Third Party Visitation Statutes: Society's Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute
By: Beth Sherman
Introduction
Throughout
However,
with the dramatic change in today’s understanding of “family,” [4] new societal values are creating a tension
between this long protected liberty interest and the developing view that what
constitutes a family involves more than the nuclear unit.[5] The result has been new legislation
reflecting society’s desire to expand the number of people holding recognized
interests within the family unit.[6] Nonparental visitation statutes have become
the most popular legislative method for increasing these third party rights.[7] Present in all fifty states,[8]
these statutes recognize that a nonparent has an interest in maintaining a
relationship with a child with whom they have formed a connection.[9] In addition, the statutes recognize that, for
the most part, a child holds a considerable interest in maintaining a
relationship with the nonparent as well.[10] Therefore, there are two main issues
concerning the nation regarding third party visitation statutes. First, whether these nonparental visitation
statutes are really serving a legitimate function.[11] Second, if their function is indeed
legitimate, whether they constitute a legally justifiable governmental
intrusion into the family unit.[12] Unfortunately, the answers to these questions
have been left unclear by the United States Supreme Court.[13]
This Note begins
by introducing the strong historical support for a parent’s fundamental liberty
interest, protected by the Fourteenth Amendment’s Due Process Clause, to
control the upbringing of his or her own child.
It also examines the limitations placed on that right.[14] Section two illustrates the need to balance
these two perspectives when analyzing the current debate over nonparental
visitation statutes. Section three
addresses how the case of Troxel v.
Granville[15]
reached the United States Supreme Court and the implications of the Court’s
decision. Section four focuses on New
York State by considering its nonparental visitation statutes,[16]
the effect of the Troxeldecision on
New York third party visitation cases,[17]
and the likelihood that, if challenged, New York’s current nonparental
visitation statutes would survive constitutional review.[18] Finally, section five argues that mediation
can only truly reduce the legal and emotional conflicts that exist over third
party visitation [19]
if third parties are first provided with statutory standing.
II. BOUNDARIES FOR PARENTAL DECISIONMAKING
ESTABLISHED BY THE UNITED STATES SUPREME COURT
A.
Meyer
v. State of Nebraska[20]
and Its Progeny: Cases Supporting a Parent’s Fourteenth Amendment Right to
Control the Upbringing of His or Her Child
Meyer
v. State of Nebraska is an early
case supporting the contention that a parent has a Fourteenth Amendment Due
Process right to control the upbringing of his or her child.[21] In Meyer,
a teacher defied a criminal statute by instructing a student in a foreign
language when he had not yet passed the eighth grade.[22] The teacher’s conviction was challenged and
later reversed as unconstitutional by the United States Supreme Court. [23] Although the Court recognized a state’s
interest in promoting civic development, it held that Nebraska’s
statute was too arbitrary to survive constitutional review when it was balanced
against a parent’s fundamental right to control the education of his or her
child.[24] Therefore, Meyer affirmed through substantive due process the already present
societal belief that parents have a constitutional right to raise their
children as they see fit.[25]
Other cases brought before the United States
Supreme Court provide support for this constitutional right of parents to
“parent.”[26] In Pierce
v. Society of Sisters,[27]
a statute requiring students to attend only public schools was challenged. Held unconstitutional, the United States
Supreme Court reasoned that state regulation over a parent’s choice for his or
her child’s education “…unreasonably interferes with the liberty of parents and
guardians to direct the upbringing and education of children under their control.”[28]
While
Meyerand Pierce provide foundational
support for the claim that parents have a well-established fundamental right to
be the ultimate decision-makers for their children, the Supreme Court in Parham v. J.R.[29]
provides the oft cited reasoning
behind this parental right. In Parham,[30]
institutionalized children brought a class action suit challenging a statute
which permitted their parents to institutionalize them, while children, against
their will. The United States Supreme
Court held the statute constitutional based upon the “natural bonds of
affection” parents have for their children.[31] The Court contended that historically,
parents have been perceived as acting in the best interests of their children.[32] Therefore, the legislature’s presumption that
parents will typically act in their children’s best interests, was reasonable
when the legislature formulated the statute.[33]
B. The Broad Protection
Afforded to Parental Rights Under the Fourteenth Amendment is Not Unlimited
The 1944 Supreme Court case of Prince v. Massachusetts[34]
demonstrates that, although there is a strong constitutional right to raise
one’s child without state interference, the right is not unlimited. In Prince,
a child’s legal guardian was criminally charged for defying a child labor
statute which prohibited any person from aiding a minor violating the law.[35] Although the Supreme Court viewed the
guardian as the child’s parent,[36]
it still found the statute constitutional and the guardian in violation.[37] Therefore, while a parent does have a
fundamental liberty interest in directing the upbringing of his or her child,
the state may still limit the degree of parental freedom in areas that may
otherwise adversely affect the child’s welfare.[38]
The limitation demonstrated in Prince, derives from the state’s right
to regulate under its parens patriae power:
The
parens patriae doctrine allows a state to protect its quasi-sovereign interests
in the ‘health, comfort, and welfare of its citizens.’ The doctrine of parens
patriae, literally ‘parent of the country’ comes from English common law…. The state’s parens patriae power thus fits
within the state’s police power ‘to regulate public health and safety, maintain
the peace, and provide for the general welfare.’[39]
This state power is balanced
against a parent’s fundamental right to control the upbringing of his or her
child. Although a parent is granted
broad discretion,[40]
this parens patriae power prevents the parental right from being absolute.[41] Therefore, the first issue is whether these
nonparental visitation statutes are a constitutional use of the state’s parens
patriae power since their intended
purpose is to prevent a parent from behavior which adversely affects his or her
child’s health or general welfare.[42] Second, if these statutes are a
constitutional use of the state’s parens patriae power, the issue is then
whether the state’s interest is great enough to outweigh the parent’s
constitutional right to control the upbringing of his or her child. [43]
C. The Extent of a Grandparent’s
Right to Obtain Court Ordered Visitation With His or Her Grandchild
As stated in the Columbia Law Review,
At
common law, grandparents, who were denied access to their grandchildren by the
grandchildren’s parents had no recourse to the judicial system. Courts generally took the position that
judges may not interfere with parents’ decisions about how to raise their
children, and that ‘the obligation ordinarily to visit grandparents is moral
and not legal.’[44]
This created the illogical
scenario that a grandparent could more easily obtain custody of his or her
grandchild than be granted visitation over the parent’s objection.[45] However, as society began to place a greater
importance on the role of grandparenting, legislators and other political
leaders launched a concerted effort to expand grandparental rights.[46] One result was the promulgation of third
party visitation statutes specifically providing grandparents with standing to
seek court ordered visitation.[47]
The recent trend[48]
to expand nonparental visitation statutes for grandparents is motivated by
several factors.[49] First, as part of a strong political lobby,
grandparents have their interests taken quite seriously by the legislature.[50] Second, grandparents are living longer today
than ever before, thus creating a larger number of individuals interested in
this issue.[51] Third, today’s grandparents frequently take
over what has traditionally been the role of parents.[52] As a result, grandparents may legitimately
have a greater interest in maintaining a relationship with their grandchildren
than ever before.[53]
D. The Dilemma For Other Third
Parties Seeking Visitation Rights
Historically, the rights of third parties, other than
grandparents, have been even more limited.[54] Although some states recognize sibling rights
regarding visitation, [55]
many other third parties have never been recognized as holding any legitimate
legal relationship to the child.[56] Groups desiring such recognition may include,
but are not limited to, step-parents, siblings and other relatives, foster
parents, prospective adoptive parents, and biological parents’ nonmarital
partners.[57] In response to these societal changes, the
interests of these groups are sometimes discussed in court opinions.[58] However, for now, the lack of historical, precedential,
and statutory support still makes most claims by these third parties a near
certain defeat.[59]
Although there is far less support for
non-grandparent third parties seeking visitation, legal and political lobbying
is now underway to give these individuals similar judicial and statutory
recognition.[60] One argument in favor of these statutes is
simply that it is in the child’s best interest to have these individuals
permitted visitation.[61] Advocates contend that the changing nature of
society has not only created a new and more active role for grandparents, but
it has also incorporated new people into the lives of children.[62]
III.
THE UNCERTAIN STATUS OF
NONPARENTAL VISITATION STATUTES FOLLOWING THE UNITED STATES SUPREME COURT’S
DECISION IN TROXEL v. GRANVILLE[63]
All fifty states possess some
form of a nonparental visitation statute.[64] However, the constitutionality of many of
these statutes has come into question following the decision of Troxel v. Granville.[65] The United States Supreme Court held in Troxel that, as applied, Washington’s
nonparental visitation statute[66]
was an unconstitutional infringement upon a parent’s fundamental liberty
interest as guaranteed by the Fourteenth Amendment.[67]
A.
Washington’s
Nonparental Visitation Statute Was Determined By the United States Supreme
Court to Be Unconstitutional As Applied
Washington received the most attention for its
nonparental visitation statute when the case of Troxel v. Granville was appealed all the way to the United States
Supreme Court.[68] Although Troxel
was a family case, the Supreme Court still granted certiorari, thereby
demonstrating the high degree of national concern regarding this issue.[69]
In Troxel,
the grandparents (“Troxels”) petitioned the Washington Superior Court to obtain
a court ordered right to visit their grandchildren over the mother’s
(“Granville”) objections. The Troxels
sought relief under the following Washington statute, which provided in
pertinent part that:
Any
person may petition the court for visitation rights at any time including, but
not limited to, custody proceedings. The
court may order visitation rights for any person when visitation may serve the
best interest of the child whether or not there has been any change of
circumstances.[70]
The Troxels claimed that
they should be granted court ordered visitation because, among other reasons,
it was in their grandchildren’s best interests to continue with a visitation
schedule similar to the one that had existed before their father’s suicide.[71] In addition, the Troxels argued that they had
always maintained an important relationship with their grandchildren.[72] In her defense, Granville stated that she had
not denied her children any visitation with their grandparents, but had merely
limited the amount.[73]
The United States Supreme Court
held the Washington statute regarding third party visitation rights
unconstitutional as applied.[74] The Court gave particular weight to the facts
that the mother had not denied the grandparents visitation entirely[75]
and that the trial court had made a presumption in favor of the grandparents
rather than the fit parent.[76]
However, while this decision may provide the
impression that grandparents do not have a claim for visitation above the
objections of a fit parent, that would be a mischaracterization.[77] In fact, several aspects of the Troxel decision leave its precedential
value, regarding parental decisionmaking, in serious question. [78] First, the opinion was written merely as a
plurality.[79] Second, the plurality did not hold the
Washington statute to be facially unconstitutional, but rather unconstitutional
as applied.[80] Finally, each opinion, and there are six,
provides a different argument about the merits and demerits of this case and
other nonparental visitation statutes in general.[81] Therefore, the Troxel decision provides no clear rule for state legislatures to
follow when attempting to formulate a nonparental visitation statute that
avoids unconstitutional infringements upon a parent’s liberty interest.[82]
B.
Constitutional
Concerns Regarding the Expansion of Third Party Rights Provided By Nonparental
Visitation Statutes
Although every state has some form of a nonparental
visitation statute, several of these state statutes, like in Washington,
already have been challenged.[83] The claim is that these nonparental
visitation statutes allow third parties to unconstitutionally intrude, in
several ways, upon the well-established fundamental right of a parent to
control the upbringing of his or her child.[84] One argument is that these statutory
expansions allow trial judges to substitute their beliefs, of what is in the
best interests of the child, for those of a fit parent.[85] A second contention is that some of these
statutes are so broad that they permit suits by any person at any time, even
if they had no substantive relationship with the child.[86] A third major criticism is that these
statutes, with their open standing requirements, enable petitioners to drag
parents into court at any time, even if the claim lacks any real merit.[87]
IV. APPLYING THE TROXEL v. GRANVILLE DECISION TO NEW YORK’S NONPARENTAL VISITATION
STATUTES
A.
The
Uncertain Implications of the TroxelDecision
in New York State
It is difficult to determine the
future status of New York’s nonparental visitation statutes in the wake of the Troxel decision.[88] New York’s visitation statutes confer
standing to grandparents[89]
and siblings[90]
before proceeding to a best interests inquiry.[91] However, the New York Court of Appeals has
not addressed this issue since the Troxel
decision. In addition, only a small
number of New York’s lower courts have addressed the subject. Therefore, New York does not have firmly
established case law on the topic of third party visitation.[92]
After the Troxel ruling, New York’s nonparental visitation statutes appear to
be facially constitutional. However,
counterarguments exist.[93] For example, the petitioners denied standing
in Troxel were grandparents who had
maintained precisely the close relationship that the New York grandparental
visitation statute was designed to protect.
If the Troxels were enjoying unconstitutional protection, how can New
York’s grandparents statute be constitutional?
The answer is that the implication of the Court’s decision to limit its
holding cannot be underestimated.
B.
An
Explanation Supporting the Likely Constitutionality of New York’s Two
Nonparental Visitation Statutes
Although the Court denied grandparents standing in Troxel v. Granville, there are several
significant differences between the Washington statute as applied in Troxel, and the nonparental visitation
statutes in New York. First, the
plurality specifically stated that this decision should not be viewed as
determining whether nonparental visitation statutes in general are, or are not,
constitutional.[94] Second, the decision did not hold the
Washington statute, a statute much broader than either of the New York
statutes,[95]
to be unconstitutional on its face.[96] Third, the Court stated that the trial judge
erred by substituting his own opinion for that of a fit parent without giving
the parent’s decision “special weight.”[97] Fourth, the plurality acknowledged that
Granville did not deny the Troxels any visitation rights, but was merely
limiting them.[98] Fifth, the Troxel decision did not address N.Y. DOM. REL. §71 (2001) at
all. In fact, the court’s judgment only
pertained to Washington’s broad nonparental visitation statute’s
unconstitutional application to specific parties. In contrast, N.Y. DOM. REL. §71 is a specific
nonparental visitation statute for siblings.
Since there is no clear-cut
application of the decision, the effect of the case on New York families is
indeed minimal. By examining the few
lower and appellate court decisions in New York following the Supreme Court’s
decision, it is evident that Troxel
lacks strong precedential value.[99] Courts rely upon Troxel when it aids a favorable outcome and are able to easily
distinguish the decision when it does not.[100] As a result, the question of how to handle
family problems in this area remains unresolved.
V. WHAT IS MEDIATION AND WHY IS IT PARTICULARLY
APPLICABLE TO FAMILY LAW?
A. Definition.
Mediation has been defined as
“assisted communications for agreement”[101]
or “a process for resolving disputes by which an independent mediator assists
the parties in reaching a mutually satisfactory settlement.” It is an extension of the parties own
negotiations and is sometimes referred to as “supercharged negotiation.”[102] The mediation procedure, although less structured
than a courtroom, still follows defined rules.
First, the mediation process is both voluntary and non-binding.[103] It is not the job of the mediator to make a
final determination, but rather to aid the parties in formulating their own
solution by identifying the problems and assisting with the development of a
solution.[104] Since mediation is private and confidential,[105]
the results are inadmissible if there is a subsequent court proceeding.[106] In addition, each party may obtain legal
counsel for the mediation proceeding.[107] Although the actual format for these
proceedings can vary, most mediators use caucuses or private and confidential
meetings between a party and the mediator.[108] During these caucuses, the mediator examines
each party’s position and discusses with them their various options in order to
obtain a settlement.[109]
Mediation is different from
other forms of alternative dispute resolution (“ADR”) in that it is not
determinative.[110] In fact, the mediator is to refrain from
providing even an indication of a likely legal outcome.[111] In contrast, arbitration, another common form
of ADR,[112]
is much more similar to a trial.[113]
Arbitration is therefore more frequently used to resolve disputes between
discrete parties than between individuals with personal relationships.[114] In addition, thirty-five states have adopted
the Uniform Arbitration Act, making the arbiter’s decision potentially
enforceable under state and/or federal law.[115]
B. Why Do People Advocate Mediation?
One simple argument in favor of
mediation is that it works. According to
Mr. Roberts, in his article titled, Why
Mediation Works, 85% of all mediations result in a settlement.[116] However, there are other aspects of
mediation, enumerated by Mr. Roberts, that also serve to make mediation a more
attractive option than litigation.
First, litigation is generally more expensive than mediation.[117] Second, mediation arguably provides the
opportunity for a more rapid settlement.[118] Third, the purpose of mediation is to achieve
the parties’ own solution to their
problem. [119] Fourth, mediation provides the parties with
an important sense of empowerment by allowing them to craft their own solution.[120] Fifth, mediation allows parties to either
preserve a continuing relationship or, if termination is necessary, to do so in
the most amicable way.[121] Sixth, mediation can allow for a more
detailed and instructive solution.[122] Seventh, mediation facilitates the creation
of an agreement or a win/win outcome.[123] Eighth, parties can use mediation as an
opportunity to “test market” their settlement proposal.[124] Ninth, although litigation is at times
motivated by a desire to inflict pain or injury, such emotional reactions often
fade over time.[125] Mediation, therefore, provides an opportunity
to express one’s position, under the other party’s focused attention, without
the detrimental effects of litigation.
C. Why Mediation Is Especially Suited to the
Family Law Context
Following the promulgation of
the 1984 Model Standards and the 1984 ABA Standards, interest in family mediation grew as well.[126] The motivating principle was that family law,
especially divorce related issues, is particularly suited to the mediation
process.[127] In response to these claims, the Symposium on
Standards of Practice (“Symposium”) created thirteen standards, each with
subparts, to provide models for how family mediation must, should, and can be
handled.[128] The Symposium developed these models over a
period of time and with the aid of several experts in the field.[129] However, even with the considerable effort made
by various professionals, the model standards are intended to act as merely a
first guide in an ever-evolving field, not as a final solution to a complicated
problem.[130]
In general, litigation is a
slow-moving and expensive process.[131] However, within the family context,
litigation often has additional problems.[132] The issues are further complicated when the
dispute involves children.[133] Therefore, since the presumed goal of both
the parent and the petitioning nonparent is the best interests of the child,
any court action that has a negative impact on the child should be counter to
the goals of either party.[134] In other words, the goal here is often
different from that of other forms of litigation. Rather than a desire to win at almost any
cost, both parties should be unwilling to risk the adverse consequence of
injury to the child, even if it means sacrificing victory. This common interest makes the disputants
particularly strong candidates for mediation.
VI. UNFORTUNATELY, COURT ORDERED MEDIATION IS A
PREMATURE SOLUTION TO THE FUTURE PROBLEMS FOR NEW YORKAND OTHER STATES’
NONPARENTAL VISITATION STATUTES
A court ordered solution, prior
to a trial over child visitation, could help stem the harmful effects of
litigation within the family unit.[135] However, recommending mediation as a solution
to these competing interests is premature if a claimant does not have legal
standing to petition for visitation.
Although New York’s nonparental visitation statutes are, in particular,
likely to survive a constitutional challenge,[136]
the national movement to expand these statutes to include individuals less
traditionally viewed as “family,” is the only way to truly provide third
parties with the bargaining power necessary to make mediation a viable solution
for their disputes.[137]
A. Mediation Without Any Statutory Standing Is a
Premature Solution
Mediation could provide a
potential solution for all parties if each had a legitimate legal claim. For example, mediation’s non-binding nature
allows parents to maintain their rights in court as the ultimate
decision-makers for their children. At
the same time, it provides third parties with an alternative to arguing their
legal grievances in court, where legal precedent is not likely to be in their
favor.[138] However, there is little incentive for
parents to accept mediation as a reasonable alternative when they are aware
that an opposing party does not even have standing to make a legitimate threat
to bring suit.
B. Analyzing the Proposition Provided in In the Aftermath of Troxel v.
Granville: Is Mediation the Answer? [139]
In his article, In the Aftermath of Troxel v.
Granville: Is Mediation the Answer?,
author Michael Ratner discusses the pros and cons of court-ordered mediation as
a solution to the conflicts of grandparental visitation statutes.[140] If New York’s nonparental visitation statutes
for grandparents and siblings are affirmed as constitutional, court-ordered
mediation, as provided for in Florida, may be the best solution.[141] However, while Ratner’s proposition of
mediation as an intervening step prior to litigation is, , a positive
suggestion for the field of family law in general,[142]
mediation is still not a good enough alternative for those parties who do not
have statutory standing to seek suit.[143] The only legitimate solution for these
parties is the expansion of nonparental visitation statutes. Since broad statutory standing was rejected
in Troxel,[144]
it is possible that the only constitutional method to expand these statutes is
by specifically enumerating the groups which state legislatures believe possess
a legitimate interest in visitation.
C. A Look at the Future
There is case law,[145]
legislative support[146]
and strong public sentiment[147]
behind the movement for more expansive nonparental visitation statutes.[148] The opinion in Multari v. Sorrell[149]
is reflective of the judiciary’s changing view in this area. In Multari,
the petitioner had developed a bond with the child during the six year period
he was involved in a relationship with the child’s mother. However this former boyfriend still did not
possess statutory standing to seek visitation even though he had lived with the
child and child’s mother since the child was eighteen months old. It is clear from Justice Peter’s concurrence
that, while he felt compelled to hold for the respondent mother when the
petitioner failed to meet a claim for equitable estoppel, he did not believe
the court’s reasoning promoted what would be in the best interests of the
child. In fact, his opinion argues
against the traditional method of statutory interpretation in this situation.[150] Here, Justice Peters admonishes the
majority’s narrow reading of the New York statute and claims that decisions
held by the Court of Appeals, favoring biology as the determining factor in
deciding the legal parent, has the effect of tying judges’ hands rather than
enabling them to serve the child’s best interests.[151]
However, even if visitation rights for third parties
have a positive effect on children,[152]
the Fourteenth Amendment Due Process right of the parent does begin to erode as
more people are permitted standing to seek visitation over the parent’s
objection. This places state legislators
in an undesirable position. To expand third party visitation rights asks them
to reconcile the interests of these emerging groups with their obligation to
protect a parent’s constitutional right to control the “care, custody and
management” of his or her child.[153] In
addition, legislators must continue to weigh these parties’ competing interests
with what is in the child’s best
interests, which can, at times, be counter to the goals of either litigating
party.[154]
Despite these difficulties,
the possibility of expanding nonparental visitation statutes becomes more
plausible when considering that the fundamental right of a parent, although
possessing strong precedential support,[155]
is still not immune from attack. Arguments for imposing a limit upon the
fundamental rights of parents provided by the Constitution can be found in
Justice Scalia’s dissent in Troxel .[156] Although Justice Scalia announces his belief
that parents are the best decisionmakers for their children, Scalia denies the
plurality’s contention that there is overwhelming support for the parent’s
fundamental liberty interest.[157] In addition, Justice Scalia denounces the
foundation of this liberty interest claim by reiterating that it derived from
substantive due process and not from any constitutional text.[158]
Still, it is not Justice
Scalia’s recommendation that these substantive due process cases be overruled.[159] Instead, his claim is that these nonparental
visitation statutes do not belong in the same category as prior cases because
they are representative of a new perception of the family unit.[160] He contends that it is not the rights of the
parent which are changing in relation to the state’s parens patriae power, but
rather that the narrow definition of this liberty interest (applying solely to
parents) is changing as society’s view of the family unit is expanding. This change should be reflected through the
legislature in the democratic way it was intended.[161] Therefore, discretion should be granted to
the legislature regarding these statutes since it is not the role of the courts
to create law in new areas.[162]
Since there is evidence that the
Supreme Court remains adverse to creating a firm rule about what is an
acceptable visitation statute,[163]
it is likely that states will again make their own determinations about what is
an appropriate nonparental visitation statute, so long as it remains within the
new limitation prescribed.[164] Therefore, as society’s perception of the
family unit continues to change, legislatures will continue to push the
envelope when promulgating third party visitation statutes. So long as these statutes are specific and
permit parent’s to have presumptive weight to satisfy their Due Process right,
courts should allow these legitimate petitioners to have their day in court to
demonstrate that visitation with them is invaluable to that particular child. This is the best way for deserving third
parties to gain the rights they feel entitled to receive, and for children to
maintain the important relationships that they have formed.
VII. CONCLUSION
The presence of grandparent and
other third party visitation statutes throughout the United States indicates
that there is wide public support behind the claim that these parties have a
right to seek visitation to continue their relationship with a particular
minor. However, constitutional rights
are not simply set aside because of strong societal opinion. Therefore, the right of a parent to be the
ultimate decisionmaker for his or her child’s best interests will likely remain
in some form. However, because of the
changing nature of society, the view of what constitutes a “family” or even a
“parent” is shifting. Due to this
change, prior case law supporting this fundamental right will need to be
adjusted in order to encompass those parties that were never before interpreted
to have such protection. As legal rights
are expanded, so too should an alternative means of dispute resolution. At the very least, even if neither potential
litigant feels that they have truly “won” after the mediation process, it is
the child who has maintained a victory in retaining a more intact family.
However, for this process to
receive maximum results, the legal rights of these petitioning third parties
must be expanded before mediation can be provided as a truly viable
solution. In order to agree to
mediation, parties must often first feel that they have something to gain. Unless the courts allow state legislatures to
expand their nonparental visitation statutes to conform with society’s changing
views about who should have visitation rights, neither ADR nor any aspect of
the judicial system will be able to help resolve the problems, especially for
third parties without statutory support, within these warring families . Of course, the end result of this stalemate
is further harm to the subjects of the dispute, the people we are ultimately
trying to protect, the children.
[1]
Professor Janet Dolgin, Class Lecture at the
However
it was less radical circumstances which first broke the ground regarding the
traditional definition of family. See
[2] See In
re Knowack, 53 N.E. 676 (N.Y.
1899) (holding children removed by a state agency can and must be returned to
their families whenever possible because of “every consideration of
humanity”). This decision eventually led
to the determination that parental rights are a fundamental liberty interest
constitutionally protected through the Due Process Clause of the Fourteenth
Amendment. See Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing this
constitutional protection formally); see
also Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[3]
This fundamental liberty interest derives from the Fourteenth Amendment Due
Process Clause. See Meyer, 262 U.S. 390 (1923) (holding a parent’s right to
determine the language of their child’s education outweighs the state’s
interest in promoting english to ensure civic development). See
also Pierce v. Society of Sisters, 268 U.S. 510 (1925). Parents have a constitutional right to
determine whether their child attends a public or private school. This liberty
interest derives from substantive due process which is still applied today
within the family context. Id.
See, e.g., Troxel v.
Granville, 530 U.S. 57 (2000) (reaffirming this Fourteenth Amendment Due
Process right of parents to control the care, custody, and management of their
child). The Court accepted a parent’s
refusal to allow the grandparents visitation even when an impartial party
(judge) believed it to be in the child’s best interest for the visitation to be
permitted. See id.
[4] See Troxel,
530 U.S. at 63-64 (recognizing that the family dynamic is, and continues to be,
in the process of substantial change).
Traditionally, a family has been defined by a specific biological
connection between parents and their children.
However, due to a number of different factors, this definition has
evolved to include extended family members such as grandparents, aunts, and
uncles. In addition, less traditional
third parties such as same sex partners, or other individuals who live in the
home, are now being considered. This is
in large part due to societal changes about what it means to be a family. See id. See
also DivorceSource.com, Grandparent
Issues *1, at http://www.divorcesource.com/info/grandparents/grandparents.shtml
(last visited Aug. 31, 2001) (explaining the dramatic change in the
grandchild/grandparent relationship within the past twenty years is the result
of statistical increases in the divorce rate, single parenthood, adult drug and
alcohol abuse, and general economic issues).
[5] See Susan Tomaine, Comment, Troxel v. Granville: Protecting Fundamental
Parental Rights While Recognizing Changes in the American Family, 50 CATH.
U. L. REV. 731, 739-49 (2001). Societal
changes have created an interest in grandparents and other third parties that
are now being recognized by state legislatures.
See id. See
also Loma Davies Silcott, Grandparent
Visitation Rights *3, available at
http://www.dnai.com/~mags/visit.html
(last visited Aug. 31, 2001) (demonstrating the pressure that these groups are
now placing on the traditional view of ‘family’). The article recommends to grandparents that
they exercise their political muscle by forming support groups. These support groups should lobby for the
creation of local, state, and national laws which support grandparent
visitation rights. See id. See also Harvey Landau, Grandparent’s Visitation Rights-To
Grandfather’s House We Go? *3-4, at
http://www.divorcesource.com/NY/ARTICLES/landau1.html
(last visited Aug. 31, 2001) (recommending alternative dispute resolution with
the help of a family friend, relative, minister, or school psychologist). However, even with this eye on mediation, the
author still does not discount litigation as an available alternative. See id.
Third parties other than
grandparents are seeking visitation rights, through court if necessary. See The
National Center for Lesbian Rights and The American Civil Liberties Union, Interest of Amici Curiae *2, available at http://www.nclrights.org/pubs/nclrbrief_dvoak-amicus.doc
(last visited Jan. 22, 2002). Petitioner
Katharine Dvorak brought suit to maintain a relationship with the child that
she had raised since birth alongside the child’s biological mother who was
Dvorak’s former partner. See id.
[6] See Tomaine, supra note 5, at 741-49. All
fifty states have adopted some form of a grandparent visitation statute. Although the legislation is not uniform,
these statutes generally comprise two important elements. The first is to define the circumstances
under which a grandparent gains standing for court ordered visitation. The second is to establish guidelines that
judges must follow in order to grant such a visitation petition. However, although the circumstances for
standing and the guidelines provided can vary significantly from state to
state, each jurisdiction either explicitly or implicitly requires that the
visitation be in the child’s best interests.
See id.
[7] See
id. at 731-732, 741, 744. Wide support for this new legislation does
not only derive from interested third parties.
Such statutes have also been endorsed by the President, various
legislatures, and political lobbies. See id.
[8] E.g., id. at 731, 741.
[9]
The lobbying by grandparents and other third parties have convinced lawmakers
that some third parties, like grandparents, have a legitimate interest in
maintaining a relationship with the child that merits legal protection. See
Troxel, 530 U.S. at 64. Justice O’Connor acknowledges that the
popularity of nonparental visitation statutes is due at least in part to the
statewide recognition that children benefit from maintaining relationships with
the particular individuals with whom lawmakers have chosen to recognize by
statute. See id.
[10] See id.
All nonparent visitation statutes are created with at least the
understanding that visitation is granted only if it is in the best interests of
the child. Therefore, by simply
promulgating these statutes, the assumption by legislators is that children do
benefit from contact with these other ‘interested’ adults.
However there are arguments
that these good intentions do not result in the best interests of the
child. See Landau, supra note 5,
at *1 (arguing that there are legislators and judges who believe that a
court-mandated visitation schedule for grandparents, over the objections of the
parent, cannot be in the child’s best interests). See
also Parentsrights.com, The Coalition
for the Restoration of Parental Rights Missouri Chapter *1, at http://www.parentsrights.com/missouri
(last visited Jan. 22, 2002)
(demonstrating that there are several parent advocate groups lobbying for the
repeal of nonparental visitation statutes).
See ParentsRights.net, The Myth of a Need for “A Grandparent Child
Abuse Police Force” at
http://www.parentsrights.net/grady/grady-myth.html (last visited Jan. 22, 2002)
(discounting the argument that there is any need for forced visitation to
prevent child abuse since advocates seeking such visitation are doing so even
over the objections of a presumptively fit parent).
Still,
a popular counterargument is that the animosity between a parent and these
third parties already exists, and is therefore not the product of the
litigation, but rather the end result of an already existing problem. See
DivorceSource.com, Grandparent Issues
*1, at http://www.divorcesource.com/info/grandparents/grandparents.shtml
(last visited Aug. 31, 2001) (rationalizing that if it is necessary for a
grandparent to go to court to obtain visitation rights, then there must already
be a contentious relationship between the grandparent and the child’s parent
otherwise they would be able to find a solution without court
intervention).
[11]
There is inconclusive data about whether third party visitation, over a
parent’s objection, serves or harms the best interests of the child. Therefore, is it responsible to promulgate
legislation that facilitates this end when it is only certain that it fulfills
the desires of the third party?
[12]
Several nonparental visitation statutes have been determined unconstitutional
for having exceeded any lawful invasion of a parent’s fundamental liberty
interest to control the upbringing of their child. The most famous example is Troxel v.
Granville, 530 U.S. 57 (2000) where the United States Supreme Court held
Washington’s nonparental visitation statute, WASH. REV. CODE § 26.10.160(3), to
be unconstitutional as applied.
[13] See Emily Buss, Adrift in the Middle: Parental
Rights After Troxel v. Granville, 2000 SUP. CT. REV. 279, 279-281
(2000). Troxel v. Granville provides the Supreme Court’s first and perhaps
only word regarding the constitutionality of third party visitation statutes. However, the result reached by the Supreme
Court is troublesome since, in attempting to serve the interests of all
parties, the court reached an untenable decision. It is impossible to preserve parental rights
in the traditional fashion, recognize the interests of third parties, and still
promote the best interests of the child.
To do so only creates endless litigation by asking the lower courts to
set a standard even though the United States Supreme Court and the legislature
have been unable to do so. Id.
See also Lynne Z. Gold-Bikin, How a Supreme Court Decision May Determine
Whether You Can See Your Grandchildren *2 at http://www.igrandparents.com/grandTopics/articles/Mini-Sites/GPRights/SCMayDetermine.asp
(last visited Jan. 22, 2002). This
article assures grandparents that the Troxel decision has no precedential value
on statutes currently in effect by citing the following from the Troxel opinion:
Because
we reset our decision on the sweeping breadth of Section 26.10.160(3N)..we do
not consider the primary constitutional question…whether the due process clause
requires all non-parental visitation statutes to include a showing of harm or
potential harm to that child as a condition precedent to granting
visitation. We do not, and need not,
define today the precise scope of the parental due process right in the
visitation contest.
Id.
[14] See, e.g., Prince v. Massachusetts, 321
U.S. 158 (1944).
[15]
Troxel v. Granville 530 U.S. 57 (2000).
[16]
N.Y. DOM. REL. §§71, 72 (2001).
[17]
There have been few cases dealing directly with third party visitation
following the Troxel decision. However the cases which have been decided in
New York since that landmark case include: Hertz v. Hertz, 2002 N.Y. App. Div.
LEXIS 2161 (2d Dept. 2002); Morgan v. Grzesik, 732 N.Y.S.2d 773 (4th Dept.
2001); Chaya v. Herbert, 725 N.Y.S.2d 576 (2d Dept. 2001); In Re Multari v.
Sorrell, (3rd Dept. 2001); Lawrence v. Lawrence, 275 A.D.2d 985 (4th Dept.
2000); Farag v. Ghebriyal, 2001 N.Y. Misc. LEXIS 453 (Fam. Ct. Queens Co.,
2001); Mark N. v. Runaway Homeless Youth Shelter, 2001 N.Y. Misc. LEXIS 331
(Fam. Ct. Chautauqua Co., 2001); Allison T. v. Kimberly B., 2001 N.Y. Misc.
LEXIS 339 (Fam. Ct. Orange Co., 2001); Webster v. Ryan, 729 N.Y.S.2d 315 (Fam.
Ct. Albany Co., 2001); Davis v. Davis, 188 Misc.2d 81 (Fam. Ct. Ostego Co.,
2001); Fitzpatrick v. Youngs, 717 N.Y.S.2d 503 (Fam. Ct. Jefferson Co., 2000);
Smolen v. Smolen, 713 N.Y.S.2d 903 (Fam. Ct. Onondaga Co., 2000).
[18]
Since New York has had so few cases on this issue, and the Court of Appeals has
not addressed the constitutionality of New York’s nonparental visitation
statutes following the Troxel decision, it is impossible to make an absolute
determination about the statutes’ constitutionality. However, appellate courts which have
addressed this topic have held that the Troxel decision does not render the
nonparental visitation statutes unconstitutional per se and that they can in fact
be constitutionally applied. See Morgan, 732 N.Y.S.2d at 773. “Troxel
does not call into question the facial validity of Domestic Relations Law §72
and the application of Domestic Relations Law §72. This case does not violate the respondents’
rights under the Due Process Clause.” Id.
[19] See Andrew Schepard, The Evolving Judicial Role in Custody
Disputes: From Fault Finder to Conflict
Manager to Differential Case Management, 22 U. ARK. LITTLE ROCK L. REV.
395, 4405 (2000). There is great
emotional turmoil for children when dealing with their parents’ divorce. To reduce this conflict, it is important for
the child to be able to maintain the stable relationships he or she has had
developed before the divorce occurred. See id.
[20]
262 U.S. 390 (1923).
[21] See Troxel,
530 U.S. at 65. In the most recent
United States Supreme Court case dealing with the issue of parental rights,
Justice O’Connor in her plurality opinion affirmed through dicta that Meyer, 262 U.S. 390 (1923) and its
progeny, have established a fundamental liberty interest that is possibly the
oldest interest recognized by the United States Supreme Court. Id. See
also Santosky v. Kramer, 455 U.S. 745 (1982); Parham v. J.R., 442 U.S. 584
(1979); Quillion v. Walcott, 434 U.S. 246 (1978); Wisconsin v. Yoder, 406 U.S.
205 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Prince v. Massachusetts,
321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[22] See Meyer,
262 U.S. at 401. Nebraska’s purpose for
enacting this statute “was to promote civic development by inhibiting training
and education of the immature in foreign tongues and ideals before they could
learn English and acquire American ideals….”
Id.
[23] See id.
at 401 (determining the right of a parent to decide the instruction necessary
for his or her child’s education fell within the purview of an individual’s
fundamental right to control his or her child’s upbringing). Since the statute was unconstitutional, the
conviction was reversed. Id.
[24] See id. at 403 (stating that the
exercise of the state’s police power was arbitrary and without any reasonable
relation to a legitimate state goal).
[25]
Prior to Meyer, 262 U.S. 390, which
held there to be a Fourteenth Amendment right to control the upbringing of
one’s own children, there was already present in society a recognized view that
parents have such a right and that it deserved special protection. See
In Re Knowack, 53 N.E. 676 (N.Y. 1899) (holding children removed from their
parents’ custody are, if possible, to be returned to their parents because of
“public policy and every consideration of humanity”).
[26] See Troxel,
530 U.S. at 65-66. In her plurality
opinion, Justice O’Connor recognizes that in addition to Meyer, 262 U.S. 390, several other cases have helped establish the parameters
of this fundamental liberty interest.
The cases listed include, but are not limited to, Santosky, 455 U.S. 745; Parham,
442 U.S. 584; Quillion, 434 U.S. 246;
Yoder, 406 U.S. 205; Stanley, 405 U.S. 645; Prince, 321 U.S. 158; Pierce, 268 U.S. 510. See id.
[27]
268 U.S. 510.
[28] Id. at 534-35. See
accord Yoder, 406 U.S. 205
(holding that Amish parents have a constitutional right to prevent their
children from attending any school beyond the eighth grade). The court predicated its decision upon two grounds. The first was based on the strong religious
belief of these “model Americans” that their children should not continue to
have formal schooling beyond the eighth grade.
The second was based on the court’s determination that the state had a
lesser interest in requiring these children to attend school than did the Amish
parents in controlling the upbringing of their children. Id. While the court did hold for the Amish, this
determination was not made without first balancing the Amish parent’s interest
with that of the state. By so doing, the
court recognized that the state, through its parens patriae power, has some
control over parental discretion when it impacts a child’s physical or mental
health. The court merely determined
that, in this instance, the state could not exercise its power over the
judgment of the child’s parents.
This decision can easily be viewed as applying only
to the Amish. See Professor Janet Dolgin, Class Lecture
at the Benjamin N. Cardozo School of Law, Parent Child and The State (Sept. 24,
2001). Justice Burger wrote the opinion
after having switched sides in order to make the holding as narrow as
possible. As a result, there is likely
no group other than the Amish that could fit into the narrow parameters of the
holding provided in this case. See id.
[29] Parham, 442 U.S. 584.
[30] Id.
[31] Id. at 602. Although Parham
is the case cited to provide this reasoning, the concept and language derives
from Blackstone.
[32] Parham, 442 U.S. at 602.
[33] See id.
See also Professor Janet Dolgin, Class Lecture at the Benjamin
N. Cardozo School of Law, Parent Child and the State (Sept. 26, 2001). The presumption becomes even less credible
when considering that some children are under the protection and control of
governmental agencies rather than their natural or adoptive parents. However, this distinction was not considered
significant by the court. In contrast,
the state’s bond with the child is, for these purposes, determined to be equal
to that of the parent because of the state’s parens patriae power. See id.
[34]
321 U.S. 158 (1944).
[35] Id. at 160. The child’s aunt had aided the minor by
permitting her to sell religious publications on the street. Id.
[36] Id. at 170. Although it is atypical to view a guardian as
holding the same legal rights as a parent, the facts of this case allowed the
court to view it in an unusual light.
Therefore, as precedent, the case is applied as though a parent rather
than a guardian is being denied Fourteenth Amendment protection. Id.
[37]See id. at 164.
In addition to the Fourteenth Amendment Due Process challenge, the
guardian also claimed that the child labor statute violated the First
Amendment’s guarantee of the free exercise of religion. This First Amendment challenge was also
denied. See id.
[38] Id. at 167 (1944). See
accord Yoder v. Wisconsin, 406 U.S. 205 (1972). Although Justice Burger’s opinion did support
the Amish parents’ right to terminate their children’s formal schooling after
the eighth grade, the holding was so narrowly written that it is unlikely that
the decision could be appropriately applied to any other group.
[39]
Eric B. Martin, Notes & Comments, Grandma
Got Run Over By The Supreme Court:
Suggestions For A Constitutional Nonparental Visitation Statute After
Troxel v. Granville, 76 WASH L. REV. 571, 576 (2001).
[40] See supra note 23.
[41] Prince, 321 U.S. at 158.
[42] See Troxel,
530 U.S. at 64. “The nationwide
enactment of nonparental visitation statutes is assuredly due, in some part, to
the States’ recognition of these changing realities of the American
family. Because grandparents and other
relatives undertake duties of a parental nature in many households, states have
sought to ensure the general welfare of the children therein by protecting the
relationships those children form with such third parties.” Id. It follows that if the states felt the need
to protect these relationships because they are important to the welfare of the
child, a parent depriving the child of such a relationship, without good
reason, can be seen as causing the child harm.
[43]
Martin, supra note 45, at 577. “Thus, although the right to custody, care,
and nurturing of children resides first in their parents, the parent’s power
must give way to the child’s best interest when the state exercises its parens
patriae power.” Id.
[44]
Judith L. Shandling, Note: The Constitutional Constraints On
Grandparents’ Visitation Statutes, 86 COLUM. L. REV. 118 (1986).
[45]
Martin, supra note 45, at 576. The reason for this paradox was that a
custody suit was based upon the “best interests of the child” standard whereas
visitation was predicated upon the stricter ‘harm to the child’ standard. Id.
[46]
Tomaine, supra note 5, at 731, 732,
741, 744. Broad support for this new
legislation not only includes the interested third parties, such statutes have
also been endorsed by the President, various legislatures, and political
lobbys. Id.
[47]
Although some states like Washington promulgated broad nonparental visitation
statutes, other states provide standing specifically to grandparents or other
third parties. New York is such an
example, where it specifically recognizes the interest of grandparents in N.Y.
DOM. REL. §72 (2001).
[48] See Landau, supra note 5, *2, at http://www.divorcesource.com/NY/ARTICLES/landau1.html. “In the last several years, many states have
enacted statutes that create a right of grandparents to seek court-ordered
visitation. These laws recognize the
unique importance of the relationship between grandparents and
grandchildren.” Id.
[49] See Tomaine, supra note 5, at 741-48 (discussing
how all fifty states have adopted grandparent visitation statutes). See
also The Divorce Support Page: Grandparent Visitation, *1, at http://www.divorcesupport.com/visitation/info/~grandparent.shtml
(last visited Aug. 31, 2001) Due to the popularity of third party
visitation statutes and the great number that have been promulgated, the current
trend in the courts is to promote, rather than to limit, grandparent
visitation. See id.
[50] See id. at 731, 744. Much of the recognition given to
grandparents’s rights has been due to the strong seniors’ lobby. See id.
[51] See Shandling, supra note 50, at 121.
[52] Troxel, 530 U.S. at 63-64. “The nationwide enactment of nonparental
visitation statutes is assuredly due, in some part, to the changing realities
of the American family.” Id. Justice O’Connor continues by stating that
these changing realities have forced grandparents to take on what were formerly
considered the role of the parent. In
addition, Justice O’Connor acknowledges that these statutes were intended to
recognize that it is to the child’s benefit to have a relationship with his or
her grandparent. See id. See
also Tomaine, supra note 5, at
739. See
also Landau, supra note 5, *1, at http://www.divorcesource.com/NY/ARTICLES/landau1.html. “In today’s society grandparents are playing
an ever-increasing role in the rearing of their grandchildren due to divorce or
their circumstances requiring them to be child-care providers for working
parents. The rise of drug and alcohol
abuse has also resulted in many grandparents playing a more active role in the
day-to-day lives of their grandchildren.”
Id.
But see John DeWitt Gregory, Blood Ties: A Rationale for Child Visitation
by Legal Strangers, 55 WASH & LEE L. REV. 351, 352 (1998) (concluding
courts and legislatures should reaffirm the legal right of parents to prevent
interference by legal strangers when it comes to determining how to raise their
child). See also Shandling, supra
note 50, at 121. There is little
psychological evidence to support the assumption that grandparents serve an
important function for their grandchildren.
In addition, there is evidence to indicate that grandparents do not see
their role as having much more than a symbolic significance. Id.
See also About.com, Why Grandparent Visitation Is Not a Special Right: Grandparents should not be accorded special
rights to see grandchildren against the wishes of suitable parents, at http://www.lawabout.com/library/forum/uc-grandparentrights.htm
(last visited Jan. 22, 2002) (contending that court ordered visitation for
grandparents is ultimately more harmful to the child). Although denying visitation may be unfair to
the grandparent, it is more important to protect the best interests of the
child. This protection cannot be
achieved if the government is given such latitude to intrude into family
life. In addition, applying the best
interests standard to grandparents is a misuse of its function since it was
intended to apply to parents, not third parties. Id. See
also Landau, supra note 5, *1,
3-4 at http://www.divorcesource.com/NY/ARTICLES/landau1.html. Some legislators and judges feel that it is
often not in the best interests of the child to prescribe court ordered
visitation for grandparents over the objection of a fit parent. Courts are especially reluctant to intervene
on behalf of grandparents when there is an intact nuclear family, believing
that the positive effects of grandparent visitation will not outweigh the
potential harm that could occur by undermining the already present stability
within the family. See id.
[53] See Landau, supra note 5, at *1, 3 at
http://www.divorcesource.com/NY/ARTICLES/landau1.html
(last visited Aug. 31, 2001). In part
due to societal changes, grandparental involvement in the lives of
grandchildren is greater than ever before.
In addition, it is generally recognized that grandchildren are better
served if they have a relationship with their grandparents and other family
members. Id. But see Parentsrights.com, The
Coalition for the Restoration of Parental Rights: Grandparent Visitation Rights
Are Not Ironclad *2 at
http://www.parentsrights.com (last visited Jan. 22, 2002). Although the grandparents’ interests are
considered, they are not the main concern.
“…[A]part from popular reference to ‘grandparent visitation statutes,’
these laws are not intended or designed to provide emotional sustenance for the
grandparent. The best interest of the
grandparents are not the touchstone for application of these statutes.” Id.
[54] See Tomaine, supra note 5, at 748-749. See also DeWitt Gregory, supra note 58, at 351-352 (possessing
the support of legislation and judicial decisions, grandparents are more
successful than other third parties when petitioning for visitation with their
grandchildren).
[55] E.g., N.Y. DOM. REL. §71 (2001).
[56]
Most statutes confer standing to a specific group or groups. Therefore, many parties are not heard,
despite their claim of a legitimate interest, because their group is not
enumerated by statute. See, e.g., Laurie A. Rompala, Abandoned Equity and the Best Interests of
the Child: Why Illinois Courts Must
Recognize Same-Sex Parents Seeking Visitation, 76 CHI.-KENT L. REV.
1933-1934, 1957 (2001). Lesbian and gay
parents are not listed as groups possessing standing in Illinois. As a result, these “coparents” are legal
strangers to their own children, and therefore, have no right to enter court
and make a claim for visitation. This
problem is growing as the concept of “coparents” becomes both more common and
socially acceptable. The absence of
statutory support has the effect of causing children, raised by these
coparents, to be prevented from their parental guidance. To protect the best interests of the
children, it is necessary for courts to expand the definition of interested
third parties, or even parenthood, to match what has become common societal
practice. See id.
Statutes attempting to
encompass less traditional third parties do so either by enumerating several
groups or using broad language, which can be interpreted to include these third
parties. However, such application can
cause constitutional problems. See e.g., WASH. REV. CODE
§26.10.160(3). Washington’s nonparental
visitation statute was determined unconstitutional as applied in the Supreme
Court case of Troxel, 530 U.S. 57,
partially because it conferred standing too broadly. The statute stated: “Any person may petition the court for
visitation rights at any time including, but not limited to, custody
proceedings. The court may order
visitation rights for any person when visitation may serve the best interest of
the child whether or not there has been any change of circumstances.”
[57]
Tomaine, supra note 5, at 748.
[58]
Rompala, supra note 62, at 1933-1934,
1936. Statistics show that the number of
planned gay and lesbian families has increased dramatically in recent years. In response, courts have come to recognize
gay and lesbian parents. Id.
However, considering the
untraditional nature of the belief that third parties should have legal
standing, much of the judicial opinions supporting this view can only be found
in dissents. See e.g., Alison D. v. Virginia M., 572 N.E.2d 27, 30 (N.Y.
1991). Chief Judge Judith C. Kaye of the
NY Court of Appeals, in her dissenting opinion, argued that determining the
child’s best interests should always be the court’s objective and that this is
problematic when the term ‘parent’ is interpreted to merely include the
appropriate biological status. Id.
See also Multari v. Sorrel,
2001 N.Y. App. Div. LEXIS 9308, *17-18 (2001).
“If in custody and visitation disputes, common sense, reason and an
overriding concern for the welfare of a child are to prevail over narrow
selfish proclamations of biological primacy, the assertion of equitable
estoppel by a nonbiological or nonadoptive parent must be given credence by the
courts. Therefore, while I agree with
the majority’s determination that petitioner herein lacked standing, I cannot
concur with their narrow reasoning which shrinks the prerequisite of standing
to a biological construct.” Id.
But see V.C. v. M.J.B., 163 N.J.
200 (2000) cert. denied, 2000 U.S.
LEXIS 6634 (2000) (holding although petitioning former domestic partner did not
have the right to joint legal custody, her role as a psychological parent
entitled her to regular visitation with the children). This demonstrates that some states do have
opinions, even in their highest courts, which recognize third parties who are
not traditionally seen as parents. But c.f. The National Center for Lesbian
Rights and The American Civil Liberties Union, Interest of Amici Curiae, at
http://www.nclrights.org/pubs/nclrbrief_dvoak-amicus.doc
(last visited Jan. 22, 2002). However
there is a difference between what these cases are choosing to recognize and
claims by nonparental third parties.
Coparents or stepparents are often given standing because they are
viewed as a “psychological parent.” In
contrast, grandparents and other interested third parties such as siblings,
aunts, or uncles, cannot make the claim that this is just a new definition of
“mother” or “father” but have to make the alternative argument that they too
are irreplaceable to the child when one considers the societal changes that
affect familial roles and relationships.
See id.
[59]
Tomaine, supra note 5, at 748. “Only a limited number of state legislatures
recognize that a non-parent’s close relationship with a child warrants a grant
of visitation rights and thus enacted statutes granting limited standing to
third parties.” Id. See also Rompala, supra note
62, at 1948-1949, 1952-1955.
Historically courts have given special protection to relationships
between children and their biological parents.
This is based upon the belief that children have greater stability if
they have a continuous relationship with these parents. This goal for stability has not been
reflected in the same way when biology is not involved. For example, “grandparents, stepparents,
foster parents, and the unmarried partners of either same or opposite sex
biological parents may all be the practical, psychological, and actual parents
of a child, though courts have not consistently recognized their
relationships.” In addition, even
equitable doctrines which grant standing to psychological parents, in loco
parentis, de facto parent, and equitable parent status, have not been extended
to lesbian and gay nonbiological parents seeking visitation. See id.
See also Multari, 2001 N.Y. App Div. LEXIS 9308 (deciding former boyfriend
does not have standing to seek visitation despite his relationship with the
child for over six years). The former
boyfriend had lived with the child and mother since the child was eighteen
months old. Even the concurring opinion
by Judge Peters, who believed it to be in the child’s best interests for
petitioner to be granted visitation, recognized that his hands were tied in
that the petitioner simply did not have the prerequisite statutory
standing. See id.
[60] See The National Center for Lesbian
Rights and The American Civil Liberties Union, Interest of Amici Curiae, at http://www.nclrights.org/pubs/nclrbrief_dvoak-amicus.doc
(last visited Jan. 22, 2002). The
support of the “NCLR” and the “ACLU” indicates that this issue is gaining more
attention from powerful civil liberty advocates. The argument by these organizations is that,
“Under the long-standing doctrine of In
Loco Parentis, an adult who voluntarily assumes the responsibilities of a
parent has the same rights and obligations as a biological or adoptive
parent.” The second argument presented
is that, “In other jurisdictions, courts apply the doctrine of In Loco Parentis fairly and equally,
regardless of the parent’s sexual orientation.”
States referenced by the document include New Jersey, Wisconsin, Rhode
Island, and Missouri’s highest courts as well as intermediate appellate courts
in the states of Maryland, New Mexico and Pennsylvania. The final argument, although not on point, is
that “excluding lesbian and gay co-parents from the In Loco Parentis Doctrine would deny them and their children equal
protection under the United States and Ohio Constitutions. In the argued case, a lesbian woman
(Katharine Dvorak) was trying to preserve the relationship she had with the
child she had raised from birth with her former partner (Evangile Jones). Ms. Jones, the child’s biological mother,
refused to allow Ms. Dvorak visitation with the child despite their former
“coparent” relationship. The claim made
by Ms. Dvorak is that a person can still be a parent, even if they are not
biologically related or have commenced no legal adoption, if the behavior has
been that of a parent to the child. See id.
[61] See Rompala,
supra note 62. See,
e.g., Multari, 2001 N.Y. App Div.
LEXIS 9308. In his concurrence, Judge
Peters states his belief that children can develop relationships with adults
which are in their best interests even if those adults do not possess the legal
standing to sue for visitation. The judge contends that in such situations, it
is unfortunate to be required to make a legal distinction when the best
interests of the child would be better served by a different judgment. See id.
[62] See, e.g.,
Rompala, supra note 62.
[63]
530 U.S. 57 (2000).
[64] See, e.g., Tomaine, supra note 5, at 741.
[65] See, e.g., Morgan v. Grzesik, 732
N.Y.S.2d 773 (4th Dept. 2001).
Petitioner unsuccessfully challenged the facial constitutionality of
N.Y. DOM. REL. §72 following the Supreme Court’s decision in Troxel. See id.
[66]
WASH. REV. CODE §26.10.160(3).
[67] Troxel, 530 U.S. at 63.
[68] Id. at 63. See
also Tomaine, supra note 5, at
758-59. Three other states: Georgia,
North Dakota, and Tennessee all had similarly broad nonparental visitation
statutes that were also determined to be unconstitutional. See id.
[69] See Tomaine, supra note 5, at 731.
“Although it is an anomaly for the highest court in the land to hear a
domestic relations dispute, the Supreme Court’s ruling in Troxel v. Granville
had potential national implications.” Id.
[70]
WASH. REV. CODE §26.10.160(3).
[71] Troxel, 530 U.S. at 61. The
children’s father was the son of petitioner grandparents. See id.
[72]
The significance of this claim is twofold.
First, it has been established that it is in the child’s best interests
to continue with any stable relationship.
Second, case law regarding parental and nonparental rights has evolved
from biology being the key and sometimes only consideration, to the notion that
relationship rights should and often are determined by the level of commitment
displayed by the party. See Lehr v. Robertson, 463 U.S. 248, 260
(1982), quoting Caban v. Mohammed,
441 U.S. 380, 397 (1979) (holding a parent’s liberty interests “do not spring
full-blown from the biological connection between parent and child. They require relationships more enduring.”). Id.
[73] Troxel, 530 U.S. at 71.
[74] Id. at 63.
[75] Id. at 71. The majority found this argument to be so
significant that they quoted Granville’s attorney’s opening statement. The quote states, “Right off the bat we’d
like to say that our position is that grandparent visitation is in the best
interest of the children. It is a matter
of how much and how it is going to be structured.” Id.
[76] Id. at 72.
[77]
The Supreme Court went to great lengths to state that the statute was
unconstitutional as applied. Troxel, 530 U.S. at 73. “Because we rest our decision on the sweeping
breadth of §26.10.160(3) and the application of that broad unlimited power in
this case, we do not consider the primary constitutional question passed by the
Washington Supreme Court—whether the Due Process Clause requires that all
nonparental visitation statutes to include a showing of harm or potential harm
to the child as a condition precedent to granting visitation. We do not, and need not, define today the
precise scope of the parental due process right in the visitation
context.” Id.
[78] Troxel, 530 U.S. at 92. In his dissent, Justice Scalia states that
the court’s reliance upon substantive due process is insubstantial. “The sheer diversity of today’s opinions
persuades me that the theory of unenumerated parental rights underlying these
three cases has a small claim to stare
decisis protection. A legal
principle that can be thought to produce such diverse outcomes in the
relatively simple case before us here is not a legal principle that has induced
substantial reliance.” Id.
See also Lynne Z. Gold-Bilkin,
How a Supreme Court Decision May
Determine Whether You Can See Your Grandchildren, *2, at http://www.igrandparents.com/grandTopics/articles/Mini-Sites/GPRights/SCMayDetermine.asp
(last visited Aug. 31, 2001). “It is
important to note that this statute and this case (Troxel) has nothing to do with any case pending in any other state
or even cases pending in Washington under the newly drawn statute.” Id. This demonstrates how little precedential
significance attorneys view the Troxel decision to hold. See id.
[79] Troxel, 530 U.S. at 57. The inability to get a majority opinion
reflects the strong disagreement among the Justices about what made the statute
unconstitutional. In fact, the division
in the court was very different from the traditional alliances between the
Justices, further indicating the court’s uncertainty about how to deal with or
even feel about this family issue.
[80] Id. at 63.
[81] Id.
Justice O’Connor’s majority opinion states that the statute is
unconstitutional as applied. Justice
Souter in his concurrence believes that the statute is facially unconstitutional
because of its breadth. Justice Thomas
concurs on the basis that any statute which infringes upon the right of a
parent to control the upbringing of his or her child should be subject to the
standard of strict scrutiny. Justice
Steven’s dissenting opinion states that the Court should not have even granted
certiorari and the legislature should have simply been ordered to draft a new
statute. Justice Scalia dissents,
arguing against substantive due process and claiming that although parents have
the right to control the upbringing of their child, it is not the job of the
judicial system to determine what those rights should be. Finally, Justice Kennedy dissents believing
that the judgment should be vacated and remanded to make certain that Granville’s
(the mother’s) constitutional rights have not been infringed upon. Justice Kennedy also recognizes that there is
an important difference between the rights of a parent versus a complete
stranger and the rights of a parent versus a third party who has developed a
relationship with the child. See id.
See also Alessia Bell, Public and Private Child: Troxel v. Granville and the Constitutional
Rights of Family Members, 36 HARV. C.R.-C.L. L. REV. 225 (2001) (providing
the author’s analysis of each justice’s opinion).
[82] See supra note 13.
[83] See Tomaine, supra note 5, at 756-60.
Tennessee, Georgia, Washington, and North Dakota’s nonparental
visitation statutes were challenged in their respective state’s highest court
and held unconstitutional. See id.
[84] See
id.
[85] See
Troxel, 530 U.S. at 70-71. The plurality’s chief criticism was that the
trial judge had placed the presumption in favor of the grandparents rather than
the fit parent. In so doing, the judge
was substituting what he believed to be in the child’s best interests for the
parent’s own judgment. This flouted the
standard presumption established in Parham v. J.R., 442 U.S. 584, 603 (1979),
that a parent’s “natural bonds of affection” are to be considered over any
interest that the state may hold since it is more likely that the parent will
know, and be interested in achieving, what is in the best interests of his or
her child. See id.
[86] Troxel, 530 U.S. at 76-78. Justice
Souter in his concurrence states that the any
person at any time standing conferred by the Washington statute is
impermissibly broad. See id.
(emphasis added).
[87] See Tomaine,
supra note 5, at 768-771.
[88] See supra
notes 13 and 84 (recognizing that the Troxel
decision only told the lower courts what would be an unacceptable statutory
interpretation of a nonparental visitation statute). New York has had few decisions on this issue
following Troxel. Cases that have addressed the issue are: Hertz v. Hertz, 2002 N.Y. App. Div. LEXIS
2161 (2d Dept. 2002); Morgan v. Grzesik, 732 N.Y.S.2d 773 (4th Dept. 2001);
Chaya v. Herbert, 725 N.Y.S.2d 576 (2d Dept. 2001); In Re Multari v. Sorrell,
2001 N.Y. App. Div. LEXIS 9308 (3rd Dept. 2001); Lawrence v. Lawrence, 275
A.D.2d 985 (4th Dept. 2000); Farag v. Ghebriyal, 2001 N.Y. Misc. LEXIS 453
(Fam. Ct. Queens Co.2001); Mark N. v. Runaway Homeless Youth Shelter, 2001 N.Y.
Misc. LEXIS 331 (Fam Ct. Chautauqua Co. 2001); Allison T. v. Kimberly B., 2001
N.Y. Misc. LEXIS 339 (Fam Ct. Orange Co. 2001); Webster v. Ryan, 729 N.Y.S.2d
315 (Fam Ct. Albany Co. 2001); Davis v. Davis, 188 Misc.2d 81 (Fam Ct. Ostego
Co. 2001); Fitzpatrick v. Youngs, 717 N.Y.S.2d 503 (Fam. Ct. Jefferson Co.
2000); Smolen v. Smolen, 713 N.Y.S.2d 903 (Fam Ct. Onondaga Co. 2000).
[89]
Special proceeding or habeus corpus to obtain visitation rights in respect to
infant grandchildren, N.Y. DOM. REL. §72 (2001). “Where either or both of the
parents of a minor child, residing within this state, is or are deceased, or
where circumstances show that conditions exist which equity would see fit to
intervene, a grandparent or grandparents of such child may apply to the supreme
court by commencing a special proceeding or for a writ of habeas corpus to have
such child brought before such court, or may apply to the family court pursuant
to subdivision (b) of section six hundred fifty-one of the family court act;
and on the return thereof, the court, by order, after due notice to the parent
or any other person or party having the care, custody, and control of such
child, to be given in such manner as the court shall prescribe, may make such
directions as the best interest of the child may require, for visitation rights
for such grandparent or grandparents in respect to such child.” Id.
[90]
N.Y. DOM. REL. §71 (2001) Special
proceeding or habeas corpus to obtain visitation rights in respect to certain
infant siblings. “Where
circumstances show that conditions exist which equity would see fit to
intervene, a brother or sister or, if he or she be a minor, a proper person on
his or her behalf of a child, whether by half or whole blood, may apply to the
supreme court by commencing a special proceeding or for a writ of habeas corpus
to have such child brought before such court, or may apply to the family court
pursuant to subdivision (b) or section six hundred fifty-one of the family
court act; and on the return thereof, the court, by order, after due notice to
the parent or any other person or party having the care, custody, and control
of such child, to be given in such manner as the court shall prescribe, may
make such directions as the best interest of the child may require, for
visitation rights for such brother or sister in respect to such child.” Id.
[91] See Morgan,
732 N.Y.S. at 778. Although the court
only addresses procedure regarding grandparent visitation, the statutes for
siblings and grandparents are similar in that only after standing is granted
can the second phase or best interests inquiry be conducted to determine
visitation. Id.
[92]
Since Troxel, 530 U.S. 57, there have
been only four appellate cases and eight trial court cases (seven of which were
in family court) in New York that have dealt with this issue.
[93] See Parentsrights.com, The Coalition for the Restoration of
Parental Rights Missouri Chapter *1 at
http://www.parentsrights.com/missouri (last visited Jan. 22, 2002).
The article’s headline is “A Victory for Fit Parents Everywhere!” Id. Although true, this headline is somewhat
misleading. The Court did not determine
in Troxel whether nonparental visitation statutes are unconstitutional per se,
but rather, that the Washington’s nonparental visitation statute was
unconstitutional as applied.
[94] See supra
note 84. Justice O’Connor expresses that
the plurality agrees with Justice Kennedy that there is no reason to determine
on this day the scope of the constitutionality of any standard for awarding
visitation. See id. See also Morgan, 732 N.Y.S.2d at 778 (providing that the Troxel decision does not make New York’s
DOM. REL. §72 unconstitutional).
[95]
The Washington statute granted standing for visitation to any person at any
time so long as it is in the best interests of the child. In contrast, the New York statutes are
specifically limited to grandparents and siblings. In addition, neither group is provided with
standing simply because they are within that group. Before granting standing to proceed to the
best interests prong of the inquiry, the petitioner must first establish that
equity would allow the court to intervene, or in the case of grandparents, one
or both of the parents are deceased.
[96] Troxel, 530 U.S. at 73. The plurality in Troxel specifically limited its decision to the parties before the
court. In addition, the court recognized
that it would be difficult to make a determination about other state statutes
and cases since each case and the application of state law is so
different. See id. See also Morgan v. Grzesik, 732 N.Y.S.2d
773. The primary reason that Troxel v. Granville can be distinguished
is that the Court determined the Washington statute unconstitutional as
applied. Although there may be cases in
New York where the facts presented will also make the application of these
statutes unconstitutional, this did not occur here. See id.
[97] Troxel, 530 U.S. at 67. “Section 26.10.160(3) contains no requirement
that a court accord the parent’s decision any presumption of validity or any
weight whatsoever. Instead, the
Washington statute places the best-interest determination solely in the hands
of the judge. Should the judge disagree
with the parent’s estimation of the child’s best interests, the judge’s view
necessarily prevails. Thus in practical
effect, in the State of Washington, a court can disregard and overturn any
decision by a fit custodial parent concerning visitation whenever a third party
affected by the decision files a visitation petition, based solely on the
judge’s determination of the child’s best interests.” Id. See
also Morgan, 732 N.Y.S.2d at 778.
“…[B]y requiring petitioner to establish standing, the court gave
respondents’ decision some presumptive or ‘special’ weight, which is all that
the Troxel decision requires.” Id.
[98] Troxel, 530 U.S. at 72. “…and its [the Washington Superior Court’s]
failure to accord special weight to Granville’s already having offered
meaningful visitation to the Troxels, show that this case involves nothing more
than a simple disagreement between the Washington Superior Court and Granville
concerning her children’s best interests.”
Id. See
also Morgan, 732 N.Y.S.2d at 778
(claiming that unlike the Troxels, the petitioner was denied any visitation
with her grandchildren).
[99]
Since the issue of New York’s nonparental visitation statutes has not been
addressed by the Court of Appeals post-Troxel,
the precedential value of the Troxel
decision can only be determined by looking at the cases adjudicated in New
York’s lower courts. However, these
courts have demonstrated no uniformity in their application of Troxel.
In contrast, cases appear to come out either way depending upon the
judge’s discretion. See Morgan, 732 N.Y.S.2d at 778 (holding that the Troxel decision does not affect the
constitutionality of DOM. REL. §72 and therefore petitioner grandmother has
standing to seek and be awarded visitation).
But see Lawrence v. Lawrence,
713 N.Y.S.2d 418 (2000) (using the Troxel
decision to buttress its holding that the parent has a fundamental
constitutional right to make decisions about her children regarding issues like
custody, and therefore, the courts may not interfere with her decision absent
some extraordinary circumstance).
[100] See supra note 107.
[101]
Mediate.com, What is Mediation? *1, available at http://www.mediate.com/articles/what.cfm
(last visited Nov. 21, 2001).
[102]
Michael J. Roberts, Why Mediation Works
*2 available at http:
www.mediate.com/articles/roberts.cfm (last visited Nov. 21, 2001).
[103] Id.
[104] Id.
[105] Id.
[106] Id.
[107] Id.
[108] Id.
[109] Id. at *2-3.
[110] Id. at *3.
[111] Id.
[112] Alternative Dispute Resolution (ADR): An Overview *1 available at http://www.law.cornell.edu/topics/adr.html
(last visited Feb. 25, 2002) (providing that a big difference is arbitration
does not have discovery and the rules of evidence are simplified).
[113] Id.
at *1.
[114] Id.
“Arbitration has been used in labor, construction and securities regulation,
but is now gaining popularity in other business disputes.” Id.
[115] Id.
[116]
Michael J. Roberts, Why Mediation Works
*3 at http://
www.mediate.com/articles/roberts.cfm (last visited Nov. 21, 2001). This is not an inflated statistic. See id. The author considers factors that would make
this figure appear greater than appropriate and denounces them by stating that,
“This [the statistic] is true even where all prior attempts at settlement have
failed, where the parties are pessimistic about the prospects of settlement,
and where the parties have spent substantial amounts of time and money
preparing for a trial.” Id
[117]
Mediate.com, Benefits of Mediation
*1, at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). See
also John J. McCauley, Overcoming
Common Barriers To Settling Cases *1, at
http://www.mediate.com/articles/mcCauley.cfm (last visited Nov. 21, 2001). See
generally Roberts, supra note
124.
[118]
Nathan Davidovich, Mediation: A Process to Regain Control of Your Life
*3, at
http://www.mediate.com/articles/Davidovich.cfm
(last visited Nov. 21, 2001).
Courts are so overworked that it can take even a year to simply get a
court date and several years for litigation to be completed. In contrast, most mediations can be completed
within months or even weeks. See id. See also Mediate.com, Benefits of Mediation *1, at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). See
also John J. McCauley, Overcoming
Common Barriers To Settling Cases *1, at
http://www.mediate.com/articles/mcCauley.cfm (last visited Nov. 21, 2001). See
generally Roberts, supra note
124.
[119] See generally Mediate.com, Benefits of Mediation at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). This provides a settlement which is generally
more predictable and therefore agreeable to the parties than a potential
solution constructed by a third party.
In addition, it has resulted in a higher rate of compliance by the
parties involved. This is significant
since it provides a greater opportunity for finality which in turn decreases
cost and time dedicated to the specific dispute. In addition, the formulation of such a
creative solution allows the parties to consider legal and extralegal issues
they might not have considered if the proceeding were conducted in a different
forum. See id.
[120] Id.
*2, at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). Parties frequently litigate because they are
unable to convince the other party, outside of a courtroom, to consider their
perspective. Mediation not only allows
one part to capture the other party’s attention, it also places both parties in
a position where they are able craft their own solution to the issue. See id. See Roberts,supra note 124. See
also John J. McCauley, Overcoming
Common Barriers To Settling Cases *3, at
http://www.mediate.com/articles/mcCauley.cfm (last visited Nov. 21, 2001).
[121] E.g., Mediate.com, Benefits of Mediation *2, at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). Without the presence of a mediator parties
may never consider negotiation first for fear that it would be seen as a sign
of weakness. However, many parties would
rather the process be more conciliatory than litigation sometimes will
allow. Therefore, mediation provides the
parties with an opportunity to settle their dispute without feeling as though
they are relinquishing any bargaining power.
See id.
[122] E.g.,
id. at *2-3, at
http://www.mediate.com/articles/benefits.cfm (last visited Nov. 21, 2001). Parties can designate how the agreement
should be written so that is specifically tailored to their situation. See id.
[123] E.g., id. at *3.
[124] Id. at *4. Although it is not the mediator’s job to
provide a party with a final judgment, the party can still use this opportunity
to see how an uninterested individual views their position. In other words, after heated debate and
encouragement from friends and other biased individuals, mediation can be a
reality check for parties. This may be
important before a litigant places himself in a binding arena (i.e. a
courtroom) where there can be far-reaching implications and long term
effects. See id.
[125]
John J. McCauley, Overcoming Common
Barriers To Settling Cases *3, at
http://www.mediate.com/articles/mcCauley.cfm (last visited Nov. 21, 2001). Although the desire to inflict pain may fade,
the cost of litigation initiated at a time of anger still remains. See id.
[126]Andrew
Schepard, Reporter’s Foreword: Model Standards of Practice for Family and
Divorce Mediation *1, at
http://www.mediate .com/articles/afccstds1.cfm (last visited Feb. 28, 2002).
[127] See Schepard, supra note 20, at 407-408.
Since ADR processes are considered especially suitable for potential
litigants who have had a long standing relationship, it stands to reason that
ADR is particularly viewed as effective in the family law context. This is even more true in custody cases where
children need to have a continued relationship with both of their parents. Providing a forum for parents to work out
their differences with as little confrontation as possible allows these
relationships to continue. See id.
For example, a recent empirical study using a sample of divorcing
parents stated, “an overall consensus that the attorneys’ roles and
responsibilities in the divorce process are not translating into actual
practice.” In addition, “Many of the
parents did recognize that they were already feeling angry and hostile but 71
percent of them maintained the legal process pushed those feelings to a further
extreme.” Id.
[128] See Mediate.com, Model Standards of Practice for Family and Divorce Mediation: Overview and Definitions at
http://www.mediate .com/articles/afccstds.cfm (last visited Feb. 28, 2002).
[129] See
Schepard, supra note 135, at *4-6.
In October, 1998 the Model
Standards Symposium convened in Orlando to review the draft standards created
by the ABA Committee. Representatives of
over twenty family mediation organizations reviewed the ABA draft line by
line…. A first draft of revised Model Standards for all family mediators
regardless of professional origin resulted.
The Symposium met again on
February 26, 2000 in New Orleans. At
that time, it reviewed proposals for changes in the Draft Standards which were published in the January 2000 issue of
the Family and Conciliation and Courts
Review and posted on the Web sites of AFCC, the ABA FLS, and the ABA ADR
section. In addition, before the 2000
Meeting, the Draft Standards were
mailed to over ninety (90) local and national mediation interested groups…. In
response, the Symposium received comments and over eighty (80) proposals for
changes in the Draft Model Standards
from numerous groups and individuals that make up the diverse membership of the
family mediation community....
The Symposium completed its
work at a subsequent meeting in Chicago on August 5, 2000, which followed the
same organizational model as the February 2000 meeting…. Eighteen (18)
experienced family mediators from around the nation again participated in
lively full day discussions which reviewed the Draft Model Standards line by line.
Id.
[130] Id. at *6. “The Model Standards that follow are thus the
result of extensive and thoughtful deliberation by the family mediation
community with wide input from a variety of voices. Nonetheless, they should not be thought of as
a final product but more like a panoramic snapshot of what is important to the
family mediation community at the beginning of the new Millennium.” Id.
[131] See supra
notes 121-122 and accompanying text.
[132] For
example, family suits are often more emotional.
Rather than a dispute between business partners or even a tort case,
family disputes deal with personal relationships that have gone awry. Therefore parties have more at stake than
simply a legal claim since their family and therefore their emotions are
involved. People in family courts are
seeking more than a legal resolution, they are seeking a settlement and
sometimes even a vindication of a deeply personal and intimate claim. See Law about… Alternative Dispute Resolution (ADR):
An Overview *1 at http://www.law.cornell.edu/topics/adr.html
(last visited February 25, 2002).
“Arbitration has been used in labor, construction and securities regulation,
but is now gaining popularity in other business disputes.” Id.
[133]
When children are introduced into the dispute, new concerns such as the impact
of the litigation upon the child’s emotional well-being become an issue. See
Schepard, supra note 20, at 405. “Research suggested that divorce has not, as
had been optimistically assumed, a benefit for most children, but potentially
the beginning of a downhill spiral with serious emotional, educational, and
economic consequences…Rather than needing a stable relationship with a single
psychological parent, children generally had important emotional relationships
with both parents before divorce and benefited if such relationships continued
after divorce.” Id.
[134] Id. at 405. “Serious rethinking of the judicial role in
custody disputes began when evidence began to accumulate showing that for a
child, divorce may be the legal dissolution of a marriage, but it is certainly
not the dissolution of the importance of parent-child or parent-parent
relationships.” Id. The philosophy behind
using mediation to resolve disputes between parents also has the same
motivation for its use in third party visitation. Like custodial disputes, third parties
negotiating appropriate visitation also need to consider how to best acclimate
a child so that they are comfortable with their changing circumstances. Although this need may not be as great as the
need to maintain a relationship with a parent, the need is considerable. This is especially true when considering
that, with the changing definition of family, many of these third parties
seeking visitation are viewed as much of a parent as anyone who holds that
legal title.
[135] It
has already been established that litigation within the family does not have
positive emotional effects on the child.
In addition, litigation can have the additional negative effect of
creating further hostility between family members so that any possibility of a
win/win situation is eliminated. See Schepard, supra note 20 at 409.
“Mediation attains full resolution in one-half, and partial resolution
in two-thirds, of all custody and access disputes that enter court. In addition to resolving disputes, mediation
generally results in greater consumer satisfaction, less expense and better
parent-child and parent-parent relationships compared to adversary
litigation.” Id.
[136] See infra Section IV(B): An Explanation Supporting the Likely
Constitutionality of New York’s Two Nonparental Visitation Statutes. See
also Hertz v. Hertz, 2002 N.Y. App. Div. LEXIS 2161 (2d Dept. 2002). New York’s most recent decision on the issue
of third party visitation rights. Hertz
is the second decision post Troxel,
530 U.S. 57, to hold that New York’s nonparental visitation statutes survive a
constitutional challenge following the Troxel decision.
[137] But see infra Section III(B): Constitutional Concerns Regarding the
Expansion of Third Party Rights From Nonparental Visitation Statutes (constructing a broad statute to confer
standing to other “interested” parties has already caused constitutional
problems because it infringes upon a parent’s Fourteenth Amendment Due Process
right to control the care, custody, and management of their child).
[138]
Since the mediation is nonbinding, both parties would always retain their
opportunity to reject the mediation agreement, even after it is formed, and
proceed to court instead.
[139]
Michael Ratner, In the Aftermath of
Troxel v. Granville: Is Mediation the
Answer? 39 FAM. CT. REV. 454 (2001).
[140] Id. at 459-463. Ratner suggests that some benefits of court
ordered mediation are its
elimination of economic, psychological, and emotional burdens that the
custodial parent and child would suffer from litigation. However, one negative concern provided was
that mediation, because of its nonbinding nature, does not automatically
prevent parties from going to court to resolve their differences . Still, the author turns this negative into a
potential positive by claiming that the threat of litigation may give the parties
further incentive to come to their own negotiated resolution. See id.
[141] Id. at 461. “Florida initiated the first mediation
program in 1975, when it created the first court-connected mediation program to
resolve community disputes. Florida has
since opened its mediation doors to all types of litigated topics. Florida has authorized the referral of all
family matters to include among others, matters arising from dissolution of
marriage, paternity, child support, custodial care or access to children
adoption emancipation proceedings, and declaratory judgment actions related to
premarital, marital, or postmarital agreements.
Furthermore, rule 12.740 states, “All contested family matters and
issues may be referred to mediation.” Id.
[142] See discussion infra Section IV(C): Why
Mediation Is Especially Suited to the Family Law Context
[143]
Bargaining power can be very important in mediation in order to get both
parties to reach a settlement. For
example, although mediation is frequently advocated in the family law context,
it is often rejected in high conflict custody cases or custody cases involving
battered women. However, Andrew Schepard
advocates the use of mediation in such contexts if it is done with a proper
understanding of the issues at stake. See Schepard, supra note 20, at 419. “For
too long, the domestic violence community and the mediation and parent
education community viewed each other as adversaries. In gross terms, the domestic violence
community viewed the mediation and parent education community as promoting
parental cooperation without adequate understanding of the incidence and role
of domestic violence in divorce and custody disputes and without adequate
screening and safeguards for domestic violence victims in their programs. The mediation and parent education community,
on the other hand sometimes viewed the domestic violence community as not
recognizing the steps that were taken to protect violence and as not
recognizing the child’s need for relationships with both parents in some cases
where violence occurred.” Id.
But see Schepard, supra note 20, at 37, presenting the
alternative argument. “Some suggested,
for example, that mediation is not in the best interests of women because they
have fewer resources and are more likely to make compromises for the sake of
their children than men, and thus are easy targets for unscrupulous
manipulation.” Id. A comparison to how
third parties would feel in a mediation situation is not such a far stretch
when one considers their lack of resources.
How can a third party feel that they have anything to gain if they are
aware that their bargaining position is not just inequitable, but actually
nonexistent?
[144] See Troxel,
530 U.S. 57 . See also discussion infra Section V(b): A Look at the Future, for a further
explanation of Justice Scalia’s reasoning.
[145] See Multari v. Sorrell, 2001 N.Y. App.
Div. LEXIS 9308 (3rd Dept. 2001). The
concurring opinion states that while there is not statutory standing for the
petitoner former boyfriend, it is unfortunate that the law prohibits him from acting
in a manner that would be in the best interests of the child. See id.
[146] See supra note 48. The presence of these nonparental visitation
statutes in all fifty states demonstrates that there is congressional support
of these statutes. See id.
[147] See supra
note 5.
[148]
Although Washington’s nonparental statute, WASH. REV. CODE §26.10.160(3), was
held unconstitutionally broad, there is a movement to create more specific
statutes that still have the effect of limiting the degree of control that a
parent has over the upbringing of their child.
See Rompala, supra note 58 at 1934, 1957 (advocating
the legal recognition of coparents seeking visitation rights). See
also DeWitt Gregory, supra note 54 at 352. The mere existence of this article
demonstrates the push by legal strangers to expand the statutes to include new
groups such as: coparents, stepparents,
foster parents, grandparents, and other third party visitation. See id.
[149]
2001 N.Y. App. Div. LEXIS 9308 (3rd Dept. 2001).
[150] Id. at *10. “I cannot join in the majority’s narrow
interpretation of the Court of Appeals’ decisions in Matter of Ronald FF v.
Cindy GG 70 N.Y.2d 932, 511 and Matter of Allison D. v. Virginia M. 77 N.Y.2d 651, 569 so as to foreclose the assertion
of the doctrine of equitable estoppel by a nonbiological or nonadoptive parent
who seeks to establish standing to claim that visitation is in the best
interest of the child.” Id.
This argument flouts the traditional presumption that biology is the
determining factor when labeling a party the legal parent. See id.
[151] Id. at *17-18. “If in custody and visitation disputes,
common sense, reason and an overriding concern for the welfare of a child are
to prevail over narrow selfish proclamations of biological primacy, the
assertion of equitable estoppel by a nonbiological adoptive parent must be given credence by the
courts. Therefore while I agree with the
majority’s determination that petitioner herein lacked standing, I cannot
concur with their narrow reasoning which shrinks the prerequisite of standing
to a biological construct.” Id.
[152] There are conflicting arguments about whether
it is really in the child’s best interests to have visitation with petitioning
third parties. Although it is recognized
that children will benefit from a loving relationship with their relatives,
there is debate over whether these nonparental vistitation statutes serve this
end since they are ordering visitation for families who are willing to litigate
their differences. For this debate, see supra
note 58.
[153] See Santosky v. Kramer, 455 U.S. 745,
753 (1982). “The fundamental liberty
interest of natural parents in the care, custody and management of their child
does not evaporate simply because they have not been model parents or have lost
temporary custody of their child to the state.
Even when blood relationships are strained parents retain a vital
interest in preventing the irretrievable destruction of their family
life.” Id.
[154] See Buss, supra note 13, at 279-281. Troxel provides the Supreme Court’s first,
and perhaps only, word regarding the constitutionality of third party
visitation statutes. However, the result
reached by the Supreme Court remains unhelpful since in attempting to serve the
interests of all parties, the court reached an untenable decision. It is impossible to preserve parental rights
in the traditional fashion, recognize the interests of third parties and still
promote the best interests of the child.
To do so is to only create endless litigation with no certain standard
for the courts to follow by asking the courts to do something that the United
States Supreme Court and the legislature have been unable to do. See id.
[155]
See discussion infra Section I(A): Meyer
v. State of Nebraska and Its Progeny:
Cases that Provide Support for a Parent’s Fundamental Liberty Interest
to Control the Upbringing of Their Children.
[156] See Troxel, 530 U.S. at 91-93.
[157] Id.
at 92 (2000). Justice Scalia contends
that of the three holdings [based in substantive due process] that the Supreme
Court has used to establish a fundamental liberty interest of parents to direct
the upbringing of their children, two have been repudiated. See id. See
also Tomaine, supra note 5, at
767.
[158] See Troxel, 530 U.S. at 92.
[159] See id.
at 92. Justice Scalia acknowledges that
this is not an issue before the court in this case since it was not raised by
the parties. See id.
[160] See id. at 92. Justice Scalia recognizes that the face of
the family is changing and that this is reflected in these new nonparental
visitation statutes. Therefore he does
not believe that judges, rather than the legislature, should tread upon what he
considers to be new ground. No longer is
the family unit the same as it was when these decisions were formulated. See
id.
[161] See id. at 93. Since the roles of the
parent are no longer viewed in isolation, the legislature should be free to
promulgate statutes that represent these changes in societal structure. Justice Scalia invokes a counter-majoritarian
argument claiming that if this is a new area of law (as he believes it is) it
is best left to the elected legislature to determine how something should be
applied. If there is a choice between
the legislature creating new law or the judiciary, he would prefer to leave it
to the legislature since that is the role that they were elected to
fulfill. See id.
[162] See id.
at 93. Justice Scalia believes this is
important since the legislature, unlike the judiciary, is able to do harm in a
more limited area since they are able to correct their mistakes more quickly
and are removable by the electorate.
Therefore, if the legislature believes that they should be expanding the
spectrum of what it takes to constitute a family, they are the body of
government that should be able to do so.
See id.
[163] See supra
note 83.
[164]
With no clear rule handed down by the Supreme Court, state legislatures will
continue to promulgate statutes with the hope that they are
constitutional. Until the Supreme Court
gives a greater indication of what is acceptable, states will be forced to make
that determination on their own. See Morgan v. Grzesik, 732 N.Y.S.2d 773,
778 (4th Dept. 2001) (holding that the Troxel
decision does not affect the constitutionality of DOM. REL. §72 and therefore,
the petitioner grandmother has standing to seek and be awarded
visitation). This is an example of
allowing a third party, petitioner grandmother, visitation by distinguishing Troxel as inapplicable when considering
the facts presented. See id.