Troxel v. Granville: What the Supreme Court Decided About Parental Rights

Troxel v. Granville, 530 U.S. 57 (2000), is the U.S. Supreme Court decision most often invoked for the idea that parents hold a constitutional right over their children's upbringing. It was decided on June 5, 2000. It is worth understanding what it actually says, because it is very frequently cited incorrectly.

What Happened

Brad Troxel and Tommie Granville had two daughters, Isabelle and Natalie, and never married. Brad died by suicide in 1993. His parents, Jenifer and Gary Troxel, the girls' paternal grandparents, asked a Washington superior court for visitation rights. The mother was not trying to end the relationship, but she wanted to set its terms herself. She objected.

The governing statute, Wash. Rev. Code §26.10.160(3), let "any person" petition for visitation "at any time," and authorized the court to grant it if it served "the best interest of the child." The judge granted the grandparents visitation over the mother's objection.

"The Washington nonparental visitation statute is breathtakingly broad."

— Justice Sandra Day O'Connor, plurality opinion, Troxel v. Granville, 530 U.S. 57 (2000)

What the Court Held

The Supreme Court held that the statute, as applied, violated the Due Process Clause of the Fourteenth Amendment.

"The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court."

— Troxel v. Granville, 530 U.S. 57 (2000), plurality opinion

Two ideas follow. First: "there is a presumption that fit parents act in the best interests of their children." Second, its practical consequence: the court "must accord at least some special weight to the parent's own determination." The Washington judge's error was not granting visitation, but simply substituting his own judgment for that of a fit mother.

"So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family."

— Troxel v. Granville, 530 U.S. 57 (2000), plurality opinion

The Nuance Almost Nobody Mentions

The vote was 6-3, but there was no majority opinion. The lead opinion, by Justice O'Connor, was joined by only four justices: herself, Chief Justice Rehnquist, and Justices Ginsburg and Breyer. Souter and Thomas concurred in the judgment only, on separate reasoning that differed from each other. Stevens, Scalia, and Kennedy dissented.

That is called a plurality opinion. Because no single rationale drew five votes, its binding force is weaker than a majority precedent, and state courts have applied it unevenly. The Court itself declined to resolve "whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child," and said it would not "define the precise scope of the parental due process right in the visitation context."

When It Actually Applies

This is the most misunderstood point. Troxel pits a third party — the grandparents — against a parent. Its logic rests on that asymmetry: a fit parent on one side, a non-parent on the other, and the State must defer to the parent.

In a custody case between two parents that asymmetry does not exist: both hold the same right, so the presumption favors neither. There the court decides on the best interest of the child, and Troxel does not change that. If your case is against your child's other parent, citing it gains you nothing and may cost you credibility. Where it is the foundation is when a grandparent, stepparent, or other third party seeks visitation despite a fit parent's objection.

What Governs in California

California regulates grandparent visitation under three scenarios, and the right route depends on the family situation:

• Family Code §3102: when one parent has died, the children, siblings, parents, and grandparents of the deceased parent may seek reasonable visitation if the court finds it is in the child's best interest.
• Family Code §3103: when a proceeding between the parents is already open — dissolution, legal separation, or nullity — a grandparent may petition to join the case as a party and request visitation within it.
• Family Code §3104: allows a grandparent to bring an independent action. It requires the court to find a preexisting relationship with the grandchild, and applies only in defined circumstances, such as the parents living separate and apart on a permanent or indefinite basis.

The Supreme Court itself noted with approval that several states, California among them, already codified the presumption favoring fit parents and permit visitation only when that presumption is rebutted.