Grandparent visitation

In the case of Troxel v. Granville, the United States Supreme Court stated that "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."[2] The Supreme Court also made it clear that this fundamental right is implicated in grandparent visitation cases. The plurality opinion stated at the outset that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import." However, the court clearly held that the states that did have grandparent visitation laws would not be held unconstitutional on their face, as requested in the case. The Supreme Court declared that a parent's fundamental right to the "care, custody and control of their children" was "at issue in this case." They held that in order for state laws to be constitutional, three things need to be in the law: 1) If there is a claim or action filed, it is the grandparent that has the burden of proof; 2) The court should give "deference" to a "fit" parent's decision; and 3) The grandparent may still proceed with their request for grandparent visitation and overcome being denied contact; and each state should have a set of factors for the court to evaluate when deciding to either grant or deny a grandparent's request, over a parent's objections. The Supreme Court struck down the Washington visitation statute because it was not their grandparent visitation statute that was being evaluated and the statute that the grandparent filed under was "over broad" and too excessive. Prior to the case being heard by the US Supreme Court, the state legislature in Washington repelled the law in question, but allowed their grandparent visitation law to remain in place, as that law was never challenged in the case.

State courts considering non-parent visitation petitions must apply "a presumption that fit parents act in the best interests of their children.".[3] Troxel requires that state courts must give "deference" or some special weight to a fit parent's decision to deny non-parent visitation. "Choices [parents make] about the upbringing of children... are among constitutional rights, but were not an absolute right... sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect."[4] This principle must inform the understanding of the "special weight" that Troxel requires courts to give to parents' decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference.[5] The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will be overcome only by some compelling governmental interest and by overwhelmingly clear factual circumstances supporting that governmental interest.