September 28, 2012
The areas of law that these cases encompass have included bankruptcy law, civil rights, criminal law, and privacy law.
Of course, we’ll likely see many other areas of law covered by Supreme Court cases as the current term progresses.
One area, though, that we probably won’t see during this nor another term in the near future is family law.
The reasons for this are simple.
First, family law is largely a creature of state law, and thus rarely implicates the federal law required to gain the U.S. Supreme Court’s attention.
Second, since family law cases are rarely litigated (thankfully), appeals are also quite uncommon.
Lastly, the Supreme Court – like any other court – generally loathes hearing family law cases.
As such, it’s usually a pretty big deal whenever the Court decides to hear a family law matter.
Those of you who’ve had the unpleasant experience of litigating a contested grandparent visitation case know that Troxel is the preeminent authority on such matters.
Grandparent visitation refers to an action wherein visitation with a child is sought by one or more of the child’s grandparents.
Troxel began with a custody dispute in Washington State between a mother of a child born out of wedlock and the child’s paternal grandparents.
After the trial court awarded more visitation time to the grandparents than the mother wanted, the mother appealed.
The Washington appeals court and Supreme Court both reversed, finding that the statute that allowed nonparents to petition for visitation rights “impermissibly interfered with parents’ fundamental interest in care, custody and companionship of their children and, thus, were unconstitutional.”
As stated above, the U.S. Supreme Court agreed to hear the case, and affirmed the Washington high court.
However, the SCOTUS opinion was one of the most fractured in recent history – likely a reflection of the heavily divergent views on the subject.
The four-Justice plurality opinion was penned by Justice O’Connor, and was joined by Chief Justice Rehnquist and Justices Ginsburg, and Breyer.
This plurality opinion, usually cited as the controlling one, held that the Washington statute was unconstitutional as applied to Granville’s case, since it violated “her due process right to make decisions concerning the care, custody, and control of her daughters.”
Justices Souter and Thomas also concurred in the judgment, but for different reasons.
Likewise, Stevens, Scalia, and Kennedy all dissented separately with distinct reasoning.
Nevertheless, in spite of the split nature of the Troxel decision, it sent shockwaves through state legislatures across the country, which scrambled to tailor their third-party visitation laws to be compliant with Troxel.
Specifically, these laws now must give “special weight” to a fit parent’s decision to deny non-parent visitation.
As I discussed in a post last November, there’s been an almost even split between states as to what this “special weight” means.
One side maintains that “special weight” gives a parent veto power to deny grandparent visitation unless the parent is demonstrated to be unfit.
The other side holds that “special weight” means a rebuttable presumption that can be overcome simply by showing that grandparent visitation would be in the best interests of the child.
Thus, we can truly appreciate the significance of the Court’s agreeing to hear Troxel.
Furthermore, we know that we shouldn’t hold our breath waiting for another landmark family law ruling from the Supreme Court.