- The Washington Times - Tuesday, June 6, 2000

The Supreme Court dealt a blow yesterday to grandparents seeking court-ordered visits against a parent's wishes but fell one vote short of declaring that fit parents have a right to refuse anyone access to their child.

By a 6-3 vote, the court invalidated "a breathtakingly broad" Washington state law that said "any person may petition the court for visitation rights at any time," thus nullifying an order that allowed Jenifer and Gary Troxel of Anacortes, Wash., extensive visits with granddaughters Natalie and Isabelle after their father died.

"The visitation order in this case was an unconstitutional infringement on [the mother's] fundamental right to make decisions concerning the care, custody, and control of her two daughters," said the main opinion, written by Justice Sandra Day O'Connor.

But she was joined in that view only by Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer. Justices Clarence Thomas and David H. Souter agreed the law is unconstitutional, but each cited other reasons, depriving the opinion of the majority that would impact grandparent visitation in other states.

While it stopped short of a parental veto, it conferred no special status for grandparents' relationships with grandchildren.

Only Alaska and Connecticut use similar "any person" language, according to the brief filed by the mother, Tommie Granville Wynn. She and Kelly Wynn had one child since their marriage. Her husband adopted Natalie, now 10, and Isabelle, 8, whose father, Brad Troxel, committed suicide in 1993.

Seattle lawyer Mark D. Olson said last evening the Troxels now will ask the mother for "a few hours one afternoon a month" to visit their grandchildren. Mrs. Wynn's lawyer, Catherine Smith, acknowledged the possibility for visits, after more than a year without any, but objected to raising the issue in the press.

"My clients want to make a decision privately," she said. "Grandparents need to decide whether they want to be litigants or grandparents."

Many interest groups entered the fray with concerns far broader than those dividing the Troxels and the Wynns. Most said they found solace in the narrowness of yesterday's ruling.

"This was never a case about whether grandparents should play an important role in the lives of their grandchildren. Clearly they do," said Jay Sekulow of the American Center for Law and Justice, which filed a friend-of-the-court brief supporting the parents.

"The court sent a strong signal today in defense of the family by safeguarding the rights of parents," he said.

"Grandparent visitation statutes in other states can remain, I think, and are not invalidated by this decision as long as they are applied in a manner that gives due weight and consideration to the parents, and that will vary case by case," said Rochelle Bobroff, a lawyer for the nation's largest organization of retired or aging citizens.

"We are actually quite pleased with the court's decision," said Miss Bobroff of the AARP Foundation, representing the AARP Grandparent Information Center and Generations United.

Justice John Paul Stevens said the court never should have reviewed such an unusual state law, and Justices Antonin Scalia and Anthony M. Kennedy debated the judicial approach to the constitutional issue, and every justice but Justice Scalia said parental rights have constitutional support.

"If we embrace this unenumerated [parental] right, I think it is obvious whether we affirm or reverse the judgment here … that we will be ushering in a new regime of judicially prescribed and federally prescribed, family law," Justice Scalia wrote.

The six-way split sparked unusually sharp retorts by Justice O'Connor from the bench and in her written opinion.

"Unfortunately, we were no more able to reach a resolution than the parties to the case," she said ruefully while announcing the ruling to the crowded court.

Her opinion suggested that other justices join now to make it a majority in time to spare Mrs. Wynn the emotional and financial costs of defending her parental prerogatives in court.

Mrs. Wynn's costs already top $100,000, Miss Smith said yesterday in a telephone interview, adding that the Wynn family is "glad it's going to be over with" and looks forward to privacy for future decisions out of court.

Mr. Olson said he was pleased that in affirming the Washington state court decision the justices did not adopt its requirement that a grandparent seeking visits show that a child would suffer harm if visits were not allowed.

Miss Bobroff of the AARP also was pleased the court specifically backed away from holding at this time that there had to proof of harm if visitation weren't allowed, which would have set a tough new standard nationwide.

"The court said these are complex family matters and we are not going to give a rule that applies in every circumstance and that is AARP's position also," Miss Bobroff said.

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