*1 TROXEL et vir v. GRANVILLE No. 99-138. Argued January 2000—Decided 5, 2000 June *2 J., O’Connor, announced the judgment of the Court and delivered an opinion, in which Rehnquist, Ginsburg J.,C. and Breyer, JJ., joined. Soutbr, J., 75, p. post, J., post, p. 80, Thomas, opinions filed concurring in the judgment. Stevens, J., post, 80, p. Scaula, J., post, p. and Kennedy, J., post, p. filed opinions. dissenting
Mark D. Olson argued cause for petitioners. With him on the briefs was Schnapper. Eric
Catherine W. Smith argued cause for respondent. With her on the brief was Howard M. Goodfriend.*
*Briefs of amici curiae urging reversal were filed for the State of Wash- ington et by al. Christine O. Gregoire, Attorney General of Washington, and Maureen Hart, A Senior Assistant Attorney General, and by the At- torneys General for their respective States as follows:Mark Pryor of Ar- kansas, Bill Lockyer of California, Ken Colorado, Salazar of I. Earl Anzai Hawaii, of Carla J. Stovall Kansas, of Jeremiah W. (Jay) Nixon of Mis- souri, Joseph P. of Mazurek Montana, Farmer, J. Jr., John Jersey, New Heidi Heitkamp of Dakota, North Betty D. Montgomery Ohio, and Paul G. Summers of Tennessee; for AARP et by al. Rochelle Bobroff, Bruce Vignery, and Schuster; Michael for Grandparents for United Children’s Rights, Inc., by Judith Sperling Newton and Carol M. Gapen; for the National Conference of State Legislatures by et al. Richard Ruda and James 1. Crowley; and for the Grandparent Caregiver Law Center of the Brookdale Center on Aging.
Briefs of amici curiae urging affirmance were filed for the American Academy of Matrimonial Lawyers by Barbara Ellen Handschu and San- Ain; K. for the American Center for Law and ford by Justice Jay Alan Sekulow, Colby May, Vincent McCarthy, and John P. for Tuskey; American Civil Liberties Union et al. by Coles, Matthew A Michael P. Adams, Weiss, Catherine and R. Steven Shapiro; for the Coalition for the Restoration of Parental Rights by Karen A Wyle; for the Institute for Justice et al. by Mellon, William H. Bolick, Clint Bullock; and Scott G. for the for Center the Original Intent of the Constitution Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby, S. Gregory Baylor, and H. Esbeck; Carl for the Legal Lambda Defense judgment O’Connor announced the Justice of the Court opinion, and delivered an in which The Chief Justice, Jus- Breyer join. and Justice tice Ginsburg, 26.10.160(B) Section the Revised Code of permits “[a]ny person” petition superior court for visi- rights tation “at time,” and authorizes that court to grant rights such visitation whenever “visitation serve the best interest of the child.” Petitioners Jenifer and Gary petitioned Troxel Washington Superior Court for right grandchildren, to visit their Isabelle and Natalie Respondent Troxel. Tommie Granville, the mother of Isa- belle opposed and petition. Natalie, ultimately The ease reached the Washington Court, which held that §26.10.160(3)unconstitutionally interferes with the funda- parents mental to rear their children.
I
Tommie Granville
Brad
and
relationship
Troxel shared a
that ended in June 1991. The two
they
married,
never
but
daughters,
had two
Isabelle and
Gary
Natalie.
Jenifer and
Troxel
parents,
are Brad’s
paternal grandpar-
thus the
ents of Isabelle and Natalie. After Tommie
sepa-
and Brad
rated in 1991, Brad lived
with his
regularly
brought
daughters
parents’
his
to his
home for weekend visi-
tation. Brad
May
committed suicide in
Although
1993.
Troxels
first continued to see Isabelle and Natalie on a
*4
regular basis after their son’s death, Tommie Granville in-
and Education Fund et
Patricia M. Logue,
by
al.
Harlow,
Ruth E.
and
Dohm;
Beatrice
for the
of
Society Catholic Social
by
Scientists
Stephen M.
Krason and
Garnett;
Richard W.
and for Debra
M.
by
Hein
Stuart Wilder.
of
amici curiae were filed for the Center for
Briefs
Policy
Children’s
Practice & Research at the
of
University
Pennsylvania by Barbara Ben-
Woodhouse;
nett
for the
(Mich-
Domestic Violence Project, Inc./Safe House
igan) et
al. Anne L. Argirojf
by
Routt;
and Ann L.
for the National Associ-
ation of Counsel for Children by Robert C. Fellmeth and Joan Hollinger;
and for the Northwest Women’s Law
Center et al.
Cathy J. Zavis.
formed the Troxels in October 1993that she wished to limit
daughters
their visitation with her
per
one short visit
month.
In re Smith, 137
1, 6,
Wash. 2d
21,
969 P. 2d
23-24
(1998);
App.
In re Troxel, 87
131,
Wash.
133,
In December 1993, Troxels present commenced the ac- by filing, Washington tion in the Superior Skagit for Court County, petition rights to obtain visitation with Isabelle and petition Natalie. The Troxels filed their under two Washington §§26.09.240 statutes, Wash. Rev. Code 26.10.160(3)(1994). Only the latter statute is at issue this 26.10.160(3)provides: “Any case. Section person may peti- rights tion the court including, for visitation at time but custody not proceedings. limited may to, The court order rights any person visitation for when visitation serve the best of the interest child whether or not has there been any change of circumstances.” At trial, the Troxels re- quested overnight two of weekends per visitation month and two weeks of each op- visitation summer. did Granville not pose altogether, visitation but instead asked the court to day per order one overnight stay. visitation month with no App., 87 Wash. at 133-134, 940 P. at 2d, 699. In 1995, the Superior Court issued ruling an oral entered visitation ordering decree per visitation one weekend month, one week during the summer, and four hours on petitioning both grandparents’ birthdays. 2d, Wash. at 2d, 969 P. App. 23; to Pet. for Cert. 76a-78a. appealed, during
Granville time Kelly which she married Wynn. addressing Before appeal, merits of Granville’s Appeals Court of remanded ease to Superior entry findings for written fact and con- clusions of 2d, law. Wash. 2d, 969 P. at 23. On Superior remand, Court found that was Isabelle’s and Natalie’s best interests: [the
“The Troxels] part large, Petitioners are aof cen- loving family, tral, all located in this and the Peti- area, *5 provide tioners can opportunities for the children in the areas of cousins and music.
.. The court took into all consideration regard- factors ing the best interest of the children and considered all testimony the before it. The children would be bene- fitted spending from quality time with the Petitioners, provided that that time is balanced with time with the [sic] childrens’ family. nuclear The court finds that the [sic] childrens’ best interests are served spending time with their stepfather’s mother and other six chil- App. dren.” 70a.
Approximately nine months Superior the after Court en- its tered order on remand, Granville’s husband formally adopted Isabelle and Natalie. Id,, at 60a-67a. Washington
The Appeals Court of reversed the lower court’s visitation order and dismissed the Troxels’ petition for holding visitation, that nonparents standing lack to seek §26.10.160(3) visitation under custody unless a action is pending. the In Appeals’ Court of view, that limitation on nonparental visitation actions was “consistent with the con- stitutional restrictions on state interference parents’ with liberty fundamental interest in custody, care, and man- agement of their children.” 87 App., Wash. at 135,940 2d, P. (internal omitted). quotation marks Having resolved statutory case on the ground, however, the Ap- Court of peals did expressly not pass on Granville’s constitutional challenge Id., statute. at 2d, 940 P. at 701.
The
granted
peti-
Troxels’
tion for review and, after consolidating their case with two
other visitation cases, affirmed. disagreed
court
Appeals’
Court of
decision on
statutory
issue plain
found that
language
§26.10.160(3)
gave the Trox-
els standing to seek
irrespective
visitation,
of whether a
custody action
pending.
was
2d,
Wash.
at 12, 969 P.
*6
at
Washington Supreme
2d,
26-27. The
Court nevertheless
agreed
Appeals’
the
with
of
ultimate
that
conclusion
the Troxels could not obtain visitation of Isabelle and Nata-
§26.10.160(3).
pursuant
lie
The court rested its decision
§26.10.160(3)
on the
holding
Federal Constitution,
that
un-
constitutionally infringes
right
on
par-
the fundamental
ents to rear their children.
In
view,
court’s
there were
problems
at least two
nonparental
with the
visitation stat-
according
Washington
First,
ute.
to the
Supreme Court, the
permits
Constitution
a State to
right
interfere with the
parents
only
prevent
to rear their children
poten-
harm or
26.10.160(3)
tial
to a
harm
child. Section
fails that standard
requires
because it
showing
no threshold
Id.,
of harm.
at
“
16-20,
2d,
969 P.
allowing 'any
28-30.
per-
Second,
petition
son’ to
for forced
'any
visitation of a
child
time’
only
with
requirement
being that the visitation serve the
best interest of
Washington
the child,” the
visitation statute
sweeps
broadly.
too
Id., at 20,
We
(1999),
certiorari,
II The demographic changes past century of make it dif- speak ficult to average of an family. American composi- tion of families greatly varies from household to household. many While children have two married grandparents regularly, who visit many other children are raised in single-parent households. In living 1996,children only with one percent accounted for 28 of all children age under 18 in the United Dept, States. U. S. of Com- merce, Population Census, Bureau of Reports, Current Population Profile of the United States 27 Under- standably, single-parent in these persons households, outside family upon nuclear are called increasing frequency everyday to assist in the tasks of rearing. many child In grandparents cases, play important an role. example, For approximately 4 million percent children—or 5.6 *7 all age children under 18—lived in the household of their grandparents. Dept, U. S. of Commerce, Bureau of Census, Population Current Reports, Marital Living Status and Ar- rangements: (1998). March (Update), 1998 p. i
The nationwide nonparental enactment of visitation stat- assuredly utes is part, due, in some recognition to the States* of changing these family. realities of the American Because grandparents and other relatives pa- undertake of duties rental in many nature sought households, States have to en- sure the welfare of by the children therein protecting the relationships those children form with parties. such third nonparental The States’ visitation statutes are sup- further ported recognition, which varies from State State, that children should opportunity have the to benefit from relationships statutorily with specified persons exam- —for ple, grandparents. their The statutory extension rights persons this area other than a parents, child’s however, comes with an obvious cost. example, For recog- the State’s independent nition of an third-party interest in a child can place a substantial burden on the parent-child traditional re- lationship. Contrary to Justice accusation, our Stevens’ description nonparental of state visitation statutes in these terms, of course, is not suggest meant to that “children are so much Post, chattel.” (dissenting opinion). 89 Rather, our terminology is highlight intended to the fact that these present can questions statutes import. constitutional In presented this just case, we are question. such a Spe- cifically, we asked §26.10.160(3), are to decide whether as applied to Tommie family, Granville and her violates the Fed- eral Constitution.
The Fourteenth provides Amendment that no State shall “deprive any person liberty, of life, property, without due process of long law.” recognized We have that the Amend- ment’s Due Process Clause, like its Fifth Amendment coun- terpart, “guarantees process.” more than fair (1997). Glucksberg, v. 521 U. S. The Clause also in- cludes a substantive component “provides heightened protection against government interference with certain fun- rights liberty damental Id., interests.” see 720; also Reno Flores, v. U. S. 301-302 liberty interest at issue in this case—the interest parents in custody, the care, and control of their children— perhaps the oldest of the liberty fundamental interests recognized by this years Court. More than 75 ago, in Meyer Nebraska, (1923), S.U. 390, 399, 401 we held that the “liberty” protected by Due Process Clause includes the to “establish a bring up home and children” and “to control the education of years their own.” Two *8 in later, Pierce Society v. Sisters, 268 U. 510, S. 534-535 of (1925), again we “liberty held that parents the guard of and right ians” includes the “to direct upbringing the and educa tion of children under their explained control.” We in “[t]he Pierce that child is not the mere of the State; creature those who nurture him destiny and direct his have right, the coupled high duty, the recognize prepare and him for obligations.” additional Id., 535. We returned the subject in Prince v. (1944), Massachusetts, 321 U.S. 158 and again confirmed that there is a constitutional dimension to right parents the upbringing direct the of their chil dren. “It is cardinal custody, with us that the care and nur ture of the child parents, reside first the primary whose
66 function and freedom include preparation obligations for state can supply neither nor hinder.” Id., at 166. subsequent
In eases we recognized also, have the funda right mental parents to make concerning decisions custody, care, and control their g., children. e. See, Stan ley (1972) (“It v. Illinois, U. 645, 405 S. 651 plain that the interest of a companionship, custody, care, and management of his or her ‘eome[s] children to this Court with respect momentum for lacking appeal when is made to lib erties which merely derive shifting from economic arrange ” (citation omitted)); ments’ Wisconsin Yoder, v. 406 205, U. S. (1972) (“The 232 history and culture of Western civilization strong reflect a parental tradition of concern for the nurture and upbringing of their primary children. This role of the parents upbringing in the of their children is now established beyond debate enduring an as tradition”); American Quil (1978) (“We loin v. Walcott, 434 246, U. S. recog have nized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. (1979) (“Our R., J. 442 U. S. jurisprudence histori cally has reflected Western concepts civilization family of the aas unit with parental broad authority over minor children. Our eases consistently have course”); followed Santosky Kramer, 455 U. S. (discussing “[t]he funda liberty mental interest parents of natural in the care, cus tody, management child”); of their Glucksberg, supra, (“In long line of cases, we have held that, in addition specific to the protected freedoms by Rights, Bill of ‘liberty’ specially protected by the Due Process Clause in cludes righ[t]... to direct the education and upbringing of one’s Pierce)). (citing children” Meyer light In of this precedent', extensive it cannot now be doubted that the Due Process Clause of the protects Fourteenth Amendment fundamental to make concerning decisions custody, the care, and control of their children. *9 26.10.160(3), Section applied as to family Granville and her in this ease, unconstitutionally infringes on that fundamen- parental tal right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute’s “[a]ny person text, may petition the court for visitation any rights at time,” and may grant eourt such visitation rights whenever serve the best interest of "visitation the child” §26.10.160(3) added). (emphases language That effectively permits any party third seeking visitation to sub- ject any by decision a concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the placed matter is be- judge, fore a parent’s decision that visitation would not be in the child’sbest interest is accorded no deference. Section 26.10.160(3) requirement contains no that a court accord the parent’s any presumption decision validity any weight whatsoever. Instead, places statute best-interest solely determination judge. the hands of the judge Should the disagree with the estimation of the child’s best judge’s interests, the view necessarily prevails. practical Thus, in effect, in the State Washington a eourt disregard can any overturn decision a fit custodial parent concerning visitation whenever a party third affected by the decision files a petition, visitation solely based on the judge’s determination of the child’s best interests. The Washington Supreme Court had the opportunity give to §26.10.160(3) reading, narrower but it declined to do so. g., See, e. (“[The Wash. 2d, at 969 2d,R at statute] allow[s] any person, petition to time, for regard without to relationship to the child, without regard changed circumstances, regard harm”); without id., (“[The at 20, 969 P. 2d, at statute] allowfs] ‘any person’ petition for forced visitation of a ‘any child time’ with the only requirement being that the visitation serve the in- best child”). terest of the
Turning to the facts of case, this the record reveals that Superior the Court’s order was precisely based on type the disagreement of mere just we have described and nothing Superior more. The Court’s order was not founded on special might factors justify that the State’s interference with Granville’s fundamental to make decisions con- cerning the rearing of her daughters. two To be sure, this case involves a petition filed grandparents soon the after death of their son—the father of Isabelle Nata- lie—but the combination of several factors here compels our conclusion §26.10.160(3), that applied, as exceeded the bounds of the Due Pi’ocess Clause.
First, the Troxels did not allege, and no court has found, that Granville parent. was an unfit aspect That of the case important, is for there is a presumption parents that fit act in the best interests of their children. As this ex- Court Parham,: plained in
“[0]ur system constitutional long ago rejected any no- tion that a child is the mere creature of the State and, on the contrary, parents asserted that generally have right, the coupled with high duty, recognize prepare [their children] for obligations. additional . . . The law’s concept of the family on rests a presumption that possess what a child lacks in maturity, ex- perience, and capacity judgment for required for making life’s difficult important, decisions. More historically it recognized has that natural bonds of par- affection lead ents act in the best interests of their children.” 442 (alteration S.,U. (internal original) quotation omitted). marks and citations Accordingly, long so parent as a adequately cares for his (i. her fit), children is<?., normally there will be no reason for inject State to private itself into the realm of family question further ability to make the concerning best decisions rearing of that chil- g., dren. e. See, Flores, 507 S.,U. at 304. problem here not that the Superior
Court intervened, but that gave when it did it special so, no weight at all to Granville’s daughters’ determination of her best importantly, interests. More appears it Su- perior applied exactly the opposite presumption. In reciting its ruling oral after closing conclusion of *11 ' arguments, Superior the judge Court explained:
“The burden is to show that is in it the best interest of the children to have some visitation quality and some time with their grandparents. I think in most situa- tions a approach [is eommonsensical that] normally it is in the best interest of spend the quality children time with the grandparent, grandparent, [sic] unless the there are some problems issues or involved wherein the grandparents, lifestyles their going are impact ad- versely upon the children. certainly That isn’t case here from what I can tell.” Report Verbatim Proceedings in (Wash. In re Troxel, No. 93-3-00650-7 Super. (hereinafter 1994), Ct., Dec. 14, 19, p. 213 Verba- Report). tim judge’s
The suggest comments presumed that he grand- parents’ request granted should be unless the children would “impacted] be adversely.” In judge placed effect, the on Granville, the fit parent, custodial the burden disproving that visitation would inbe the best interest daughters. of her judge reiterated moments [visitation later: “I think with Troxels] would be in the best interest of the children and I haven’t been shown it is [the] not in best interest of the children.” Id., at 214. The decisional framework employed by Superior
directly contravened the presumption traditional that a fit parent will act in the best interest of his or her child. See supra, Parham, at 602. respect, In that pre- court’s sumption provide any protection failed to for Granville’sfun concerning damental constitutional to make decisions daughters. g., rearing of her own Cf., e. Cal. Fam. Code 3104(e) (West 1994) (rebuttable § presumption Ann. grandparent par visitation is not in child’s best interest if agree rights granted); ents that visitation should not be Me. 1803(3)(1998) (court § may 19A, Rev. Ann., Stat. Tit. award grandparent visitation if in best interest of child and “would significantly any parent-child not relationship interfere with child”); parent’s rightful authority over the Minn. (court §257.022(2)(a)(2)(1998) grandparent Stat. award visitation if in best interest child and “such visitation parent-child would not with the relationship”); interfere Neb. 43-1802(2) (1998)(court § “by Rev. Stat. must find clear and convincing grandparent evidence” that not “will adversely parent-child relationship”); interfere with the R. I. § 15-5-24.3(a)(2)(v) 1999) (Supp. Gen. Laws (grandparent convincing rebut, must presumption evidence, clear and grandparent decision to refuse visitation was reasonable); 30-5-2(2)(e) § (1998) (same); Utah Code Ann. *12 (N. 1999) Berg, (holding N. W. 2d 291-292 D. Hoff v. North grandparent Dakota visitation statute unconstitu “compelling tional presum because State has no interest in ing rights grandparents visitation to an unmarried minor are in the forcing parents child’sbest interests and to accede grandparental court-ordered visitation unless the prove are first able to such visitation is not in the best inter child”). ests of their minor parents might In an world, ideal always seek to grandparents cultivate the bonds between grandchildren. and their say, Needless to however, our perfect, world is far from in it the decision whether such intergenerational an relationship any would be beneficial in specific parent case is for to make in the first instance. parent’s And, if a fit decision of the kind at here issue be subject judicial comes review, court must accord at weight special least some to the own determination. Finally, we note allegation is no that there that Granville sought ever to cut off entirely. visitation pres- Rather, the dispute ent originated when Granville informed the Troxels that she prefer would to restrict their visitation with Isa- belle Natalie to per one short visit month and special holidays. See 87 App., Wash. at 133, 940 P. at 2d, 699; Ver- Report batim 12. In the Superior Court proceedings Gran- ville did oppose not visitation but instead asked that the du- ration of visitation order be shorter requested than that by the Troxels. While the requested Troxels two weekends per month and two full weeks the summer, Granville asked Superior Court only to order day one per of visitation (with month no overnight stay) and participation Gran- family’s ville holiday celebrations. See 87 App., Wash. at 133, 940 2d, P. 699; Report Verbatim (“Right off the bat say we’d like to position that our is grandparent visita- is in tion the best interest of the children. It is a matter how much and structured”) how it going to be (opening statement attorney). Granville’s Superior gave weight no having Granville’s assented to visitation even the filing any before petition visitation subsequent or court intervention. The rejected court instead Granville’s proposal and settled ground, on middle ordering one week- end of per visitation month, one week in the summer, and time on both petitioning of the grandparents’ birthdays. See App., Wash. at 133-134, 940 P. 2d, 699; Verbatim Report Significantly, 216-221. many other expressly States provide by statute that courts not award visitation un- parent (or less has denied) denied unreasonably to the party. concerned third g., See, e. Miss. Code Ann.
§93-16-3(2)(a) (1994) (court must find that “the custodian of the unreasonably child grandpar- denied the *13 ent rights visitation child”); with Ore. Rev. Stat. §109.121(l)(a)(B) (1997) (court may award visitation if the “custodian of the child has denied the grandparent reason- able opportunity child”); §§ visit the R. I. Gen. Laws 15-5-
24.3(a)(2)(iii)-(iv) 1999) (court (Supp. must find that prevented grandparent visiting grandchild from and that way petitioner is no “there other is able to visit his or intervention”). grandchild her without court together Superior Considered Court’s reasons for awarding to the Troxels, the combination of these factors that demonstrates the visitation order in this case infringement was an unconstitutional on Granville’s funda- right concerning custody, mental make decisions the care, daughters. of her Superior and control two failed Court to accord the determination of Granville, fit parent, any weight. Superior custodial fact, material In only findings support made two formal of its-visita- part large, tion First, order. the Troxels “are of a central, loving family, [Troxels] all area, located in this can opportunities provide for the children in the of cousins areas App. “[t]he and music.” 70a. Second, children would be spending quality benefited from [Troxels], time with the provided that that time is balanced with time with chil- [sic] family.” drens’ nuclear findings, Ibid. These slender in combination with the presumption court’s announced grandparent favor visitation and its sig- failure to accord weight already nificant having Granville’s offered mean- ingful visitation to the Troxels, show that this case involves nothing simple disagreement more than a between the Wash- ington Superior concerning Court and Granville her chil- Superior dren’s best interests. The Court’s announced rea- ordering son for one week of visitation in the summer demonstrates our per- conclusion well: “I look back on some experiences always spen[t] sonal We .... as kids a week grandparents with one set of grandpar- and another set of [and] happened family ents, [it] it to work out in our enjoyable experience. Maybe turned out to be an can, family, in this Report if that is how it works out.” Verbatim explained, 220-221. As we have the Due Process Clause permit infringe does not a State to on the fundamental
73 to make child rearing decisions simply because a judge state believes a “better” decision could be made. Nei- ther nonparental gener- visitation statute ally places no limits on persons either the —which who petition for visitation or the circumstances in which such a petition may granted be Superior Court in —nor this specific required ease anything more. Accordingly, we hold §26.10.160(3), applied as in this case, is unconstitutional. Because we rest our decision on sweeping breadth of §26.10.160(3) and application of that broad, unlimited power in this ease, we do not consider the primary consti question tutional passed on the Washington Supreme Court—whether the Due Process requires Clause nonpa- all rental visitation statutes to include showing of harm or potential harm to the child as a precedent condition grant ing visitation. We do not, and need not, today define precise scope of the parental due process right in the visita tion context. In respect, this agree we with Justice Ken that the constitutionality nedy standard for awarding visitation turns on specific manner in which that stand ard applied and that the protections constitutional in this area are best “elaborated with (dissent care.” Post, at 101 ing opinion). Because much adjudication state-court in this context occurs a case-by-case on basis, we would be hesitant to hold specific nonparental visitation statutes violate the Due Process Clause per as a se g., matter.* See, e. Fair *A1150 States have statutes that provide for grandparent visitation in some form. See § Ala. Code (1989); 30-3-4.1 Alaska Stat. §Ann. 25.20.065 (1998); Ariz. Rev. §25-409 Stat. Ann. (1994); Ark. §9-13-103 Code Ann. (1998); Cal. (West §3104 Fam. Code Ann. 1994); Colo. §19-1-117 Rev. Stat. (1999); Conn. §46b-59 Gen. Stat. (1995); Del. Ann., Code 10, §1031(7) Tit. (1999); §752.01 Fla. Stat. (1997); Ga. §19-7-3 Code Ann. (1991); Haw. Rev. §571-46.3 Stat. (1999); Idaho §32-719 Code (1999); Ill. Stat., Comp. eh. §5/607 (1998); §31-17-5-1 Ind. Code (1999); §598.35 Iowa Code (1999); Kan. §38-129 Stat. Ann. (1993); Ky. (Baldwin §405.021 Rev. Stat. Ann. 1990); La. Rev. (West §9:344 Stat. Ann. Supp. 2000); La. Civ. Ann., Code (West Art. 136 2000); Supp. Me. Rev. Ann., Stat. 19A, §1803 Tit. (1998); McCarter,
banks v. 39,49-50, 622 Md. 2d 121, 126-127 A. best-interest standard in (interpreting grandparent visitation statute court’s normally consideration require of certain factors); Williams Williams, Va. *15 2d S. E. (interpreting Virginia nonparental visitation statute of harm as require condition finding visitation). precedent awarding criticizes our reliance on what he char- Justice Stevens acterizes as “a about the merely guess” courts’ Washington Post, at 82 (dissenting opin- 26.10.160(3). §of interpretation ion). Kennedy likewise states that “[m]ore spe- Justice cific should await a case in which guidance a State’s highest court has considered all of the facts course elaborat- ing afforded to protection the laws of the by Post, State and (dissent- Constitution by itself.” at 102 We ing opinion). There is no respectfully need to disagree. might hypothesize about how the courts Washington apply §26.10.160(3) because the Court did Washington Superior the statute in apply this case. very Like the Washington Court, then, we are with an presented actual visita- tion order and the reasons why believed Superior §9-102 Md. Fam. Law Code (1999); Ann. §119:39D Mass. Gen. Laws (1996); (West § Mich. Comp. Ann. Laws 1999); 722.27b Minn. Supp. Stat. §257.022 (1998); §98-16-3 Code Ann. (1994); §452.402 Miss. Mo. Rev. Stat. 1999); (Supp. §40-9-102 Mont. (1997); Code Ann. §43-1802 Neb. Rev. Stat. (1998); §125C.050 Nev. Rev. Stat. 1999); (Supp. N. H. Rev. Stat. Ann. §458:17-d (1992); (West §9:2-7.1 N. Stat. J. Ann. 1999-2000); Supp. N. M. §40-9-2 Ann. (1999); Stat. N. §72 Y. Dorn. 1999); Rel. Law (McKinney N. C. Gen. §§50-13.2,50-13.2A Stat. (1999); §14-09-05.1 N. D. Cent. Code (1997); Ohio Rev. §§3109.051, Code Ann. 1999); 3109.11 (Supp. Stat., Oída. 10, §5 Tit. 1999); (Supp. § Ore. (1997); Rev. Stat. 109.121 23 Pa. Cons. Stat. §§5311-5313 (1991); §§15-5-24 R. I. Gen. Laws 1999); to 15-5-24.3 (Supp. §20-7-420(33) S. C. Code Ann. 1999); §25-4-52 (Supp. S. D. Codified Laws (1999); §§36-6-306, Tenn. Code Ann. 1999); (Supp. 36-6-307 Tex. Fam. §153.433 Code Ann. 2000); (Supp. §30-5-2 (1998); Utah Code Ann. Vt. Ann., §§1011-1013 Stat. (1989); Tit. §20-124.2 (1995); Va. Code Ann. §§48-2B-l W. Va. Code (1999); to 48-2B-7 §§767.245, Wis. Stat. 880.155 (1993-1994); Wyo. §20-7-101 Stat. Ann. entry of the order was appropriate in this Paced ease. Superior §26.10.160(8) application Court’s to Granville family, and her Supreme Court chose not to give the statute a narrower construction. Rather, gave §26.10.160(3) court expansive literal and interpreta- tion. As explained, we have that broad plainly construction encompassed the Superior application Court’s of the statute. supra, See at 67.
There is thus no reason to remand the ease for further proceedings in the Washington Supreme Court. As Jus- Kennedy recognizes, the tice litigating burden of a domes- tic relations proceeding can itself be disruptive “so of the parent-child relationship that the constitutional aof custodial to make certain basic for determinations child’s welfare implicated.” becomes Post, at 101. In this litigation case, the costs incurred on trip Granville her *16 through Washington system court and to this Court are without a doubt already substantial. As explained, we have apparent it is that the entry of the visitation order in this case violated the Constitution. We say should so now, with- forcing out parties into litigation additional that would further burden parental Granville’s right. We therefore hold that the application §26.10.160(8) of to Granville and family her violated her process due right to make decisions concerning custody, care, and daughters. control her
Accordingly, judgment of the Washington Supreme Court is affirmed.
It is so ordered. Justice Souter, in the concurring judgment.
I concur in judgment affirming the decision of the Su- preme Court of Washington, whose facial invalidation of its own state statute is consistent prior with this Court’s eases addressing the substantive interests at I say stake. would no more. The issues might presented well by be re- viewing a decision addressing specific application of the
76 court, ante, 68-73, the trial at are not before
state statute us call for fresh and do not furrows any turning Moore “treacherous field” substantive due process. Cleveland, East 494, 502 Powell, 431 U. S. (opinion J.). invalidated its state Court Washington alone, the statute
statute
on the text of
not its
based
applica-
to
ease.1 Its
rested on
inde-
tion
two
any
ruling
particular
the failure of the statute to re-
sufficient
pendently
grounds:
to the child to
visitation order,
harm
quire
justify
disputed
Smith,
In re
137 Wash. 2d
969
2d
and
1, 17,
21,
(1998),
P.
at
time”
the statute’s authorization of “any person”
“any
for
to
receive visitation
petition
rights subject only
id.,
to a
standard,
best-interests-of-the-child
at
free-ranging
Ante,
at
I
20-21,
2d,
P.
at 30-31.
63.
see no error in
the second
the state
authorizes
reason,
because
statute
(and
award)
at
any
time to
person
request
judge
to the State’s
best-
subject
rights,
only
particular
1 TheSupreme Court of
ruling
made its
in an action where
cases,
three separate
Troxels’,
including the
had been consolidated. In re
Smith,
1, 6-7,
21,
Wash. 2d
969 P. 2d
23-24
The court also
§26.10.160(3)
statutes,
1996)
addressed two
Wash. Rev. Code
(Supp.
§26.09.240
former
Rev.
(1994),
7,
Wash.
Code
2d,
2d,
137 Wash.
P.
at
the latter of which
not
even at
Brief
issue
this case. See
for
9;
ante,
Petitioners
n.
see also
analysis
at 61. Its constitutional
dis
only
cussed
the statutory language and neither
of any
mentioned the facts
of the three cases nor reviewed the records of their trial
proceedings
court
2d,
13-21,
2d,
below. 137 Wash.
969 P.
at 27-31. The decision invali
dated both statutes without
their
addressing
application
particular
*17
but, written,
facts:
petitioners
“We conclude
have
as
standing
the statutes
violate the parents’ constitutionally protected
These statutes
interests.
time,
any person,
allow
any
petition
regard
at
for visitation without
child,
circumstances,
relationship to the
regard
changed
without
and
Id.,
5,
2d,
added);
without
to harm.”
at
969 P.
at
regard
(emphasis
23
see
(“RCW
id.,
26.10.160(3)
21,
2d,
also
at
969
at
P.
and former RCW
26.09.240
with a
impermissibly
parent’s
interfere
fundamental interest in
(citations
care,
the
custody and
of the child”
and internal
companionship
omitted)).
quotation marks
interests standard,
the state statute sweeps
broadly
too
and is unconstitutional on its face. Consequently, there is
no need to decide whether
required
harm is
or to consider
precise
the
scope of
parent’s
right or
necessary
its
protections.
We have long recognized
interests in the
nurture, upbringing, companionship, care,
custody
children are generally protected by the Due Process Clause
of the Fourteenth Amendment.
e.g.,
See,
Meyer v. Ne
braska,
statute allow a would court to award visitation whenever it thought it could amake better parent decision than a child’s (“It had done. See 137 2d, 20,969 Wash. at at 2d, P. is not province within the significant of the state to make decisions concerning custody merely of children because it could decision”).2 make a “better’ On that part, basis in the Su- preme Court of invalidated the State’s own stat- ute: right “Parents have a to limit visitation of their children persons.” with third Id., at 2d, 969 P. 31. eases,
Our it is true, have not set out exact metes and protected bounds to the interest of a in the relation- ship Meyer’s child, with his repeatedly recognized but upbringing would abe sham if it encompass failed to right to be judicially free of compelled by “any “any party” judge time” a believed he “could make a ‘bet- ter’ decision”3 than the objecting parent had done. The strength of a interest controlling in a child’s associ- ates is as obvious personal as the influence of associations on development of the child’s social and moral character. good Whether for or for only ill, adults not influence but indoctrinate children, and a choice about a child’ssocial com- panions essentially is not designation different from the the adults who will influence the child in school. Even a State’s judgment considered preferable about the politi- religious cal and character of schoolteachers is not entitled 2As Justice O’Connor out, points the best-interests provision “con tains no requirement that a court accord the parent’s decision any pre sumption validity weight Instead, whatsoever. the Washington statute places the best-interest determination solely in the hands of the Ante, judge.” at 67. Morales, 3 Cf. Chicago 41,71 527 U. S. (Breyer, J., concurring (“The part and concurring judgment) ordinance unconstitutional, not because policeman this applied discretion wisely or poorly in a partic case, ular but rather because the policeman enjoys too much discretion in every case. And if every application ordinance represents an exercise discretion, of unlimited then the ordinance is invalid in all its applications”). *19 prevail to over private a choice of school. Pierce, (“The supra, at theory 535 fundamental liberty upon governments all which in this repose Union any excludes general power of the State to standardize its children forcing accept them to public instruction from only. teachers is child the not mere creature of the State; those who nurture him and direct destiny his have right, coupled the high duty, with the recognize to prepare and him for addi- obligations”). tional It would be subject anomalous, then, to any to judge’s individual choice of a child’s associ- general ates from out of the population merely because the judge might think enlightened himself more than the child’s (and parent.4 say To the least as the implied Court Pierce), parental choice in merely such matters is not a de- fault rule in the governmental absence of either choice or government’s the designation power of an officialwith the for choose whatever reason and whatever circumstances. question Since I do not power the highest of a State’s court to construe its apply domestic statute and to demanding ruling standard when on its constitutionality,5 facial see Chi cago v. Morales, 527 U. S. 22 (opinion 41, 55,n. of Ste J.), this for me is the end of the case. I would simply vens, the affirm decision of the of Washington that its authorizing statute, grant courts rights any person time, is unconstitutional. I therefore respectfully concur judgment. in the
4The Supreme Court of Washington invalidated the broadly sweeping statute at issue on limited similarly reasoning: parents “Some and judges will not if care their child is physically disciplined by a person; third some parents and will care judges not if a person third teaches the child a reli gion inconsistent the parents’ religion; some judges and parents will not care if child exposed to or taught racist or sexist beliefs. But many parents judges care, and, will two, between parents should be ones to choose whether to expose their children to certain people or ideas.” 2d, (citation omitted). Wash. P. 2d, at 31 Kennedy’s Justice 5This is the pivot between approach and mine. concurring judgment. in the Thomas,
Justice argued party has separately to note that neither I write process wrongly eases were decided that our substantive due original understanding of the Due Process and that precludes judicial enforcement of unenumerated Clause provision. As a rights result, that I ex under constitutional press matter, and I understand view on the merits of this no plurality leave the of that issue for as well to resolution day.* another agree plurality
Consequently, I with the this Court’s recognition of a fundamental to direct upbringing of their children resolves this case. Our decision (1925), Society Sisters, in Pierce v. 268 U. S. holds *20 of right constitutional to rear their have a fundamental including educate children, to determine who shall plurality, opinions and socialize them. The of Justice recognize right, such a but Justice Kennedy, Souter curiously appropriate none of them articulates the standard scrutiny apply infringements of review. I would strict rights. Washington the State of lacks Here, fundamental legitimate say governmental nothing even a interest —to second-guessing compelling one—in fit decision regarding parties. basis, third On this judgment I affirm would below.
Justice Stevens, dissenting. today wisely
The Court to endorse declines either holding reasoning Supreme Washing- or the of the Court my opinion, In ton. the Court would have even wiser been deny problematic of the certiorari. Given character uniqueness trial of the court’s decision and pressing statute, there was no review a State Su- need to *This ease not challenge upon Privileges also does involve a based and Immunities and thus does not an to reeval- present opportunity Clause Roe, 489,527-528 See Saenz meaning uate the of that 526 U. S. Clause. (Thomas, J., dissenting). preme Court decision that merely requires legisla- the state ture to draft a better statute.
Having decided to address the merits, however, the Court begin by should recognizing that the Supreme State Court rendered a federal judgment constitutional holding a state law invalid on its face. light In judgment, I believe that we should confront questions the federal presented di- rectly. For the Washington statute is not facially made in- valid either because it may bé invoked many too hypo- thetical plaintiffs, or because it open leaves the possibility permitted someone be to sustain a relationship with a child having without prove that serious harm to the child would otherwise result. response
In to Tommie Granville’s federal constitutional challenge, the State broadly held that Wash. §26.10.160(3) Rev. Code 1996) (Supp. was invalid on its face under the Federal Constitution.1 Despite the nature of this judgment, Justice O’Connor would hold that the Washing- ton visitation statute violated the Due Process Clause of the Fourteenth only Amendment applied. as Ante, at 65, 67, 73 (plurality opinion). agree I with Justice ante, at Souter, 75-76, and 1 (opinion n. concurring judgment), that this *21 approach is untenable.
The task reviewing of a trial application court’s of a state statute particular to the facts of a case is one that should be performed in the first by instance the appellate state courts. In this case, because of their views of the Federal Constitu- tion, the Washington appeals state courts yet have to decide whether the trial court’s findings adequate were under the 1The State Supreme that, Court held “as written, the statutes violate the parents’ constitutionally protected Smith, In re interests.” 137 Wash. 5,1, 2d 969 P. 21, 23 2d
statute.2 of the trial court’s Any critique judg- as-applied ment that this offer could be based a only might upon about the state courts’ of that stat- State’s guess application of ute, and an assessment the facts in this independent that we are ill-suited and ill-advised case —both judgments to make.3 noted, As the the court trial dissenting judge appeals “[t]he on state
court
with
as to the
test to
presented
any guidance
proper
here was not
Troxel,
181, 143,
be
in a
such as this.” In re
applied
App.
case
Wash.
J.).
698, 703
P.
940 2d
While
(opinion Ellington,
disagreeing
appeals
majority’s
court
conclusionthat the
statute was constitu
state
infirm,
that
tionally
Judge Ellington recognized
despite
disagreement,
this
Rather,
not be
to
appropriate
simply
result would
affirm.
because
had been
proper
there
no definitive
as to the
construction
guidance
statute,
to order
findings necessary
objections
visitation over the
“[t]he
record,
of a
in
and I
are thus not
would remand for further
proceedings.” Ibid.
O’Connor, ante,
Unlike Justice
find no
in the
suggestion
69-70,1
trial court’s
applying any presump
decision this case that the court was
analysis,
tions at all in its
much
one in favor of the grandparents.
less
The first
excerpt
quotes
ruling,
from the trial court’s
Justice O’Connor
ante,
69, says
way
one
about who
nothing
another
bears
burden
under the statute of demonstrating “best interests.”
certainly
There is
no
against
indication of a
presumption
only
the parents’ judgment,
that,
estimation
usually
always,
“‘commonsensical’”
but not
visiting with
“
can be
for
grandparents
good
children.
Ibid. The second quotation, T
think
would be in the
[visitation]
best interest of the children and I haven't
ibid.,
children,’”
been shown it is not
of the
[the] best interest
sounds
concluded,
as though
simply
has
based on the evidence before
judge
him, that visitation in
would be in the
this case
best
of both
interests
Troxel,
girls. Verbatim
in In re
Report
Proceedings
No. 93-3-00650-7
(Wash.
Ct.,
Super.
p.
Dec.
These statements do not pro
14, 1994),
214.
vide us with a definitive assessment of the law the court applied regarding
Indeed,
a ‘^presumption”either
a different
way.
impression
conveyed
course,
very
balanced,
next comment: “That
to be
judge’s
has
Granville],
with Mx\
Wynn
and Mrs.
Tommie
who are
trying
[a.k.a.
children,
put together
family
includes
. . .
eight
trying
get
all
those children
at the
time
together
put together
same
some sort of
functional unit
can be
wherein the children
raised as brothers and sisters
spend
lots of
time
quality
together.”
judge
Ibid. The
then went on
reject
the Troxels’
to attain the
efforts
same level of visitation
*22
While I thus agree with Justice
in this respect,
Soutee
I do not agree with his conclusion that
the State Court made a definitive construction of the visitation statute
that necessitates
the constitutional
conclusion he would
draw.4
IAs
read the State Supreme Court’s
In
re
opinion,
Smith,
However one understands the trial court’s decision—and my point is merely to demonstrate that it is surely open to interpretation validity —its under the state statute as written is a judgment for the state appellate courts to make in the first instance. 4Justice Souter would conclude from the state court’s statement that the statute “do[es]not require the petitioner to establish that he or she has a substantial relationship with the child,” 137 2d, Wash. R 2d, that the state court has “authoritatively read [the ‘best inter provision ests’] as placing hardly any limit on a court’s discretion to award ante, rights,” at 77 (opinion concurring in judgment). Apart from question whether one can deem this description of the statute an “authoritative" construction, it seems to me exceedingly unlikely that the state court held the statute unconstitutional because it believed that the “best interests” standard imposes “hardly any limit” on courts’ discretion. n. 5, See infra.
84 decisions and court state statutes the other
and from myriad Thus, standard.5 the same least at nominally applying that the statute conclusion I believe that Souter’s Justice “‘too court state trial judges imbues unconstitutionally 78, at n. 3 case,”' ante, in (opinion much discretion every Morales, 527 v. in Chicago concurring judgment) (quoting (1999) 41, premature. 71 concurring)), (Breyer, J., U. S. a terms of with the unconstrued thus We are presented in that, my Court and a State state statute opinion Consti- of the Federal the effect view, misstates significantly Given of that statute. tution construction upon and correct I should believe the identify posture, court’s opin- in of the state majority two flaws the reasoning 5 10 in no less than the child” appears interests of phrase “best determinations statutory governing Washington provisions current state See, Wash. g.,e. custody adoption. from to to to termination guardianship 1996) (amended §26.09.240(6) of visitation stat version (Supp. Rev. Code a child’s evaluating consider in factors courts enumerating eight ute (in “best interests); §26.09.002 or divorce parental separation cases of best that best by parenting arrangement child are served a interests of the and and stability, physical emotional health growth, maintains a child’s care”; existing when the ordinarily of the child is served “best interest only child is to the of interaction between a and altered pattern relationship of the or as re changed extent necessitated harm”); mental, emotional the child from quired protect physical, (“The §26.10.100 in accordance with the custody court shall determine child”). Indeed, courts state have best interests statutory these applying invoked the standard on numerous in occasions apparent meaning. if as had provisions just phrase quite specific — (1998) 604, P. 2d 1239 See, (uphold In re 122 2d 859 g., McDoyle, e. Wash. McDaniels custody dispute); “best trial court interest” assessment ing Carlson, 261 299, 310, (elucidating P. 2d Wash. 2d context). broadly, More interests” suit paternity “best standard sepa fully visitation laws reveals custody search current state that, standard, the child” a number to the interest of rate references “best a deci upholds before it minimum, pause some at a the Gourt give should words, face, pass may be too boundless that those on their implying sion under the Federal Constitution. muster ion, and remand for further review of the trial court’s dispo- sition this specific case.
II
In my view, the State Supreme Court erred in its federal
constitutional analysis because neither
the provision grant
ing
person”
“any
petition the court for visitation,
137 Wash.
2d,
20, 969 P. 2d,
nor the absence of a
provision
requiring
“threshold ..
. finding of harm to the
child,” ibid., provides a sufficient basis for
holding
*24
statute is invalid in all its applications.
I believe that
fa
a
cial challenge should fail whenever a statute has “a 'plainly
”
legitimate sweep,’
Glucksberg,
The second key aspect of the Washington Supreme Court’s holding the Federal —that Constitution requires showing of actual or potential “harm” to the ehild before a court may
6It necessarily follows that under the far more stringent demands sug United, gested majority in States v. Salerno, U. S. (1987) (plaintiff seeking facial invalidation “must establish that no set of circumstances exists under which the Act would valid”), be respondent's facial challenge must fail. objections parent’s order visitation continued over a —finds support
no While, this case Court’s law. as the Court recognizes, certainly protects the Federal Constitution parent-child relationship arbitrary impairment by from page State, see 87-88, this we have never held that infra parent’s liberty relationship interest in this is so inflexi- rigid ble as to establish a protecting constitutional shield, every arbitrary parental any challenge decision from absent finding presumption paren- a threshold harm.7 generally tal decisions serve the best interests their chil- clearly is dren sound, and in the normal ease the paramount. interest is capable But even a fit treating possession. a child like a mere present bipolar struggle
Cases like this do not between authority and the State over who has final determine what is in a child’sbest interests. There is at a minimum a third implicated individual, whose interests are every applies case to which the statute child. —the practice It has become standard in our substantive due process jurisprudence begin analysis our with an identifi cation of liberty implicated by the “fundamental” interests challenged g., *25 See, state action. (opin ante, e. at 65-66 ion of Washington Glucksberg, v. 521 U. S. O’Connor, J.); Planned Parenthood Southeastern Pa. v. (1997); 702 of Casey, My colleagues U. S. 838 are of course cor recognize right rect to parent a of to maintain a relationship among with his or her child is the interests in-
7The suggestion
Justice
Thomas this case may be resolved
solely
reference to our decision in
Sisters,
Pierce
Society
of
(1925),
U. S.
Pierce involved a parent's choice
is unpersuasive.
whether
a
send
child
public
private
school. While that ease is a
source of broad
about the
of
language
scope
parents’
process
due
rights
with respect
to their children,
the constitutional principles and interests
involved in the schooling context do not necessarily have parallel implica
tions
this family
context,
law visitation
in which multiple overlapping
and competing
prerogatives
plausibly
various
parties
interested
are at
stake.
eluded most often in the constellation of
protected
liberties
through the Fourteenth Amendment. Ante, at
(opin
65-66
ion of
Our cases leave no
J.).
O’Connor,
parents
doubt that
have a
liberty
fundamental
interest in caring for
guiding
their children, and a corresponding privacy interest —absent
exceptional circumstances—in doing so without the undue
interference
strangers
to them and to their child. More
over, and
critical
this case, our cases applying
princi
this
ple
explained
have
that with this
liberty
constitutional
comes
(albeit
a presumption
one)
a rebuttable
that “natural bonds
of affection
lead
to act in the best interests of their
children.” Parham v. J R., 442 U. S.
(1979);
584, 602
see
Casey,
also
cant liberty interests, these interests have never been seen be to without limits. In Lehr v. Robertson, 463 (1983), U. S. 248 for example, this Court held putative that a biological father who had never established an actual rela tionship with his child did not have a constitutional notice of his child’s adoption by the man who had married the child’s mother. As this Court had recognized in an ear lier case, liberty interests “‘do not spring full- blown from the biological connection between ” They child. require relationships more enduring.’ Id., at 260 (quoting Caban v. Mohammed, 441 (1979)). U. S. 380, 397
Conversely, in Michael H. v. Gerald D., 491 U. S. 110 (1989), this Court concluded that despite both biological par- enthood and an established relationship with young child, a father’s process due liberty interest in maintaining some *26 connection with that child was not sufficiently powerful to overcome a statutory state presumption that the husband of the child’smother was the parent. child’s As a result of the
88 biological father could be denied even visi- presumption, the a matter of state he because, law, with the child as tation recog- “parent.” plurality A of this there Court was not liberty parental function, interest was a not nized that the biology and intimate simply factors” such as of “isolated apparently independent and but of the broader connection, g., family. Lehr, See, id., 123; e. see also 463 interest in at Organization v. Foster For S., 261; at Smith Families U. (1977); Equality 816, 431 U. 842-847 Moore v. & S. Reform, 431 Cleveland, 494, East U. S. 498-504 rights respect parent’s to her A with child have thus never regarded are limited ex- absolute, been as but rather £he relationship developed a child, of an and actual, istence presence or absence of some embodiment of are tied to family. simply out of the arisen, These limitations have not parenthood itself, but because of definition of this Court’s assumption be bal- that a interests in a child must against long-recognized parens anced the State’s interests as g., patriae, Flores, e. Reno v. see, 292, 507 U. S. 303-304 (1993);Santosky Kramer, Parham, 442 S., 766; 455 U. 605; Massachusetts, U. Prince v. S., 321 U. S. (1944), critically, complementary and, the child’sown interest preserving relationships pro- in that serve her welfare and Santosky, tection, S., at 760. U. yet
While this Court has not had occasion to elucidate the liberty preserving nature of a interests in child’s established family-like (reserving bonds, S., familial or 491 U. at 130 question), extremely likely it that, seems to me to the extent liberty parents and families have fundamental interests in preserving relationships, too, such intimate do children so, have interests, so, too, these must their interests be bal- equation.8 prior minimum, anced At a rec- our cases This has on numerous occasions that children are acknowledged many possessed constitutionally protected circumstances rights R., v. J. Parham liberties. See 442 U. S. inter (liberty confinement); Planned Central in avoiding Parenthood of est involuntary
89 that ognizing children are, generally speaking, constitution- ally actors protected require this reject any suggestion that when it comes to parental rights, children are so much chattel. See ante, at 64-65 (opinion O’Con- J.) nor, (describing States’ recognition “an independent third-party child”). interest ain The constitutional protec- tion against state arbitrary interference with parental rights should not be extended to prevent States from protecting children against exercise arbitrary of parental authority that is not in fact motivated an by interest the welfare of the child.9 This is not, of course, to that a suggest child’s inter- liberty
est in
contact
maintaining
with a particular
individual
is to
be treated
as on
invariably
par
that child’s parents’
contrary interests. Because our substantive
due process
ease law includes a strong
that a
presumption
will
act
Mo. v. Danforth,
(1976)
52,74
("Constitutional
428 U. S.
rights do not ma-
ture and comeinto being magically onlywhen one attains the state-defined
age of majority. Minors, as
adults,
well as
are protected by the Constitu-
tion and possess constitutional rights”); Tinker v. Des Moines Independent
Community
Dist.,
School
503,506-507
U. S.
(1969)(First Amendment
right to political speech); In re Gault,
rights in criminal proceedings).
(due
U. S.
process
9Cf., e. g.,
Yoder,
Wisconsin v.
But we should may that there be circumstances in which a child has a stronger protection interest at stake than mere from serious by by “person” harm caused the termination of parent. variety other than a infinite of fam- almost ily relationships pervade ever-changing society that our strongly against by counsel the creation this of a con- biological parent’s liberty stitutional rule that treats a inter- supervision est in the care and of her child an isolated as right may arbitrarily. that be indisputably exercised It is the business of the States, rather than a federal court em- ploying a standard, national to assess in the first instance importance conflicting the relative give of the interests that disputes rise such as Far guaranteeing this.10 from 10 Sidoti, (1984) (“The See Palmare v. 466 U. S. of a judgment state court a child determining reviewing custody decision is not ordi Court”); c£ Collins v. Harker narily likely by candidate for review this (1992) (matters Heights, 503 U. S. 115,128 and multi involving competing faceted social and Re decisions to local policy best left decisionmaking); gents Univ. Mich. Ewing, U. S. (emphasizing our “reluctance to trench on the prerogatives of state and local educational institutions” as federal are courts ill-suited to “evaluate the substance of the multitude of academic daily decisions that are by” experts made information). the field cumulative evaluating That caution is never more essential than in the family realm of and intimate In part, relations. this is based on principle if long-established, arbitrary, somewhat tradition in parents’ interests will be trammeled in sweep of cases arising under the statute, the Washington merely law gives an individual—with whom a child have an established relationship procedural right to ask the —the State to act as through arbiter, entirely well-known best-interests standard, between protected interests and the child’s. It seems clear to me that the Due Process Clause of the Fourteenth Amendment leaves room for States to con- sider impact on a possibly child of arbitrary parental decisions that neither serve nor are by motivated the best interests of the child.
Accordingly, I respectfully dissent.
Justice Scalia, dissenting. my
In
right
view, a
to direct the upbringing of
their
is among
children
Rights”
“unalienable
with which
the Declaration of Independence proclaims “all men ... are
endowed
their Creator.”
my
And in
view
*29
among
also
“othe[r]
[rights]
by
retained
people”
which the Ninth
says
Amendment
the Constitution’s enu-
rights
meration of
“shall not be
deny
construed to
dispar-
or
age.” The Declaration
Independence,
of
however, is not a
legal prescription conferring powers upon the courts; and the
Constitution’s
to “deny
refusal
disparage”
rights
other
far removed from affirming any one of them, and even fur-
ther removed from authorizing judges
identify
to
they
what
might be, and to enforce the judges’
against
list
duly
laws
enacted
the people. Consequently, while I would think
it entirely compatible with the commitment
representative
allocating responsibility for resolving disputes of various kinds in our fed-
eral system.
Richards,
Ankeribrandt v.
(1992).
democracy founding set forth in the argue, documents to legislative chambers or in campaigns, electoral that the State -power has no parents’ authority interfere with over rearing of their children, I do not power believe that the which the upon Constitution confers judge me as a entitles (in deny view) legal me to my effect to infringe laws that (in view) upon my what is right. that unenumerated Only holdings three of this Court part rest or in whole upon a substantive constitutional of to direct the upbringing of their children1—two of them from an era rich in process holdings substantive due that have since been repudiated. Meyer See Nebraska, v. 262 U. 390, 399, S. (1923); Society Pierce v. Sisters, 268 U. S. 534-535 (1925); Wisconsin v. Yoder, 406 U. S. 232-233 Cf. West Coast Hotel Co. Parrish, S. 379 U. (overruling Adkins v. Hospital Children’s C,D. 261 U. S. (1923)). diversity today’s sheer opinions per- suades theory me that the parental rights unenumerated underlying these three cases has small claim to stare decisis protection. legal principle A thought that can be produce such diverse outcomes relatively in the simple ease before us legal here is principle not a that has induced substantial reli- ance. (that IWhile would not now overrule those earlier cases urged),
has not been would I theory neither extend the upon they which rested to this new context.
Judicial “parental rights” vindication of under a Constitu- (as tion that does not requires even mention them Justice out) opinion rightly only Kennedy’s points judicially not crafted parents, definition of but unless, as no one be- also— *30 1Whether parental rights a “liberty” constitute interest for purposes of procedural due process is a somewhat different question not implicated Illinois, here. Stanley (1972), 405 U. S. purports to rest in part id., upon that 651-652; see proposition, but see Michael H. v. Gerald D., 491 U. S. 120-121 (plurality opinion), though the holding is independently supported on equal protection grounds, see Stanley, supra, at 658. parental Heves, the rights are to be -judicially ap- absolute—
proved assessments of “harm to the judicially child” and de- gradations fined persons of other (grandparents, extended family, adoptive family adoption in an later found to be in- long-term etc.) valid, guardians, may who have some claim against the parents. wishes of the If we embrace this un- right, enumerated I think it obvious—whether we affirm or judgment reverse the here, remand as Justice Stevens Kennedy or Justice would do—that we will ushering be regime a new judicially prescribed, federally pre- family scribed, law. I have no reason to believe federal judges will be better at this legislatures; state than and state legislatures great have the advantages doing in a harm more circumscribed being area, of able to correct their mis- takes in a flash, being and of removable people.2
For these reasons, I would judgment reverse the below. Justice Kennedy, dissenting. Court of has determined that
petitioners Gary Jenifer and Troxel have standing under state law to seek court-ordered visitation grand- with their children, notwithstanding objections of the children’s parent, respondent Tommie Granville. The statute relied upon provides:
“Any person may petition the court for visitation rights time including, but not custody limited to, proceedings. may The court order rights for any person when visitation serve the best interest of the child whether or not there any change has been §26.10.160(3) circumstances.” Wash. Rev. Code 2 I note that respondent is asserting only, on her own behalf, a substan process tive due right to direct the upbringing children, her own and is not asserting, on children, her their First Amendment rights of behalf of association or free exercise. I therefore do not have occasion consider whether, and under circumstances, what could assert the latter enumerated rights.
After this to sue for visita acknowledging right statutory tion, invalidated the State Court statute as vio- Supreme lative of United Constitution, States because it inter fered with a to raise his or her child free from right Smith, unwarranted In re 1, 969 interference. 2d Wash. P. 2d 21 of the court’s decision Although parts may be to it to open seems be differing interpretations, agreed the court invalidated the statute on its face, it ruling a nullity. (cid:127) The first flaw the in State Court found Supreme stat- ute is that it allows an award visitation to a nonparent without a that harm to the child finding would result if visi- tation were withheld; and the is that second the statute allows to seek visitation at any person time. In any my view first too broad to be correct, as it theory appears to the best interests of the contemplate child standard I not be in visitation case. may applied any acknowledge the distinct that visitation eases arise possibility may where, the absence of other for the considering protection parent under state laws and the best interests of the procedures, child standard would insufficient to the give protection par- ent’s constitutional raise child without undue intervention but State; it is different matter quite as I understand the say, Supreme said, have that a harm to the child standard is required instance. every
Given the error I see in the State central Court’s conclusion that the best interests the child standard is never appropriate third-party cases, that court first, should have the to reconsider this opportunity case. I would-remand the case to the state court for further proceed- If it then found the statute ings. has been in an applied unconstitutional manner because the best interests of child standard insufficient gives to a under protection the circumstances of ease, this or if it declared the stat- again ute a because the statute seems to allow nullity any person at all to seek visitation at time, the pre- decision would sent other issues may which not warrant further re- *32 in view this Court. These only include not protection the the gives parents Constitution against state-ordered visita- tion but also the extent to which federal rules for facial chal- lenges to statutes in control state courts. These matters, however, should await some further case. judgment The now under review should be vacated and remanded on the ground sole that the ruling harm that was so central to the Supreme decision, Court of Washington’s was given error, its broad formulation.
Turning
question
to the
whether harm to the child must
be the controlling standard
every
visitation proceeding,
there is a beginning point that
general,
commands
perhaps
agreement
unanimous,
separate
our
opinions: As our case
law has developed, the
parent
custodial
has a constitutional
right to determine, without undue
interference
the State,
how best to raise, nurture, and educate the child.
pa
The
rental
stems from
liberty
protected by the Due
Process Clause of the Fourteenth Amendment.
g.,
See, e.
Meyer v. Nebraska, 262 U. S.
(1923);
890, 399, 401
Pierce v.
Society
Sisters, 268 U. S.
(1925);
510,
534-535
Prince v.
Massachusetts, 321 U. S.
(1944);
158, 166
Stanley v. Illinois,
405 U. S. (1972);
651-652
Wisconsin Yoder,
406 U. S.
(1972);
232-233
Santosky v. Kramer,
struction precise particular facts of cases, as they give seek to precise further and more definition to the right. Supreme sought State give content
parent’s right by announcing categorical rule that third parties who always prove seek visitation must the denial of visitation would harm reviewing child. After some of precedents, the relevant Court of “ ‘[t]he requirement concluded protection of harm is the sole against pervasive have state interference in the parenting process.’” 137 Wash. 2d, 19-20, 2d, P. (quoting (Tenn. Hawk v. Hawk, 856 S. 2d 573, W. 1993)). “[s]hort For that preventing reason, harm to the child,” the court considered the best interests of the child to *33 be compelling “insufficient to serve as a state interest over ruling rights.” fundamental 137 Wash. 2d, 2d, 969 P. at 30. might
While it argued be as an abstract matter that in always some sense the child is if harmed his or her best interests are not considered, the law of domestic relations, it as has evolved point, to this treats as distinct the two standards, one to the harm child and the other the best inter- of ests judgment child. The of the Court of Washington assumption, rests on and I, too, shall as- sume that there are real consequential differences be- tween the two standards. question
On whether one
always
standard must
take
precedence over the
protect
other in
right
order to
of
parents, “[o]ur
history, legal
Nation’s
tradi
practices”
tions, give
do not
us clear or definitive an
(1997).
swers.
Glucksberg,
v.
521 U. 702, 721
S.
among
The consensus
courts and commentators is that at
through
least
century
19th
legal right
there was no
of
visitation;
appears
court-ordered visitation
to be a 20th-
century phenomenon.
g.,
See, e.
Legal
1 D.
Rights
Kramer,
(2d ed..-1994);
of Children 124, 136
2 Atkinson,
J.
Modern
§
Custody
Child
Practice 8.10
A case often cited as
one
earliest visitation decisions, Succession Reiss,
46 La.
(1894),
Ann. 347, 353, 15
explained
So.
obligation
“the
ordinarily
grandparents
to visit
is moral and
legal”
not
appears
conclusion which
consistent with that
—a
of American
jurisdictions
common-law
Early
the time.
20th-century exceptions did occur, often in cases where
a relative had acted in a parental capacity, or where one
parents
of a child’s
had
Douglass
died. See
v. Merriman,
(maternal
(1931)
S.
petition for necessarily does not imply, as Su- *34 preme Court of parent concluded, that a has a constitutional prevent to visitation in all eases not involving True, harm. this Court has acknowledged States have authority the to intervene prevent harm to g., children, see, e. supra, Prince, supra, 168-169; Yoder, at 233-234, but that is not the saying as same height- that a ened harm to the child standard must be every satisfied in case in which a party third seeks a visitation It order. is also true that the law’s presumption traditional has been “that natural parents bonds of affection lead to act in the
best interests their children,” R., Parham v. J. 442 U. S. (1979); “[sjimply 584, 602 and parent because the decision a agreeable is not or to a child because it involves risks does automatically power not transfer the to make that decision parents agency from the some or officer state,” id., of the at 603. The State Court’s conclusion that the Con application stitution forbids of the best interests child proceeding, standard in appears however, upon assumptions to rest require. not Constitution does My principal holding proceed concern is that the seems to assumption from that the who resist always primary visitation have caregivers been child’s parties and that legiti- the third who seek visitation have no mate relationship and established with the idea, child. That appears concept turn, influenced that the conven- family ought tional nuclear to establish the visitation stand- every ard for domestic relations ease. As we all know, this simply is prevailing not the many structure or condition g., households. See, e. Moore v. East Cleveland, 431 U. S. many boys girls For family a traditional permanent two or even one caring parent simply is reality
not the of their childhood. This sobe whether their by tragedy childhood has been marked or filled with happiness considerable and fulfillment. perhaps Cases are sure to a substantial number of arise— party, by
cases—in which a
acting
third
earegiving
in a
role
significant period
over a
developed relationship
time,
has
with a child
necessarily subject
which
not
to absolute
parental veto. See Michael H. v.
D.,
Gerald
S. 110
U.
(1989) (putative natural
not
father
entitled to rebut state-law
presumption
marriage
that child born in is a child of the
(1978)(best
marriage); Quilloin v. Walcott,
99 volved and to society, stems from the emotional attach- ments that derive intimacy from the daily of association, and from plays it role “promoting] way through life” the instruction of children as ... well as from the fact of ” relationship’ blood (quoting Organization Smith v. Fos- ter Equality Families For & Reform, U. S. (1977),in quoting 281-233)). turn Yoder,406 U. S., at Some pre-existing relationships, then, identify serve persons who strong have a attachment to the child with the concomi- tant motivation to act responsible in a way to ensure the child’swelfare. theAs State Court was correct to acknowledge, those relationships can so enduring be “in certain circumstances where a child enjoyed has a substan- tial relationship with a person, third arbitrarily depriving the child of the relationship could cause severe psychological harm to the child,” 137 Wash. 2d, 2d, P. at 30; and harm to the may adult also design ensue. In the elaboration of their visitation laws, States be entitled to consider that certain relationships such are that to avoid the risk of harm, a best interests standard can employed by be their domestic relations courts in some circumstances.
Indeed, contemporary practice give should pause us some before rejecting the best interests child standard in all third-party visitation cases, as Washington court has done. The standard has recognized been many years for as a basic tool of domestic relations law in proceed- visitation ings. Since 1965 all 50 States have third-party enacted a visitation statute of some sort. See ante, (plu- 73-74, n. rality opinion). Each of these permits statutes, save one, court order to issue in certain cases if visitation is found to inbe the best interests of the child. While it unnecessary for us to consider the constitutionality any particular pro- vision in the ease now before it us, can be noted that the statutes also variety include a of methods for limiting par- exposure ents’ to third-party petitions and for en- suring parental given decisions are respect. Many States
limit, by restricting identity permissible petitioners petition petitions grandparents, by requiring or visitation relationship a or child, to show a substantial both. ers (1993 1998) §38-129 Supp. e.g., See, and Kan. Stat. Ann. (grandparent under certain circum visitation authorized exists); relationship if a Gen. stances substantial N. C. Stat. (1999) (same); §§50-13.2, 50-13.2A, Iowa Code 50-13.5 1999) §598.35 (same; (Supp. visitation also authorized for 1999)(visita § (Supp. great-grandparents); Wis. Stat. 767.245 grandpar for “a tion authorized under certain circumstances stepparent greatgrandparent, person main who has ent, relationship parent-child relationship tained a similar to a child”). vary respects with the The statutes other —for permit petitions instance, some there has when change been a such as or death of circumstances divorce §458:17-d (1992), parent, e.g., a see, Ann. N. H. Rev. Stat. apply presumption parental some a decisions should (West §§3104(e)-(f) e.g., control, see, 1994); Cal. Fam. Code Ann. 15-5-24.3(a)(2)(v) 1999). § (Supp. R. I. Laws Gen. Georgia’s legislature gen adopted is the sole state to have § eral harm to the child 19-7- standard, see Ga. Code Atm. 3(c) (1999), only Georgia Supreme and it did so after the prior Court held the State’s visitation statute invalid under Georgia the Federal see Constitutions, Brooks v. Parker son, 265 Ga. denied, 454 S. E. 2d cert. 516 S.U. (1995). light
In
of the
and case law,
inconclusive historical record
adoption
well
as
as the almost
of the
universal
best interests
disputes,
pressed
standard for visitation
I would be hard
right
conclude the
to be
in all cases is
free
such review
“
”
‘implicit
liberty.’
concept
itself
in the
of ordered
Glucks
berg,
(quoting
S., U.
at 721
Palko
Connecticut,
(1937)). my
appro
U. S. 319, 325
In
it would be more
view,
priate
constitutionality
applica
conclude that the
specific
depends
tion of the best interests standard
on more
right
complete
factors.
In
a fit
vis-á-vis a
short,
stranger
thing;
is one
her
vis-á-vis
another
or a
parent may be
protection
another. The
defacto
the Consti
requires,
tution
then, must be elaborated with care, using
the discipline and instruction of the
system.
case law
We
keep
must
in mind
family
courts in the 50 States con
front these factual
day,
variations each
and are best situated
to consider
unpredictable,
yet inevitable, issues that
arise. Cf. Ankenbrandt v. Richards,
It must recognized, be eourse, that domestic relations proceeding in and of itself can constitute state intervention *37 that is disruptive so parent-child of the relationship that the constitutional of a parent custodial to make certain basic determinations for the child’s welfare impli- becomes cated. The best interests of the child standard has at times been criticized as indeterminate, leading unpredictable re- g., sults. See, e. American Law Institute, Principles of the Law of Family (Tent. Dissolution 2, and n. 2 Draft No. 3, 20,1998). Mar. If single parent who struggling to raise a child is faced with visitation demands from party, third the attorney’s fees might alone destroy hopes her plans for the child’sfuture. system Our must confront more often reality litigation can itself be disruptive so protection constitutional may required; be and I do not dis- count the possibility that in some instances the best interests of the child standard provide protection insufficient parent-child to the relationship. We owe it to the Nation’s domestic legal relations structure, proceed however, to caution.
It should suffice in this ease to reverse holding of State Supreme Court that the application of the best inter- ests of the child always standard is unconstitutional in third- party visitation cases. Whether, under the circumstances of this case, the requiring order visitation objection over the this fit violated the ought Constitution to be reserved for further proceedings. Because of sweeping ruling its re- standard, the child
quiring the harm to specific Washington occasion to address not have the did guid- specific obtained. More order the Troxels highest court has a case in which a State’s should ance await elaborating the the facts the course considered all of parents by the State and protection the laws of afforded my view, we by Furthermore, itself. the Constitution the correct constitutional under whether, not address need on its can be invalidated standards, the statute ought the state question, to be addressed too, This face. in the first instance. court my judgment be vacated review should
In view under proceedings. for further and the case remanded