on a problem that concerns me?

I'm just really interested in your answer.

Take Justice Souter's hypothetical and assume that... we see in domestic relations fights sometimes children are used by one spouse against the other as part of the bargaining and so forth, and supposing you have a situation in which the mother of the child gets into a dispute with the grandmother that's totally unrelated to the welfare of the child, but decides for arbitrary reasons to deny visitation rights because it will further her ability to pursue whatever the dispute is...

Mr. Smith: Uh-huh.

Justice Stevens: Arbitrary in the sense of best interests of the child, but yet using the child as a weapon in a dispute like that.

I take it your standard would say, total control in the mother?

Mr. Smith: Absent evidence of harm.

Absent some indication that the...

Justice Stevens: No evidence of harm, except the grandmother just won't get to see the child she's been living with for the last 20 years.

Mr. Smith: Under a properly...

Justice Stevens: Or 10 years.

She'd be too old.

Mr. Smith: 20 years, I think the child...

Justice Stevens: Yes.

Mr. Smith: might be making the decision.

[Laughter]

Justice Stevens: Yes.

10 years.

Leave it at 10 years.

But that is the consequence, that it's an absolute veto unless the other side can prove harm to the child?

Mr. Smith: Yes.

Justice Scalia: And you would apply that, I suppose, also to the case of the no-good black sheep husband who has abandoned his wife and child, and then the wife dies, and the husband suddenly reappears and decides what will happen to the child, I take it?

Mr. Smith: No, I would not.

Justice Scalia: Why not?

Mr. Smith: Because I think it's both the combination of... well, this is the reason I said I'm not sure the biological relationship is the truly relevant one.

It's the fact that the parent, by definition, has the right and the obligation to make day-to-day decisions for the child, and this is exactly the sort of day-to-day decision that parents rather than the State should be making, and you...

Justice Scalia: Well, but this is a parent.

I mean, this is the father.

There's no doubt that he was the biological father, and I suppose he would be entitled to custody if he...

Mr. Smith: I think we're defining parent differently.

I'm defining parent in a way that acknowledges the fact that a parent parents a child, that...

Justice Scalia: You're saying there's got to be blood and a history of intimate association in practice.

Mr. Smith: That's correct.

Justice Scalia: Does the statute require that?

Bear in mind that you're trying to sustain the burden of saying that this statute is unconstitutional in all its applications, but you've just said that it's certainly not unconstitutional in the application where the parent who is trying to determine the future behavior of the child is this no-good black sheep father who hasn't been with the child.

Now, there's at least one situation where you could apply the rule of this statute constitutionally, right?

Mr. Smith: Well, the fact that the... no.

I don't believe so, because the fact that the biological parent, who has not acted as a parent to the child... he wouldn't have any standing under this statute.

Justice Souter: You'd say the statute would be irrelevant in that case.

Mr. Smith: Yes.

Who's going to be... somebody's taking care of the child, presumably.

Justice Souter: You would say the statute was irrelevant, but I don't have any reason to believe that the supreme court of Washington would say it was irrelevant.

I mean, that's not... what... your concept of parent as having the two factors does not seem to be the concept of the statute.

It certainly isn't defined that way.

Mr. Smith: Well, the court had before it, and I certainly don't think that they anticipated a situation... they had before it three fit parents, in which there was no question, and there's certainly no question in this case that those parents were fully capable of making decisions for the children, and that there was... there was nothing wrong with those decisions, except somebody who had the filing fee amount disagreed with them.

Justice O'Connor: Is there a statute left in Washington now to cover visitation...

Mr. Smith: Yes.

Justice O'Connor: and if so, what is it?

Mr. Smith: The statute that is now left in fact requires that there be a court action pending.

Justice O'Connor: Do we have that in the...

Mr. Smith: It is reproduced in the appendix to the brief of the petitioner.

It was not... and it would not have provided relief to the grandparents in this case, or the petitioner in this case or in any of the cases that were before the State supreme court because there was not a custody action pending.

It does...

Justice Ginsburg: Is that the normal, that a visitation application can attend some other proceedings, divorce, separation, custody, but can't be made at any time?

Mr. Smith: Well, I don't know if it's normal.

It's certainly the case in many jurisdictions that that is a triggering mechanism, and certainly the intrusion under circumstances like that is far less than it is in a situation like this, where any person at any time can seek visitation, because the parties are already in court at that point.

Somebody's going to be making a decision concerning this.

And when the Washington legislature passed that statute in 1996 they required not only that there be a custody action pending, but that the individual who is seeking visitation show a substantial relationship to the child.

They presumed that grandparents have such a relationship, but again, they required that there be a custody action pending, and it's the intrusion of coming into court that is, in fact, one of the things about this statute that is so pernicious.

You should not be placed in the situation that my client was placed in of coming in and defending a perfectly reasonable decision, because this started out as a dispute about whether these grandparents, who were never denied access, were going to see these children once a month or every other weekend, which is what they were seeking.

They wanted every other weekend overnight visitation with two girls who at the time were less than 2 and 4, and no one should be brought into court for that sort of dispute, and that's what the Washington supreme court recognized in finding that the parents in the cases before it had a statute unconstitutionally applied to them, because there was no standard for either allowing individuals to come into court, which individuals, when they could come into court, or what had to be proven in order for a visitation order, or any of the other little micromanagement that goes on in these sorts of orders, to be entered.

Justice Ginsburg: And there is an assumption that the Washington supreme court was talking about a fit parent who has custody?

Mr. Smith: That's correct, and that's what they had before them, and in fact I think it's quite clear that they thought they were applying this statute to these fact situations.

Justice Scalia: Can I come back to my no-good black sheep runaway...

Mr. Smith: Oh, sure.

Justice Scalia: runaway husband...

[Laughter]

because I'm worried about that being the case...

Mr. Smith: Yes.

Justice Scalia: where this statute might... maybe the answer to that case is that that husband would first have to seek custody of the children, and custody would be denied.

Mr. Smith: That... he would be denied custody.

Justice Scalia: Okay.

Mr. Smith: I believe.

Justice Scalia: But if he were granted custody, then you would say it would play out the same way your case does?

Mr. Smith: Yes.

Justice Scalia: Okay.

Mr. Smith: Because we have a situation... I mean, the Constitution, as it's been characterized by this Court, or interpreted by this Court, and as a matter of the way we've operated our society, we have parents make decisions about who children are going to visit with, what candy they're going to eat, how much television they're going to eat, and we don't take that decision away from them.

All those little decisions, the big decisions, all the things that raise children...

Justice O'Connor: All right, but now your own State of Washington has adopted a new statute to fill the gap, hasn't it?

Mr. Smith: Yes.

Justice O'Connor: And again, it bases it on the best-interests-of-the-child standard.

Mr. Smith: With a number of factors.

Justice O'Connor: Yes, but under the rule that you would have us adopt, that also is invalid.

Mr. Smith: I believe that the court... and I would encourage them to, and I may get the opportunity to, to have them apply a harm standard.

They did that in the Littlefield case with regard to relocation.

Chief Justice Rehnquist: They could easily have done it here, but they simply refused to.

Mr. Smith: Well, I think what they recognized is this, that they had a statute that allowed any person at any time to seek visitation, and at least with regard to that broad a statute, they believed that there had to be a showing of harm, and I think that it's important to recognize...

Justice O'Connor: But under your view, if we were to adopt it, this follow-up statute is also invalid...

Mr. Smith: I believe...

Justice O'Connor: on its literal language of the best-interest standard.

Mr. Smith: It would have to be interpreted by the court.

I believe that...

Justice O'Connor: To mean something else?

Mr. Smith: No.

I think that the court could characterize the best-interest standard as providing an appropriate protection for the parents' right, because... if it required a showing that the parents' decision under those circumstances was not in the best interest of the child, that would be the equivalent of a showing of harm.

Chief Justice Rehnquist: But if the supreme court of Washington wouldn't construe this statute to require harm, is there any reason to think they're going to construe the follow-up?

Mr. Smith: Well, the statute has factors involved in it.

It also requires that there already be the court intrusion.

I don't know, and they haven't had that case before them.

They had to consider what they were going to do in situations like this, where a third party was seeking visitation absent such an intrusion already occurring.

Justice Stevens: May I ask, in this case you appealed to the appellate court and the State court.

Did you argue, in addition to arguing the statute was unconstitutional, that the trial judge had engaged in too much micromanaging?

Mr. Smith: Yes.

Justice Stevens: And of course, if they'd accepted that argument, we wouldn't be here.

Mr. Smith: We wouldn't be here.

If they'd accepted my argument that they should apply what they'd been doing for 20 years with the State, there had to be another action pending.

Justice Kennedy: Can you tell me, in a case something like this, where the initial position of each side is rejected, then the court makes some Solomon-like midway compromise, in a case like that, would the parents... assume younger parents faced with well-financed grandparents... ever be entitled to 100 percent of their attorneys' fees, or do you have to be a prevailing party?

How does the attorneys' fees...

Mr. Smith: You know, I can tell... I can only tell you what happens in a situ... in most of these situations, and that is, in the course of the Solomonic division, the courts usually don't award fees.

I can certainly represent that to you, and I can also tell you that in the two other cases that were pending before the State supreme court, that in the other case in which I represented the parent, that the court below... because these decisions are made by the trial courts, who have just had themselves reversed... did not award fees to a client who was in much worse financial situation than the parents... than the grandparents.

Justice Scalia: As I understand... I understand the dichotomy you draw between a harm-to-the-child standard and a best-interests-of-the-child standard.

I'm not so sure about your fallback standard, which is, you think it would be okay if you applied not a best-interests-of-the-child standard, but a standard to the effect that the parent who has custody is not acting in the best interests of the child.

You don't think that that's much different from the judge deciding what is in the best interests of the child?

Mr. Smith: I absolutely do, and I think Justice Kennedy pointed out that it's really the flip side of that.

If you... and this goes back to something I was talking about earlier, which is the second reason the best interest standard doesn't work, and that is that when you tell the State or a court to make a determination of whether a parent is not acting in a child's best interest, the focus of the decision is much different than asking a court...

Justice Scalia: Oh, I see.

Mr. Smith: what is in a child's best interest.

Justice Scalia: I see.

You don't mean that what the parent has decided to do is not in the child's best interest.

You're applying a subjective standard?

Mr. Smith: No.

Justice Scalia: The court has to decide whether the parent subjectively is trying to do what is best for the child?

Mr. Smith: It's... the court has to look at whether the consequences of the parent's decision will be to harm the child.

In that circumstance, a parent would not be acting in a child's best interest.

It's the difference between asking in this case...

Justice Scalia: Well, no, no.

I mean, you could not harm the child, but still not be acting in the child's best interests.

Mr. Smith: Well, best interests I think has to be defined in a way that you recognize that there are all kinds of decisions that could be made about a child, and we may disagree about what is in a... I might think that it's in the best interests of my child to go out for football rather than to play the violin.

The choice of the outcome, as long as it's not harmful to the child, is the parents, and if you're making decisions that go towards that outcome, then somebody else shouldn't substitute their decision.

If I think instead that it would be in the best interests of my child to be in child pornography, then somebody else can step in and say, that is not a decision that can be in the child's best interest.

Justice Scalia: It's no different from harm, the way you're describing...

Mr. Smith: It is.

You're absolutely right, I don't think it's any different from harm, and the reason that it isn't is because it takes the focus away from the State making the decision to whether the parent's decision is within the range of acceptable decisions.

Justice O'Connor: May I ask you one last question here about what you urged the Washington court to do?

Mr. Smith: Yes.

Justice O'Connor: Did you ask the court to find the statute then being used constitutionally overbroad, applying the Federal standard for overbreadth...

Mr. Smith: Well...

Justice O'Connor: constitutional overbreadth?

Mr. Smith: The... this argument that's being made now that we... there's a difference between...

Justice O'Connor: Well, just answer my question.

Mr. Smith: I'm sorry.

No.

What I asked the court to do... first of all, I made an argument that they should rely on our State constitution, which they didn't address.

Then I asked the court to construe the statute narrowly so that it could be properly applied, and that under the facts of these cases these people could not seek the...

Justice O'Connor: Do you think, then, that the Washington supreme court applied a Federal constitutional overbreadth standard in striking the entire statute?

Mr. Smith: The court thought that the statute violated the Federal Constitution.

Chief Justice Rehnquist: Thank you, Ms. Smith.

Mr. Smith: Thank you.

Rebuttal of Mark D. Olson

Chief Justice Rehnquist: Mr. Olson, you have 2 minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

Justice Breyer, what I think is most important about the special question that you asked is that the father in this case, Brad Troxel, wanted the grandchildren to know their grandparents, and the State can continue to respect his views before he died, and Justice Souter...

Justice Ginsburg: But, of course, these children have a father now.

The mother's husband adopted...

Mr. Olson: It's a step-parent adoption, and 28 States permit visitation in step-parents adoption cases.

Justice Souter, your question, we don't read the Washington opinion to establish a different standard for facial invalidity, and no party argued for a different standard in the State court, and Mr. Chief Justice...

Justice Souter: They didn't say anything one way or the other about the standard they were applying.

Mr. Olson: It was not discussed.

And Mr. Chief Justice, the best-interests-of-the-child standard in the amended statute in Washington, 26.09.240, still is the basic best-interest standard that exists in 48 States.

It just says, include and consider these factors, but you're not limited to it, because the complex nature of State dissolution and family law cases dictates the factors.

We don't want to create an Internal Revenue Code to try to figure out how to ferret out these problems.

On the micromanagement, it's important to know that, regarding the use of the name, Isabel, it was the mother's request that the grandparents not call her Rose, to which the grandparents conceded.

That was put in the order.

All of the micromanagement issues were requested by the parents.

The grandparents conceded that, and that was to make the parents feel better so that that would be better for the children.

The...

Justice Ginsburg: I just want to go back to earlier, raising of the... are you suggesting that the grandparents accede to the rights that the dead father would have had, even though we're dealing with an adoptive parent, not a step-parent?

Mr. Olson: The problem with kinship, I believe, is that we can't ignore that the children had another parent, and that we want to respect the rights of that parent.

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Olson: Thank you.

Chief Justice Rehnquist: The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-138, Troxel against Granville will be announced by Justice O’Connor.

Argument of Justice O’connor

Mr. O’connor: This case is here on writ of certiorari to The Supreme Court of the State of Washington.

Section 26.10.160(3) of the Revised Code of Washington permits any person to petition a superior court at any time for the right to visit with a child and authorizes the court to grant a Visitation Right whenever visitation may serve the best interest of the child.

In this case the petitioners, Jennifer and Gary Troxel filed a petition under the Washington statute for the right to visit their granddaughters, the children of their deceased son.

The Respondent, Tommie Granville, the mother of the children, opposed the petition.

Granville agreed that her daughter should spend some time with their grandparents, but opposed the petition, because she objected to the amount of visitation asked for by the Troxels.

The Washington Superior Court granted the petition and entered a decree ordering visitation, one week in a month, one week during the summer, four hours on both of the grandparents’ birthdays.

The case ultimately reached the Washington Supreme Court, which held that the State's visitation statute unconstitutionally interferes with the fundamental right of parents to rear their children.

Unfortunately, the members of this Court were no more able to reach a resolution than were the parties to the case.

In a series of opinions filed with the Clerk of the Court today, we affirm the judgment of the Washington Supreme Court.

A plurality of four Justices; myself, the Chief Justice, Justice Ginsburg and Justice Breyer would affirm the judgment on the grounds that the application of the Washington Statute to Granville and her family violated her fundamental right to make decisions concerning the care, custody and control of her children.

Justice Souter, who has filed an opinion concurring in the judgment, agrees that the Washington statute violates the right of parents to rear their children but would affirm the judgment solely on the ground that the statute is unconstitutional on its face.

Justice Thomas who has also filed an opinion concurring in the judgment agrees that our Court has recognized a fundamental right of parents to rear their children, and would affirm on the ground that Washington lacks even a compelling interest in second guessing, a fit parents’ decision regarding visitation with third parties.

Justices Stevens, Scalia and Kennedy had each filed dissenting opinions.