- The Washington Times - Thursday, January 13, 2000

Supreme Court justices agonized yesterday over a grandmother's "special relationship" with two girls that intrudes on parental rights and hinted they may lay to rest a challenged visitation law without settling emotional family issues.
"This is a breathtakingly broad provision, is it not?" Justice Sandra Day O'Connor demanded of a stammering and hesitant Mark D. Olson, the Seattle lawyer fighting to regain Jenifer and Gary Troxel's access to granddaughters Natalie and Isabelle. The father of the girls, Brad Troxel, shot himself in 1993.
Justice David H. Souter, the court's only non-parent, blasted the provision in the Washington law allowing a claim for visitation by "any person walking in off the street, with no relationship to the child."
The girls' mother, Tommie Granville, has since married Kelly Wynn and given birth to a child. Her husband has adopted Natalie, now 10, and Isabelle, 8.
The parents' attorney, Catherine W. Smith of Seattle, said Mrs. Granville allowed visitation until the grandparents sought to expand to two days every other weekend from their existing 26-hour period once a month plus a week in the summer and birthday visits. Mr. Troxel is an original member of the Fleetwoods, which made hits of "Come Softly to Me" and "Mr. Blue."
Lawyers for both sides and interest groups filing friend-of-the-court briefs said a declaration of rights favoring either parent or grandparent would resonate among 60 million grandparents nationwide since virtually every state has some grandparent-visitation law on the books. Only four Washington, California, Connecticut and Kentucky include unrelated persons.
Other justices of whom six are grandparents speculated that the law declared unconstitutional by the Washington Supreme Court is beyond redemption because it permits any person to seek visitation, and forces parents to defend the case.
"If the Supreme Court upholds the Washington state law, it would mean that almost anyone who has been part of your child's life could go to court for visitation rights, including a nanny, former live-in boyfriend, or next-door neighbor," said Janet Parshall, spokeswoman for the Family Research Council, which insisted parents have the last word on who may visit their children.
"This case represents the constitutionally protected rights of parents who must be able to rear their children without state interference. At stake in this case is the preservation of the family unit," said Jay Sekulow, chief counsel of the American Center for Law and Justice.
AARP, formerly the American Association of Retired Persons, has waged a major publicity campaign to support its brief asking the court to rule that courts may decide access to grandparents is in "the child's best interest."
Two other grandparent support groups and a major coalition of state and local governments also sided with the grandparents.
"It's about Big Brother vs. parents," said Michael Adams, associate director of the American Civil Liberties Union Lesbian and Gay Rights Project, in a somewhat unusual stand for a group fighting to open as widely as possible the right to seek visitation and custody.
Mr. Olson said the law should balance the interests of parent and grandparent in the "best interest of the child," the standard used when parents who split up fight for visitation or custody.
"The child does not belong to the court… . [It] belongs to the parents," Justice Antonin Scalia said.
"The child's welfare is the state's responsibility," Mr. Olson responded.
"What's special in our case is that the father is dead and for two years they stayed with their grandfather," Mr. Olson told Justice Stephen G. Breyer, who demanded he say directly what was special about his case without citing legalisms.
"The memory of the children's father will be preserved by the grandparents … to know where they came from. That is very significant," Mr. Olson added.
Justice Breyer said the existing law would permit "an accordion player [to] come and say I want to visit this child once a year."
"No parent should ever be forced into court over such a dispute," Miss Smith said.
"In our society, we have parents who make decisions about who their children are going to see, how much candy they're going to eat, how much television they are going to see," Miss Smith said.
She told the justices that boyfriends and others had no right in the matter and there might not be any right to visit for a grandmother whose daughter and child lived in the grandmother's home for 10 years, with the grandmother caring for the child while the mother worked.
"Parents may live with other individuals. That does not give a parental relationship to those individuals when there is no evidence of harm," she said.
"No evidence of harm except the grandmother won't get to see the child she's been living with for the last 10 years," Justice John Paul Stevens said with a sarcasm not customary for him.
Justice Souter and Chief Justice William H. Rehnquist disagreed on whether the Troxels must show that every provision of the law is constitutional to get the high court to reinstate it and reverse the state Supreme Court, but both jurists agreed Mr. Olson had a tremendous burden to win the case.

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