Supreme Court Dispatches

A Very Brady Lawsuit

Tommie Granville had three children from a prior marriage when she began living with Brad Troxel.

Tommie and Brad had two children—Natalie and Isabelle—then separated.

Brad committed suicide in 1993.

Tommie and Brad’s girls continued visiting Brad’s parents until Tommie married Kelly Wynn, who had two children of his own from a prior relationship.

Kelly adopted Natalie and Isabelle. Kelly and Tommie have one child together.

That’s one mother, three fathers, eight children, 10 grandparents, and the fuel powering today’s Supreme Court case, Troxel vs. Granville.

When Brad Troxel’s parents were barred from seeing Natalie and Isabelle as often as they wished, they petitioned for visits under an astonishingly badly drafted Washington state statute permitting third-party visitation so long as it is “in the best interest of the child.” On appeal, the Washington Supreme Court invalidated the visitation statute as infringing on parents’ fundamental constitutional right to control their children’s upbringing.

Imagine your parents-in-law suing for visits with little Joey every other weekend. Now imagine your daughter refusing to let you see your grandson. It’s enough to make Solomon give up his day job.

Grant, right off the bat, that the Washington statute is—as Justice O’Connor observes today—”breathtakingly broad” (read: stupid). But that doesn’t keep this case from being vitally important, perhaps the most important of the term, because the Supreme Court hears a family law case maybe once every 20 years. Family law is the poor stepchild in our legal tradition, dismissed as “trailer park law.” It’s as far from the high-minded doctrinal world of contract, property, or antitrust law as you can imagine. Family law is awash in “sniff” tests, unbridled judicial discretion, and damp Kleenex piled in the conference room.

The constitutional polestar of family law was established in the 1920s by a pair of cases announcing that parental authority over child-rearing decisions is a fundamental “liberty interest” under the 14th Amendment. What that means no one knows. It has something to do with having the right to send your son to Amish schools but not to force him to sell pamphlets on the street.

Since the scope and contours of this “right” have never been fleshed out by the court, it was only a matter of time before it conflicted with other “rights”—including those of grandparents, cousins, and other relatives. And all these “rights” must inevitably make a wrong.

“The intrusion of grandparental visitation is slight,” stammers Mark Olson, defender of grandparents and the goofy Washington statute. Olson is nervous. He’s trying to convince the court that parental rights are limited to the right to control education and inculcate religious beliefs. No one is buying that.

Chief Justice Rehnquist asks why the mother’s claim that she simply doesn’t want grandparental visitation doesn’t defeat the grandparents’ wishes. Olson stops short of saying grandparents have rights. He should. Isn’t that, after all, his point? Instead he asserts that it’s in the children’s best interests to have a relationship with their grandparents. The Troxels want to keep their son’s memory alive for Natalie and Isabelle.

Justice Scalia refuses to accept the “best interests” test as determinative—it’s a custody test to be used between parents. It is not a yardstick against which parents must constantly be measured.

Justice Breyer attempts to fashion a new yardstick: He wonders about instituting a visitation test in which grandparents must instead prove that ending visitation in a significant relationship would harm a child. If the court rejects the “best interests” analysis, it may have to invalidate 48 other states’ visitation statutes.

Catherine Smith represents Tommie Granville—the girls’ mother. She is one of the finest oral advocates I have ever seen. Her argument: Unless a custodial parent is harming a child, the state cannot intrude upon his or her constitutional rights in any way, and that includes imposing unwanted third-party visitation. She says every one of the state visitation statutes predicated on a best interests test is unconstitutional.

Justice Breyer,, notes that “unhappy families are all different.” This strikes me as profound. He is saying that “family” means all sorts of things: stepfathers, biological fathers, gay mothers’ significant others, and egg donors. Breyer wants to know if judges are to be stripped of the discretion to work out highly complex visitation schedules in these cases. Smith insists that custodial parents should have a veto over what’s in their children’s best interests.

Is this case just about DNA? No, concedes Smith, parenthood is not purely biological. It turns on a relationship, and that relationship can be with a grandparent. Justice Souter asks Smith what to do with a daughter and her child who live with a grandmother for 10 years, then leave. The daughter has a veto, says Smith, since she made the choice to live with her parent in the first place.

That’s what this case comes down to: Who gets the veto? Who gets to whack whom upside the head with the “best interests” yardstick? Parents or judges? And when you start drawing lines around family, who stays in and who gets turfed out? And who decides?

The Supreme Court may not decide—or it may decide very narrowly on the basis of the Washington statute. But it needs to sort it out.

It occurs to me today that custody disputes are really just property cases. While you may not have studied property law, most of its tenets will be familiar to you from the sandbox, the important ones being: “finders keepers/losers weepers” and “you smelt it/you dealt it.” These are the twin pillars of the Western property canon.

The rhetoric of “rights” and entitlement in this case is reminiscent of battles over fences or Northern Atlantic fishing rights. Maybe we should view our children in the way the law views a plot of land: You get to adversely possess little Timmy if you care for him for four years and make improvements. You can put a lien on little Kelly if you’ve paid child support. Or the government can come condemn your kids and compensate you if they can put them to better use.

In recent decades, property law has embraced ecologist Garrett Hardin’s theory of “the tragedy of the commons,” which holds that if everyone uses a little bit of some scarce resource, such as a grazing area, but does help not maintain it, the resource will eventually disappear. Family law cases are usually about the tragedy that happens when the scarce resource at issue is a child’s love—and time. There is no doubt in my mind that the Granvilles, and the Troxels, and the 18 cousins, and the 49 great-aunts all have these children’s “best interests” at heart. But what happens when everyone is loving two small children to death, and each one claims sole dominion over their best interests?

The rules of love say everyone needs to cling tighter. King Solomon would say someone needs to let go. Kahlil Gibran says they were never our kids in the first place. And the EPA would put them on the endangered species list, grant the parents some sort of stewardship in lieu of a property right, and insist that we figure out a way to share.