That's not only good news for the old folks, it's good news for state courts across the nation which have been struggling to interpret the Supreme Court's murky Troxel v. Granville ruling.
Last week, the court denied cert in Collier v. Harrold, 05-871, a case out of Ohio. At its center was a 7-year-old girl whose unmarried mother had died when the child was two. The daughter's grandparents looked after her until the girl's biological father was awarded custody. Thereafter, the father refused to let the grandparents see the girl, contending they were trying to turn her against him. The case finally made it to the Ohio Supreme Court, whose take on the Troxel case has now been at least tacitly endorsed by the nation's highest court.
For, five years, states have been dealing with the impact of Troxel v. Granville (530 U.S. 57 (2000)). That case, of course, was squarely aimed at Washington state's grandparent visitation law, which had allowed any person to petition for visitation rights if it was in the best interests of the child. The high court struck down that law as unconstitutional, holding that the state should have no reason to intervene in the childrearing decisions of parents unless the parents are found to be unfit.
But what if the parent was no longer alive to make decisions? What about the possibility that otherwise fit parents may nevertheless make decisions that are not in their child's interest? The court was unclear about these real-world questions - the only thing that was clear was that state visitation laws needed to give more deference to parental wishes.
So while state legislatures worked to make visitation laws conform to Troxel's constitutionality standard, state courts wrestled with just what standard Troxel had established. In the meantime some of those courts have made it difficult - in some cases virtually impossible - for grandparents to have visitation over parental objections.
The Collier case was an opportunity for a state appellate court to take a fresh look at Troxel. In Collier, a juvenile court magistrate found that the maternal grandparents had provided an important emotional link to the girl's deceased mother for three years while the child had been in their custody. The magistrate reasoned that maintaining that link was in the girl's best interest - even if the father objected - and so allowed the grandparents' visitation.
The juvenile court, however, ultimately overturned the magistrate's ruling based on its interpretation of Troxel. While the court agreed that the girl's interests in maintaining relations with her grandparents outweighed (emphasis added) the father's wishes for no visitation, Troxel demanded that courts find "overwhelmingly clear circumstances" that support forcing visitation for the benefit of the child over the opposition of the parent. The juvenile court did not find those "circumstances" in this case.
But the Ninth District Court of Appeals did not agree with the juvenile court. More importantly, it did not agree with the Seventh U.S. District Court of Appeals. The Ohio appellate court said that Troxel had focused on the narrow issue of whether Washington State's nonparental visitation law was overbroad. So the question was whether Ohio's applicable state laws were overly broad - and the Ninth District said they were not.
This was squarely against the federal appeals court ruling in another case (Oliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-3209, 776 N.E.2d 499) on the issue of whether Ohio courts must give 'special weight' to parents' wishes.
In resolving this conflict, the Ohio Supreme Court adopted the plurality view in Troxel, as had the Ninth District: that if a fit parent's decision regarding nonparental visitation becomes subject to judicial review, "the court must accord at least some special weight to the parent's own determination." (Court's emphasis.) Then, as the Ninth District had, the Ohio justices examined the two state laws applicable to this case - one for deceased parents and the other for unmarried parents - to determine whether they defined a narrow and compelling interest in the government overriding a parent's choice. In short, the Ohio justices applied a strict scrutiny analysis to the state laws.
The "deceased parent statute" (R.C. 3109.11) provides:
"If either the father or mother of an unmarried minor child is deceased, the court ... may grant the parents or other relatives of the deceased father or mother ... visitation rights ... if the court determines that [it] ... is in the best interest of the child."
The "unmarried parent statute" (R.C. 3109.12) says that if a child is born to an unmarried woman, her parents or relatives may request visitation - and so can the father's relatives, if he has acknowledged the child.
Applying the strict scrutiny standard, the majority of the Ohio court concluded that these statutes were narrowly written, applying only to relatives of the father and mother - and only in cases where a parent is dead or the child is born to an unmarried woman.
In neither case did the laws preclude giving "special weight" to the parent's wishes. So long as there is a showing that a lower court did that - and such were the facts in this case - then there is nothing wrong with a court overruling a parent's choice in the interest of the child.
Now, I certainly agree that parents have a fundamental right to raise their children as they see fit, and that courts should not interfere with their child-rearing decisions. But there must be exceptions. The government must be able to act if those parental decisions are not in the best interest of the child.
Of course, how the government determines those "best interests" is a serious subject. No government definition of "best interest" should override a parent's definition except in extreme circumstances. It is for that reason that courts have overruled parental decisions to withhold medical care for their children in favor of the parents' relgious or ethical beliefs.
While no physical harm would come to a child if he couldn't see his grandparents, the consequences are no less dire - and may well warrant a court's intercession. It is undeniable that in today's blended society, that grandparents are oftentimes a vital resource for children.
Our society has devalued that resource and in many instances our courts have codified that devaluation. I believe that grandparents' rights have been substantially undermined to the detriment of grandchildren who oftentimes have very loving, nurturing and parent-like relationships with grandparents.
This case seems to stand for a common sense approach that favors grandparents with substantial ties to their grandchildren and should be welcomed. The U.S. Supreme Court has, by standing silent on the Ohio court's ruling, greatly helped courts groping to determine childrens' interests in an increasingly complex culture.