Defining the Family in the Millenium: The Troxel Follies

I. INTRODUCTION Family autonomy, with its concomitant parental authority, is an aspect of family privacy that American law has protected for several generations. At least for most of the last century, the rights of natural parents to be free, for the most part, from state intervention in relationships with their children was recognized generally as state policy. Also, the law afforded substantial and significant constitutional protection to parental rights. The common law neither countenanced nor contemplated intervention in parent-child relationships by persons who were not related to the child by blood. Even grandparents, who not only are blood relatives, but also are often considered to be members of the extended family, were considered legal strangers who enjoyed no rights under the common law with respect to their grandchildren. This Article addresses the ways in which the law-- primarily state law-has significantly redefined the American family in its response to third-party claims against parents for visitation rights with the children of those parents. Part II briefly addresses statutory and case law relating to visitation by grandparents, the most favored group of petitioners for visitation rights, and stepparents who have not fared nearly as well. After placing third-party visitation in its constitutional context, Part II also examines how the courts have treated "coparent" claims of a right to visitation, brought by former companions of natural parents who insist that they are de facto parents, parents by estoppel, psychological parents, and the like. It describes and analyzes the evolving law in this area from the earliest decisions when such coparent claims were routinely rejected, to the most recent cases, several of which have recognized such claims without any readily apparent statutory authority. Part III, summarizes the several opinions in Troxel v. Granville,1 the first third-party visitation case (in this instance concerning grandparents) that the United States Supreme Court has decided.2 Finally, Part III also reviews some state court decisions subsequent to Troxel, and assesses whether the Supreme Court's decision has had or is likely to have any significant impact on state law in the areas of grandparent or other third-party visitation rights. II. THE CONVENTIONAL LEGAL TREATMENT OF THIRD-PARTY VISITATION CLAIMS A. Stepparents and Grandparents Petitions for rights of visitation by stepparents generally arise in one of two contexts. In a number of cases, the stepparent's marriage to the child's natural parent has ended in divorce. In other cases, the stepparent seeks visitation after the death of the custodial parent.3 Statutes in every state give grandparents standing to petition for rights to visitation under a variety of circumstances.4 In about one-third of the states, statutes either provide explicit authority for stepparent visitation or contain language authorizing third-party visitation that is broad enough to apply to stepparents. These statutes are a mixed bag at best. They do not take a uniform approach and are frequently unclear. In only a handful of jurisdictions do the statutes contain explicit provisions that address stepparent visitation,6 and most of them authorize both grandparent and stepparent visitation claims. The Kansas statute, for example, states that "[g]randparents and stepparents may be granted visitation rights."8 The statutory language in Oregon is couched in far broader terms, affording standing to petition or intervene in custody or visitation proceedings to anyone "who has established emotional ties creating a child-parent relationship. . . with a child" and expressly including, among others, stepparents and grandparents.9 The Louisiana statute, unlike any of the others, gives identical visitation rights to stepparents and stepgrandparents. 10 Not surprisingly, all of the statutes contain, either expressly or implicitly, the overall requirement that visitation be in the best interest of the child. …