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Burden of Proof

Grandparents' Visitation Rights Before U.S. Supreme Court

Aired January 12, 2000 - 12:30 p.m. ET



TOMMIE WYNN, MOTHER: Most of us realize that if you want to have a relationship with somebody, you don't take them to court.

JENNIFER TROXEL, GRANDMOTHER: We're not only doing this for grandparents, we're doing this for children's rights, too. I think children have a right to see their grandparents and know about their family.

CATHERINE SMITH, MOTHER'S ATTORNEY: The states should not interfere in these sorts of family decisions, unless there is some indication that children are being placed at risk.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: An explosive family issue is heard by the highest court in the land. Should grandparents have a right to see their grandchildren, even when the parents object?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in Atlanta today.

The United States Supreme Court has taken an unusual step into the arena of family law.

ROGER COSSACK, CO-HOST: The justices are hearing arguments today in the case of Troxel versus Granville from the State of Washington, but a ruling in the case could affect grandparents and parents nationwide. All 50 states have laws allowing grandparents to seek court-ordered visitation after the parents have divorced.

VAN SUSTEREN: Joining us today from Seattle, Washington, is Lisa Stone of the Northwest Women's Law Center. And in Detroit, Michigan, Richard Victor of Grandparents Rights Organization.

COSSACK: And here in Washington, Barbara Zimmerman (ph), Michael Adams of the American Civil Liberties Union, and Tim Teepell (ph). And in the back, Paige Trivett (ph) and Sadia Carone (ph). And also joining us from the U.S. Supreme Court is CNN senior correspondent Charles Bierbauer.

Charles, tell us the facts of this case that was argued before the Supreme Court?

CHARLES BIERBAUER, CNN SENIOR CORRESPONDENT: Well, the facts are, it's a complicated family relationship. Basically, it pits the grandparents of two girls, who are now 8 and 10 years old, against their mother; and the grandparents, in this case, parents of the girl's father, now deceased, he committed suicide seven years ago. And at that juncture, the relationship certainly starts to fall apart, although in fact, the mother and father, who never married, had separated prior to that. You kind of get the sense that this is not a simple relationship, and it is one that has not been solved by sitting down across the kitchen table to decide how much time the grandparents could spend together with these two grandchildren of theirs.

So here it is in front of the Supreme Court after having already gone to the Washington State Supreme Court, which struck down a law, a Washington State law which permits essentially anyone at any time to petition for visitation rights; that the Washington State court found was unconstitutional -- Roger.

VAN SUSTEREN: Charles, why did the relationship between the grandparents and the mother sour?

BIERBAUER: Why did it sour? Well, several thing, as I indicated, the mother and father never married. Brad Troxel separated from the mother, Tommy Granville as she was known then, Tommy Wynn as she is known now by her now married name. The second child was born. For a while, they shared parenting, and then Brad Troxel committed suicide, and things pretty much went downhill from there.

COSSACK: Charles, describe the argument that took place in court today. Who of the justices was most active and where do the arguments seem to be going?

BIERBAUER: Well, very active arguments, and largely concerned about the breadth of the Washington State law. As I suggested, it said anyone at any time. Every state, you have indicated, has some kind of visitation law, which would permit either grandparents, in some cases extended family, in this case just about anyone, to petition for visitation. And that troubled the justices here.

Justice Sandra Day O'Connor was particularly concerned about the breadth of it. The chief justice, Justice Rehnquist, says: To what extent can a court intervene in the case of parents who are not harming the child? In addition to the question of the best interests of the child, there is the issue of: Does there have to be harm involved, as some state statutes require, before someone can petition for this kind of right -- Roger.

VAN SUSTEREN: Charles, there seems to be two directions that this case could take with the United States Supreme Court, the first being to what extent that the United States Supreme Court will tread on the rights of states to write their own laws; the second is to what extent that the United States Supreme Court will let a state interfere with the rights of parents to raise their children. Which was the focus before the court today? Could you tell from the questions by the justices?

BIERBAUER: I think you have to say that the stronger argument rests here with the rights of the parents, as opposed to the rights of the grandparents. Repeatedly, there were assertions that there was no harm involved. There was no absolute ban on visitations, it was a question of how much visitation should be permitted to grandparents? Should it be once a month, as the trial court originally ordered? Should it be every other weekend, as the grandparents petitioned, and a week in the summer, and birthdays. What they could not agree on were the parameters of these visits. And the suggestion certainly from several of the justices was: How do you take this kind of right to decide what's good for the children away from the parents?

Justice Scalia said: Look, if the parents say, I don't want the kids to have candy, they don't candy, a parental decision.

COSSACK: Richard Victor, is this -- the case that is being argued before the United States Supreme Court today -- does this represent the Seattle -- or the State of Washington's grandparents' visitation rights or is this a much broader law?

RICHARD VICTOR, GRANDPARENTS RIGHTS ORGANIZATION: No, as a matter of fact, the grandparent visitation law in the State of Washington is not being challenged. The problem here is because the law in the State of Washington only protects grandparents and grandchildren if there has been a divorce or a legal separation. Because the children were born out-of-wedlock, the law in the state does not protect that relationship.

So the grandparents had to go to a statute, which is seven pages long, and they found one sentence that said "any person at any time." In fact, that same language had been in the original grandparent law in the State of Washington and it was repealed in 1996.

So this law may be over broad, but we're hoping they don't throw away the baby with the bath water.

VAN SUSTEREN: You know, Richard, before looking at the issue of the breadth of the statute. Let me read from you a portion of the court's actual order. The court said, among other things, that it "ordered the mother of the child not to speak with the children about their father's suicide death until she and the grandparents had agreed on a joint explanation." In essence, it's a trial court in the State of Washington gagging the mother. What about that?

VICTOR: Well, I think that the court may have overstepped the rights that the parent normally would have. Now, I've been doing this for 25 years, and in every situation I sit down and I counsel the grandparents that there are roles for grandparents, there are roles for parents. Parents have a fundamental right to raise their children. It's just not absolute. Grandparents have a very important role, and that role is to provide unconditional love, part of the heritage that they would otherwise be able to offer to children. And the grandparents should not usurp the authority of the parents. So I have had orders entered where a grandparent could not take a child to fast food restaurant, let's say, during their visitation because that was the parent's right to make the decision.

VAN SUSTEREN: Michael, what about that? What about that aspect of them really gagging the mother and what she can say to her kids?

MICHAEL ADAMS, ACLU: Well, I think that's extremely troubling, and what I think we have to focus on here is that, sure, grandparents are important in children's lives, but so are teachers, so are neighbors, so are aunts, so are uncles, somebody in the end has to make the decision about what kind of relationship a child is going to have different with adults, and we believe with the ACLU, that in most cases that needs to be the parents.

COSSACK: All right, let's take break. When we come back, a Supreme Court ruling in this case could affect the visitation rights of more than just grandparents, but could it also redefine the court's description of a family? Stay with us.


Chief Justice Rehnquist and Justice Stevens, O'Connor, Scalia, Kennedy and Ginsburg are all grandparents.



VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to and click your way to the BURDEN OF PROOF link. We now provide a live video feed, Monday through Friday at 12:30 p.m. Eastern Time. And if you miss that live show, the program is available on the site at any time via Video On-Demand.


JOHN MAYOUE, FAMILY LAW ATTORNEY: It's very unusual. The Supreme Court historically has stayed out of family law matters, so no one really knows, but they have the opportunity to define the family, so to speak, to talk about what kind of family we want raising our children in this country.


COSSACK: Today in Washington, the U.S. Supreme Court is hearing arguments surrounding visitation rights for grandparents, but many special interest groups outside of grandparents rights' causes are weighing in on this issue.

Well, Lisa, you know, historically, I suppose, you can argue that the Supreme Court does stay out of these family issues, but in fact the Supreme Court has in the past decided that you could not require a family to send their child to public school, and they've also penalized families for not giving proper medical care to their children. So, in fact there is precedent for the Supreme Court to be involved in these kinds of issues, isn't that true?

LISA STONE, NORTHWEST WOMEN'S LAW CENTER: That's correct. In fact, they've also found -- and this goes to the issue of grandparents -- that a situation where you have a grandparent who's actually raising the children, that is, who is acting in a parental role, can be recognized as a parent and get the parental rights that go along with parenting. The difference, from the position of the Northwest Women's Law Center and many women's rights groups, is that you're talking about someone who is a de facto or an actual parent, even if the law doesn't now recognize them as a parent. Those people are distinguished from folks like the Troxels, who are -- have intermittent, though warm and loving, relationships with the kids.

VAN SUSTEREN: Lisa, do you know why it is that the mother of the child and the grandparents sort of got into this dispute over custody? Was one side being more obstreperous or were the grandparents want more time, or -- what was the problem?

STONE: Well, as we understand it, when -- after Mr. Troxel committed suicide, the mother agreed that the grandparents could have one weekend a month with the kids, which actually is a pretty generous offer in light of many people in this modern age in their relationship with their grandparents. The grandparents weren't satisfied with that and wanted every other weekend, their own birthdays, two weeks in the summer and additional holidays. Once they asked for that, other relatives on that side of the family sort of clamoring in a me-too sort of way.

So, the mother was faced with these repeated demands by not only by the grandparents but everyone else on that side of the family and decided that she wanted to stick with one weekend a month. She thought that was fair and that that would allow here children to have a meaningful relationship with their grandparents while still preserving her right to make decisions about the girls' upbringing and decisions about how to talk about their father and his death and the other sort of normal parental decisions one makes.

COSSACK: Michael, you know, there's an old saying among lawyers that bad facts make bad law, and perhaps these are tough facts, but, in fact, would the ACLU stand for a position that there should be -- set in granite that there could be no interference with a parental right to raise their children, and, in fact, that that is a constitutionally-guaranteed issue?

ADAMS: Well, it's certainly not our position that there's an absolute rule that should applies in every circumstances. It's our position that in most circumstances we have to respect the rights of parents to make decisions about how to raise their children. But in the brief that we filed with the Supreme Court in this case, we also indicated that if there was a law that said that if a grandparent or somebody else comes into court and can prove to the court that a child was going to be substantially harmed if visitation is cut off, under those circumstances it's right for the child, which is the most important thing, that this visitation occur.

COSSACK: Best interest of the child? ADAMS: No, not best interest of the child, which is too amorphous and too flexible. A harm standard. You have to show, and it's not just speculative, you have to show evidence that the child will be harmed in some demonstrable, concrete way if this visitation is shut off, and that's our position in the case. Aside from that kind of a showing, it needs to be up to the parent; it should not be up to the government.

VAN SUSTEREN: Lisa, the Constitution has lots of rights, and the Supreme Court has found rights that aren't specifically written into the Constitution, including the right of privacy. Is it your position that there is some sort of constitutional right that the parents have vis-a-vis the children that could exclude the grandparents or anyone else?

STONE: Absolutely. And we would agree with Michael's analysis. We do think if there is harm to the children then there is -- that is an opportunity for grandparents or others to have a meaningful relationship with the child to step in.

VAN SUSTEREN: Where do you -- where do you find that constitutional right? Where does -- from what part of the Constitution is that derived?

STONE: Well, there -- it adheres partly in the right to make decisions about intimate relationships parental. So, it comes from some of the same places as the privacy rights. In fact, just last term, the court decided a case out of Mississippi where a mother whose parental rights were being terminated had a constitutional right to have her defense against termination be paid for. An indigent mother was able to have her defense against termination paid for because the right to parent is so central and so firmly rooted in the Constitution that the state could not take away her rights to parent without some representation.

VAN SUSTEREN: Richard, is that...

COSSACK: Richard, let me ask you a question. Michael says that the test should be whether or not there's harm to the children. You say it should be the best interests of the children. Why can't you go along with his definition?

VICTOR: First of all, there's only one state in the United States, Georgia, that agrees with his definition of "harm." It's almost impossible to prove that. Forty-nine states say that a court, if there's a request made, has a right to take a look at whether or not it's in the child's best interests. We have to take a look at the reality of what's going on and use some common sense here.

First of all, Greta's right. There's nothing in the United States Constitution that deals with families or parents' rights to make decisions. We have some interpretations from some cases. However, let's use common sense. Thirty years ago, the traditional American family was mom and dad living in the same household with children. Today, because of death, remarriage, divorces, single family households, children born out-of-wedlock, we have a completely- different traditional American family, and we have to protect children who may no longer be related to the same people as their parents.

Example: When there's a divorce, in every divorce case, the mother who gets custody or the father who gets custody may -- is no longer related to her former mother-in-law or father-in-law, but that is still the family to the child; it's their grandparents. And what happens when you didn't get along with your ex-daughter-in-law, she gets custody, your son doesn't visit or he's deceased or he's out of state, and you cannot see the grandchild. The grandchildren is being denied and deprived an inherent right to associate with their family.

VAN SUSTEREN: All right, we need to take a break.

STONE: Well, Richard, your premise is right, but I think your conclusion is wrong.

VAN SUSTEREN: Lisa, can you hold that thought? Can you hold that thought for one second? We need to take a break.

We'll be right back. Stay with us.


Q: Which Supreme Court Justice was raised by his grandparents?

A: Justice Clarence Thomas.



VAN SUSTEREN: Welcome back to BURDEN OF PROOF. We're going to go back to the United States Supreme Court, to our Charles Bierbauer.

Charles, do we know if any of the justices are grandparents themselves?

BIERBAUER: Oh, indeed, we know that six of the nine justices are grandparents. Although none of them actually brought that up, you could clearly tell that they had some concerns that a grandparent might have.

But when the attorney for Tommie Granville -- Tommie Wynn was asked afterwards whether she thought that would be a factor, Catherine Smith, the attorney, said: Those grandparents were parents first.

VAN SUSTEREN: Good point.

Let's go back Lisa.

Lisa, before we went to break, I cut you off. You wanted to respond to Richard.

STONE: Well, that's right. Richard's premise is that our society has change a great deal, and of course he's correct. The legal structure today has not, in fact, kept up with the social structures. We now have serial marriages, we have lesbian and gay families, we have all sorts of configurations that we didn't have at the time most family laws were passed initially.

The problem with Richard's taking it -- his premise to its conclusion is he focuses solely on grandparents and not on the question of who's actually taking care of those kids. If you open it up to everyone who has a relationship with the child, then you're conceivably having a situation where the poor child is visiting with someone different every other day. If you make it just grandparents, you're ignoring the reality of those children's lives and with whom they have special and careful relationships.

COSSACK: Michael, I know you wanted to respond, too. Also, I'll add that Clarence Thomas was raised by his grandparents, so there may be an added issue there. Go ahead.

ADAMS: Well, I wanted to respond to a point Richard made, although I think he makes a good point in talking about children's rights. That's extremely important here. But I think that what he does not address is somebody needs to make decisions about what's going to happen in a children's life. And, really, the central question in this case is: Who is going to make those decisions? Is it going to be a parent when nobody questions that this is a good parent, or is it going to be the court? And this is where our fundamental disagreement with Richard is. We think it needs to be -- when you have a fit parent, it needs to be the parent making the decisions. And we hope and believe that the parent will, in most circumstances, decide what's best for the child.

COSSACK: Richard, go ahead and respond.

VAN SUSTEREN: Richard, you were correct...

VICTOR: Can I respond?

VAN SUSTEREN: Richard, can I just ask you a quick question on this right to privacy?


VAN SUSTEREN: You correctly quoted me in saying that there is no specific right in the Constitution saying parents have a right to privacy. However, the Supreme Court has read that there is a right to privacy. Would it not be stepping into that right of privacy to tell parents what they can do and not do with their children?

VICTOR: Well, as I said, it's a fundamental right, but it's not absolute. The state has longstanding rules with respect to jurisprudence in this country as to act as the parents patriai to come in to speak for the child.

And this entire movement, to be very honest with you, when we started it, may have benefited grandparents to some extent, but it really was a movement that was begun for grandchildren who were otherwise being cut off from relationships with their grandparents following death or divorce, and a former son-in-law didn't get along with his ex-mother-in-law. The question becomes not will grandparents automatically come in and usurp the authority of parents and get visitation, but will we block the road to the courthouse for them to at least have the opportunity to ask? They still have the very heavy burden to show it's in the child's best interests.

Many states have rules to say if they file those actions and they are so far off that they're harassing, that they'll be assessed full attorney fees and costs for doing so. But why should we deny the child to have an opportunity and a right to visit with their grandparents. And I just think it's wrong.

COSSACK: But, Richard, what about Michael's argument that the buck has to stop somewhere, if you will, and someone has to speak for the child in raising the child, and that the decision has to be made, most likely, by the parents?

VICTOR: In most instances, parents will make those decisions and they make good decisions. But in every situation where there's been a death or a divorce you really have a dysfunctional family, and that child is not benefiting from both parents' decisions in most instances. Grandparents have a...

STONE: That doesn't make it dysfunctional.

VICTOR: Grandparents should have a right to come in and ask to continue a relationship, that has otherwise been amputated, in order to protect the child. Now if a judge or a court or a mediator thinks it's not in the child's best interest, they'll say so.

But I'm going to tell you what's really happened. Through the use of these laws, we have forced people to get to the table to talk, and we have then been able to reunite families that have been otherwise in dysfunction because they have had a complete breakdown in communication. To throw out these laws in all 50 states would be to actually amputate millions of grandchildren that have been reunited in the last quarter of a century because they'll rule all the laws unconstitutional. Then what protection will there be for those children?

VAN SUSTEREN: And, Lisa, in fairness to the mother in this case, the reference "dysfunctional family," she has married and her new husband, I understand, has adopted the two children. Is that right?

STONE: That's right. And there's no question about her fitness as a parent. The grandparents admit she's fit.

I also want to point out the other thing that's happening right now is that when single mothers are pulled into court by grandparents, they are more likely to have their wishes overturned. When single fathers are pulled into court, their wishes are more likely to be paid deference. So we also have a strong gender bias issue going on here.

VAN SUSTEREN: All right, that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tomorrow in Pontiac, Michigan, 13-year-old Nathaniel Abraham will be sentenced for a murder he committed at the age of 11. Take a look inside a maximum security juvenile detention center which could be his home until he's 21, and then maybe he's off to an adult facility. That's tonight on "CNN NEWSSTAND" at 10:00 p.m. Eastern time, 7:00 Pacific time.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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