Forensic Corner; Best Interests of the Child?
Lee H. Haller, M.D
Brad Troxel and Tommie Granville lived together intermittently
between 1989 and 1991. Although they never married,
the union led to the birth of two daughters, Natalie
Anne Troxel and Isabelle Rose Troxel. The relationship
between the parents did not work out. Mr. Troxel began
living with his parents. Ms. Granville entered into
another relationship. Father continued to visit the
children, bringing them to his home, with the result
that his parents, Jenifer and Gary, developed a relationship
with their granddaughters. In 1993, Brad Troxel committed
suicide. The paternal grandparents wished to continue
visitation with their grandchildren. Tommie Granville
was willing to let visitation go forward, but not as
often as the Troxels had wished. Brad Troxel and Tommie
Granville lived together intermittently between 1989
and 1991. Although they never married, the union led
to the birth of two daughters, Natalie Anne Troxel and
Isabelle Rose Troxel. The relationship between the parents
did not work out. Mr. Troxel began living with his parents.
Ms. Granville entered into another relationship. Father
continued to visit the children, bringing them to his
home, with the result that his parents, Jenifer and
Gary, developed a relationship with their granddaughters.
In 1993, Brad Troxel committed suicide. The paternal
grandparents wished to continue visitation with their
grandchildren. Tommie Granville was willing to let visitation
go forward, but not as often as the Troxels had wished.
Therefore, in December 1993, they filed suit seeking
visitation rights and a specified amount of visitation.
The basis for their being able to do this was a Washington
State law, which allowed for any person to seek visitation
rights with a child. In 1995, the trial court granted
the grandparents visitation of one weekend per month,
a week during the summer, and four hours on each of
the girls' birthdays. Ms. Granville appealed the decision.
Before it was heard by the court of appeals, Ms. Granville
married Kelly Wynn, who adopted the girls in February,
1996.
On July 28, 1997, the appellate court reversed the
trial court's decision. It found that the Troxels did
not have standing to petition for visitation because
there was no court proceeding with regard to custody
of the children. The appellate court deemed this a necessary
prerequisite, even though such was not clearly stated
in the Washington statute. The Troxels appealed to the
Washington State Supreme Court. Oral arguments were
heard on March 11, 1998. On Christmas Eve that year,
the Supreme Court issued its ruling (having consolidated
this case with two other visitation cases). It reversed
the appellate court decision that the Troxels did not
have standing to seek visitation. However, the court
went further, finding the statute unconstitutional because
it interfered with the right of parents to raise a child
free from outside interference. The state could interfere
with this liberty interest only to prevent harm to the
child. The "best interest of the child" was held to
be an insufficient reason for the state intervention
absent this potential for harm.
Again, the Troxels appealed, this time to the United
States Supreme Court. The Court agreed to review the
case. Arguments were presented January 12, 2000. The
decision likely will not be handed down until June of
this year. Since the Washington Supreme Court ruling,
the Troxels have seen Isabelle only twice and Natalie
only once. This sparse visitation occurred even though
Ms.Wynn, in her written evidence to the Supreme Court,
stated that she never intended to cut off all contact
with the grandparents, but merely wanted enough time
for her new family to become cohesive. (Washington Post
1/9/00, pg.19).
It is extremely rare for child custody cases to reach
the Supreme Court. Thus, this case becomes newsworthy
simply on that basis. More importantly, however, the
Court decision may impact similar laws that exist in
all 50 states, which relate to visitation by grandparents
and other third-party non-relatives. Because a huge
segment of the population falls into one of these categories,
a number of special interest groups have become involved.
For example, the AARP is involved on the behalf of grandparents.
Additionally, gay rights, religious, and civil libertarian
organizations are all speaking upon behalf of their
members. In view of all this, it is not surprising that
the case recently made the front page of the Washington
Post.
To me, the importance of this case is the disaster
that likely has been caused to the lives of these young
girls by virtue of the ongoing litigation. We know that
an adversarial relationship between natural parents
is harmful to the children, regardless of whether the
parents divorce or not. It seems likely that this axiom
is applicable in this case, since a) the paternal grandparents,
along with mother, had participated to a significant
degree in the early parenting of these children; and
b) the relationship between the competing adults subsequently
became markedly adversarial. The opinion of the Supreme
Court, whenever it is delivered, will be seen as a victory
for those whose position was supported and a loss for
those who went down to defeat. The only certain losers
are the children who have been the victims of the litigation
process for over five of their eight to ten year existences.
(As a comparison, for someone who is 50 years old, the
litigation would have been going on for between 25 and
30 years.) The U.S. Constitution gives persons the right
to a speedy trial, but only if they are defendants in
a criminal proceeding. These two girls are not defendants,
but they are victims. They have no attorney representing
their interest. If they did, this battle could have
been resolved long ago. How can a wait of 6 1/2 years
be called justice?
When cases involve children, they should proceed at
a pace that comports with the needs of the child, not
the adults. You can help make this happen by taking
the opportunity, whenever it presents itself, to educate
divorcing parents, attorneys, and members of the judiciary.
Don't let this chance pass you by.
Dr. Haller is in the private practice of forensic psychiatry
in Potomac, Maryland.
AACAP
News/March-April 2000
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