- The Washington Times - Tuesday, June 13, 2000

The U.S. Supreme Court last week flashed a yellow constitutional light on patronizing legislative second-guessing of customary parental child-rearing prerogatives. In Troxel vs. Granville (June 5, 2000), the high court invalidated a Washington state law that empowered state courts to order child visitation rights over the objections of custodial parents to "any person" whenever the judge concluded that "visitation may serve the best interests of the child."

Under that elastic standard, Mary Poppins would probably be entitled to visit every child at any time, in any place, and during any season. And far more problematic visitors moved by far less noble motives could regularly bedevil unalarming and non-dysfunctional parental-child relations. Child abuse and neglect are genuine worries, but what Washington state aimed at was much more intoxicated by the delusion of child-rearing omniscience.

Whatever the ordinary deficiencies in parental wisdom and practice, permitting judges to intervene after exposure to tendentious courtroom evidence by imputing a superior knowledge of the best interests of the child is a remedy vastly worse than the disease.

The facts of Troxel are instructive. Isabelle and Natalie were born out of wedlock to mother Tommie Granville and father Brad Troxel. The parents separated in 1991, and Brad committed suicide two years later. The two daughters had lived with Tommie. After the suicide, she choose to curtail previous weekend visitations with the father's grandparents to one short visit per month. Tommie also explored marriage, which was consummated with Kelly Wynn during the course of customary lead-footed visitation litigation. Mr. Wynn soon formally adopted the daughters.

Brad's grandparents were dismayed over their receding participation in the upbringing of Isabelle and Natalie. Thus, they petitioned a judge to order two weekends of overnight visitation per month and two weeks of visitation each summer. They alleged neither child abuse nor neglect nor unfit parenting, but simply that the daughters would be enriched and better fulfilled by the requested extended visitations.

That self-interested grandparent appraisal was not shared by the mother, armed with vastly more knowledge and natural love for Isabelle and Natalie. She did not seek isolation from the grandparents, but believed one day of visitation per month with no overnight stay would be best.

Under the "best interests of the child" standard scribbled into Washington state law, however, that was insufficient to foil judicial meddling. The judge, with no special child-rearing credentials, guessed that visitations to the grandparents of one weekend per month, one summer weekend, and four hours on their respective birthdays would be superior to the mother's more parsimonious plan. The reasoning behind that speculation was shockingly thin: "[T]he [grandparents] can provide opportunities for the children in the areas of cousins and music … The children would be benefitted from spending quality time with the [grandparents], provided that the time is balanced with time with … the nuclear family."

No parent, however, could withstand visitation privileges if all that is necessary for victory is the potential for expanded educational or social experiences. Who is a master of all trades? Who enjoys unlimited time and energy? No one, not even children. Thus, time devoted to music or fun and games with cousins may mean less time for painting, drama, reading or physical activity. Compromise with perfection is the staple of parenthood, and experience teaches that parents ordinarily strike the best compromise among endless choices. And the vexing decision frequently pivots on inarticulate psychological or emotional insights beyond the ken of non-parents.

In Troxel, the Supreme Court did not abandon children to heartless whims of parents. It did not arm them with an impregnable shield against state intrusions when detectable harm to children is afoot. It cautiously confined its ruling to blocking state laws equating parents with strangers when child visitation is at stake. States retain ample power to remedy serious malparenting.

Children have long been the playthings of visionaries, and the Washington visitation statute was a worthy descendent.

In ancient Sparta, males at age 7 were marched into barracks and their education and training entrusted to official guardians in hopes of forging ideal citizens. Cooperative child-raising experiments have featured in utopian literature and exotic communities under a "best interests of the child" banner.

Thousands of years of experience, reason and intuition, nevertheless, teach that a strong (but not absolute) enshrinement of parental rights best advances that lofty aspiration. A delicately balanced combination of love, discipline, psychological and emotional insights, and instruction by example makes up the cradle of a healthy child. Each is unique, however, and each judicious mixture of child-rearing elements likewise singular. Any parent can testify that to treat children as fungible is to court disaster.

Even with the most detailed knowledge of the most intimate and subterranean aspects of a child's personality, however, parents are admittedly regularly baffled in their nurturing and instructional labors. But to paraphrase Winston Churchill on democracy, strong parental prerogatives make the worst way of raising children, except for all the alternatives that have been conceived or attempted.



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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