Troxel et vir. v. Granville

Note: This decision has the potential to force sweeping changed in the country's CPS agencies. Until my wife, the lawyer, has time to write a worthy essay on this decision this temporary page written by her husband, the engineer, will have to suffice.

Child Protective Service agencies (CPS) such as New Hampshire's Division of Children, Youth, and Families (DCYF) often remove children from a family to protect the children from abuse and neglect. How often abuse or neglect has actually occurred is addressed in many other pages at this site and elsewhere, it is not part of this page. Affected families range from the traditional working father and stay-at-home mother to single parent with live in lover. Frequently only one parent has been found "unfit". Under current law in New Hampshire, there need not be a finding that either parent is unfit, only that the child has been abused or neglected.

When the parents are living apart, CPS will often place a child in a foster facility instead of with the fit parent, especially if they claim the other's living conditions are inadequate. Foster placements happens surprisingly frequently, much to the dismay of the fit parent. Despite case law that supports fit parents' rights to raise their children as they see fit, parents are forced to go through extended litigation that often fails to release their children from foster care.

On 2000 June 5, the Supreme Court of the United States released a ruling in a case that involved no allegations of abuse or neglect, but of the visitation rights grandparents had to the children of their deceased son. The children live with their mother who wanted the children to spend less time with the grandparents than they had been. The grandparents sued to maintain the schedule in Washington court under Section 26.10.160(3) of the Revised Code of Washington which permits:

"[a]ny person" to petition a superior court for visitation rights "at any time," and authorizes that court to grant such visitation rights whenever "visitation may serve the best interest of the child."

The news media reported on the ruling as a grandparents' rights issue, but it actually is a parental rights ruling, and makes it completely clear that a fit parent has the right to raise his or her children without the influence of other parties.

Consider these excerpts:

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.

"In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the `liberty' specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one's children"

In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters.

The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight.

As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made.

There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. ... In this case, the litigation costs incurred by Granville on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution.

Except for the Washington-specific comments, all this directly applies to any family with one or two fit parents. It clearly states that fit parents can make their own childrearing decisions. Therefore, neither social workers nor judges have the right to place children in foster care, mandate psychological reviews, or require parents or children meet with social workers.

For CPS to continue as they have in the past, they will have to charge both parents with abuse or neglect and win the case. It will be interesting to watch for changes in the number of abuse and neglect trials and the number of children removed from families.

While the decision was not unanimous, the dissents are remarkably mild. For example, Justice Scalia starts off with:

In my view, a right of parents to direct the upbringing of their children is among the "unalienable Rights" with which the Declaration of Independence proclaims "all Men ... are endowed by their Creator." And in my view that right is also among the "othe[r] [rights] retained by the people" which the Ninth Amendment says the Constitution's enumeration of rights "shall not be construed to deny or disparage."

Hardly the way a strong dissent normally begins!

Soon after the decision, my wife cited this decision to the NH Superior court and essentially told the judge he had no choice but to return children to her (non-offending) client. On June 22 another lawyer used the decision to argue for the rights of a fit parent in a NH Supreme Court case.

Please let us know about cases where Troxel v. Granville has been used to win and where it has been used but rejected.

Contact Ric Werme or return to his home page.

Last updated 2000 June 22.