It's no secret that grandparents, stepparents and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce or estrangement tear apart families, these caretakers may find themselves without any legal right to maintain contact with the children they love. If the children's parents or guardian object to a continuing relationship between a grandparent or other caretaker and the children, everyone involved may face enormous personal and legal trouble.

To protect the visitation rights of grandparents, and sometimes other caretakers -- foster parents, for example -- all 50 states currently have some type of "grandparent visitation" statute that allows grandparents to ask a court to grant them the legal right to maintain their relationships with loved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.

Twenty states have what are called "restrictive" visitation statutes, meaning that generally only grandparents are eligible for a court's visitation order -- and only if the child's parents are divorcing or one or both have died. All other states have more permissive visitation laws that allow courts to consider such a request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child. Some states even allow other caretaking adults -- not just grandparents -- to make such a petition.

Both kinds of visitation statutes have been challenged in court by outraged parents, who argue that permitting anyone other than parents to decide who can visit their children is an unconstitutional infringement on parents' rights to raise their children as they see fit. Permissive statutes, which allow visitation petitions even when a child's family is not going through divorce or coping with a death, have raised the most passionate legal challenges. And faced with this important skirmish in what can be described as a war between generations, courts have made different and often contradictory rulings.

Focusing first on the rights of parents to make all key decisions about their children, some state courts have ruled that giving grandparents the right to visit grandchildren when the parents object is unconstitutional. But in other states, courts considering very similar situations have focused on the needs of children in a world where the nuclear family is no longer the norm and have concluded that statutes allowing them to maintain close ties with loving adults -- even over the objections of parents -- are constitutional. These courts recognize the rights of parents to control their children's upbringing, but reason that permitting visitation is only a minor imposition on that right.

What's at Stake?

To tackle this critical problem of grandparent and stepparent visitation rights -- and to provide a constitutional framework that will permit all 50 states to adopt consistent rules -- the United States Supreme Court recently handed down a decision in the case of Troxel v. Granville, No. 99-138 (June 5, 2000). In this case, the Supreme Court reviewed a ruling by the state of Washington's highest court that struck down Washington's permissive grandparent visitation statute, calling it unconstitutional because it violated a parent's fundamental right to decide how to best raise their children. The Troxel case almost perfectly frames the issues at the heart of the grandparent visitation dilemma: Do competent parents have a constitutional right to deny grandparents and other caretakers visitation with their children, and does the state have the right to order such visitation over parents' objections, if it determines that such visitation is in the best interests of the child?

A Little History

The Troxel case is particularly important because it is the first time the Supreme Court has directly considered parents' rights to control the upbringing of their children since 1923. Then, it relied on the 14th Amendment to hold in Meyer v. Nebraska, 262 US 390 (1923), that parents had a fundamental right to make all key decisions concerning the welfare of their children and that it was unconstitutional to restrict their rights "to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children . . . and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

In the almost eight decades since the Meyer decision, times and family relationships have greatly changed. Not only are there far more divorces, single-parent families, unmarried parents, and remarriages, but the state regulates our family lives in ways unimaginable in the 1920's -- a time before seat belt laws, mandatory vaccinations or fluoridation laws.

What the Washington State Court Decided

To better understand the thorny human issues at stake when grandparents and other caretakers turn to courts to ask for access to beloved children, let's look briefly at the facts involved in the cases that went before the Supreme Court. At the risk of oversimplifying just a little, in the Troxel case the Court reviewed the Supreme Court of Washington's holding in a previous case called Smith v. Stillwell-Smith, 969 P.2d 21 (1998). This case in turn consolidated three cases from Washington's lower courts, all of which dealt with some aspect of the question of whether grandparents and other "third-parties" could be granted visitation over parental objections. Here's how the issue was raised in these three cases:

1. A man who lived for four years with a little boy and his mother asked a court for visitation rights after the couple broke up and his estranged girlfriend denied him the right to see the boy.
2. Grandparents asked a court for visitation rights with their two grandchildren after their son (who had lived with them after the girls' birth) committed suicide and the girls' mother decided to limit her daughters' ability to visit with their grandparents.
3. A family asked a court for rights to maintain contact with the daughter of their son, who was killed by his ex-wife's mother.

The Washington Supreme Court evaluated the petitioners' visitation rights under a Washington statute that permitted any person to request visitation at any time, as long as it could be shown that the visits would be in the child's best interests. When this law was called unconstitutional by the parents of the children -- who argued that only they should decide whom their child maintained contact with and that the state, via the courts, had no right to step in and make that decision for them -- the Supreme Court of Washington sided with the parents.

A majority of that court decided that the parents were right: Allowing non-parents to petition a court for visitation at any time -- and allowing the court to grant it whenever it felt visitation would best serve the child's interest -- violated the parents' fundamental right to decide how to best raise their children. It is interesting to note, however, that since none of the families were going through divorce proceedings when visitation was requested, and no one alleged that any of the parents were unfit to care for the children, the Washington court did not rule on the constitutionality of more restrictive grandparents' rights statutes (which limit court intervention to situations of divorce or death) common in many states.

What the Supreme Court Decided

The Supreme Court agreed with the Washington court and concluded that parents have a fundamental right to autonomy in child rearing. They found authority for this position in their previous rulings that upheld the rights of parents to choose private education for their children, Pierce v. Society of Sisters, 268 U.S 510 (1925), and the right of Amish parents to withdraw their children from public schools after 8th grade, Wisconsin v. Yoder, 406 US 205 (1972).

However, the Supreme Court disagreed with the Washington court's assertion that allowing a non-parent to petition for visitation rights would amount to an assault upon the integrity of the family unit. The Court stopped one vote shy of declaring the Washington statute unconstitutional and instead held that a lower court judge had applied the statute incorrectly.

To understand the Supreme Court's decision, it is necessary to briefly return to the facts of the second case considered by the Washington Supreme Court in Smith v. Stillwell-Smith, discussed above. These facts give rise to the Troxel decision. Tommie Granville and Brad Troxel, although not married, had two daughters, Isabelle and Natalie. When Tommie and Brad separated, Brad went to live with his parents, Jenifer and Gary Troxel. For a time, the girls visited Brad and his parents frequently, but, tragically, Brad committed suicide. A few months after Brad's suicide, Tommie Granville informed the Troxels that she would be limiting their visits with the girls to one short visit per month. The Troxels objected, and commenced an action in the Washington Superior Court to force Ms. Granville to allow them two weekend visits per month, plus two full weeks during the summer. Ms. Granville fought the action, and the rest, as they say, is history.

In the Troxel decision, the Supreme Court held that the superior court judge had approached the decision from the wrong perspective: Instead of presuming that Ms. Granville, as a fit parent, was acting in the best interests of her children, the judge presumed that the Troxel's request for additional visitation was in the children's best interests. This led the lower court judge to conclude that visitation should have been granted unless Ms. Granville could prove that the additional visits would have an adverse impact on the children. The Supreme Court found that this approach did not adequately protect Ms. Granville's fundamental right to make decisions for her children. By impermissibly substituting his own judgment for Ms. Granville's, the superior court judge's application of the Washington statute became unconstitutional.

The Court also appeared to be swayed by the fact that Ms. Granville was not seeking to cut off the Troxels' visitation entirely; instead, as noted, she chose to limit the visitation to one non-overnight visit per month, plus some special holidays. If Ms. Granville had tried to bar the Troxels from visiting their grandchildren completely, it is entirely possible that the Court would have reached a different conclusion.

It's also worth noting that not all of the Supreme Court justices agreed on this issue. Although the judgment of the Washington Supreme Court was affirmed, it was upheld only by a so-called plurality -- that is, less than a majority of the justices. The rest were as divided as many people probably are on this issue. In one concurring opinion, a justice argued that the statute itself was unconstitutional, and should have been overturned. In dissenting opinions, one justice stated that children should be protected against the "arbitrary exercise" of parental rights, while another argued that these cases should be decided on the basis of whether the third party seeking visitation has ever acted as a caregiver to the child, and whether cutting off visits from this third party would harm the child.

How the Troxel Decision Affects Other States

These states don't see grandparent or caretaker visitation as a severe restriction on the right of parents to control the upbringing of their children. Instead, they classify visitation as only a slight burden on that right -- one that ranks far below taking a child away from a dangerous home, or awarding custody to one parent or another. Because they see occasional visitation with grandparents as only a slight burden on parental autonomy, constitutional law doctrine dictates only that the state justify it with a "rational" reason. Preserving the right of children to maintain strong bonds with their grandparents qualifies as such a reason, making grandparent visitation statutes constitutional under this standard.

Given the Supreme Court's decision in Troxel, it's likely that parents will attempt to challenge the laws in states with statutes like these. And, given the breakdown of votes on the Supreme Court, the Court will most likely revisit the issue down the road.

In the meantime, judges in these states may be more circumspect in their application of the statutes, and will certainly be more careful to take parents' decision-making processes into account when resolving disputes.

Stay Tuned for More

The Supreme Court's decision in Troxel is certainly not the final word on grandparents' visitation rights. The split among the justices, as well as the differing state statutes, mean that the issue is far from resolved.

Grandparents, caretakers or parents involved in a struggle about visitation can find out more information on their state's current statutes by going to Nolo.com's Legal Research Center at http://www.nolo.com/statutes/state.html (then searching their state's statutes for "grandparent visitation") or by visiting their local law library.

In order to understand what your state's statute permits, be sure to determine:

1. Who may petition? Just grandparents, or can other caretakers also request visitation?
2. When may the petition be filed? Is it necessary that the child's family be in divorce proceedings, or that there has been a death of a child's parent, or that a child be born out of wedlock?
3. On what basis may the petition be granted? What factors does a court look at when making a decision, and whose burden is it to establish them?

Finally, grandparents concerned about maintaining visitation with beloved grandchildren who are facing parental resistance might consider requesting that the children's parents engage in mediation with them. This way, you have a chance to hammer out an agreement that avoids litigation altogether. The purpose of mediation is to engage the services of a neutral third party to create a legally binding agreement that everyone can respect and live with. The advantage to mediating your visitation dispute, rather than ending up in court, is that you are in control of the process. You might have to compromise on some things, but at last you'll have a chance to explain your point of view and your feelings. Litigation, in contrast, is such an adversarial process that it can transform all disputes into all-out war. And at the end of the case, the judge (not the parties) makes a decision under laws that may seem fair to neither side.

If you're interested in mediation, here are some national organizations that can help you find resources in your area: