After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state. Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.
Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold. Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases. The typical complaint which would lay out the facts was now not permitted. Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic. While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.
Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases. In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation. The trial court initially dismissed the Complaint because the grandparents could not prove harm. The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..
The Supreme Court affirmed the Appellate Division, holding:
We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court’s findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter’s life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm.
Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:
First, as applied to a complex grandparent visitation case, the Appellate Division’s case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case.
We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division’s case management recommendations in R.K. provide a practical template for courts and parties.
Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent’s death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent’s knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents’ factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.
Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. …
Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be the welfare of the child.
Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child’s parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child’s status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute.
Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless. (Emphasis added); (internal citations omitted and otherwise edited for space).
The takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated. That said, the Court interestingly noted that litigation may not be the answer, when it held:
Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.
Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose. The future of grandparent visitation cases will remain interesting, I’m sure.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.
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JENIFER TROXEL, et vir, PETITIONERS v.
ON WRIT OF CERTIORARI TO THE SUPREME COURT
[June 5, 2000]
Justice OConnor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Breyer join.
Section 26.10.160(3) of the Revised Code of Washington 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. Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, which held that §26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.
Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brads parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their sons death, Tommie Granville informed the Troxels in October 1993 that she wished to limit their visitation with her daughters to one short visit per month. In re Smith, 137 Wash. 2d 1, 6, 969 P.2d 21, 2324 (1998); In re Troxel, 87 Wash. App. 131, 133, 940 P.2d 698, 698699 (1997).
In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court for Skagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition under two Washington statutes, Wash. Rev. Code §§26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issue in this case. Section 26.10.160(3) provides: Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances. At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation per month with no overnight stay. 87 Wash. App., at 133134, 940 P.2d, at 699. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents birthdays. 137 Wash. 2d, at 6, 969 P.2d, at 23; App. to Pet. for Cert. 76a78a.
Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granvilles appeal, the Washington Court of Appeals remanded the case to the Superior Court for entry of written findings of fact and conclusions of law. 137 Wash.2d, at 6, 969 P.2d, at 23. On remand, the Superior Court found that visitation was in Isabelle and Natalies best interests:
The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Petitioners can provide opportunities for the children in the areas of cousins and music.
The court took into consideration all factors regarding the best interest of the children and considered all the testimony before it. The children would be benefitted from spending quality time with the Petitioners, provided that that time is balanced with time with the childrens [sic] nuclear family. The court finds that the childrens [sic] best interests are served by spending time with their mother and stepfathers other six children. App. 70a.
Approximately nine months after the Superior Court entered its order on remand, Granvilles husband formally adopted Isabelle and Natalie. Id., at 60a67a.
The Washington Court of Appeals reversed the lower courts visitation order and dismissed the Troxels petition for visitation, holding that nonparents lack standing to seek visitation under §26.10.160(3) unless a custody action is pending. In the Court of Appeals view, that limitation on nonparental visitation actions was consistent with the constitutional restrictions on state interference with parents fundamental liberty interest in the care, custody, and management of their children. 87 Wash. App., at 135, 940 P.2d, at 700 (internal quotation marks omitted). Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass on Granvilles constitutional challenge to the visitation statute. Id., at 138, 940 P.2d, at 701.
The Washington Supreme Court granted the Troxels petition for review and, after consolidating their case with two other visitation cases, affirmed. The court disagreed with the Court of Appeals decision on the statutory issue and found that the plain language of §26.10.160(3) gave the Troxels standing to seek visitation, irrespective of whether a custody action was pending. 137 Wash. 2d, at 12, 969 P.2d, at 2627. The Washington Supreme Court nevertheless agreed with the Court of Appeals ultimate conclusion that the Troxels could not obtain visitation of Isabelle and Natalie pursuant to §26.10.160(3). The court rested its decision on the Federal Constitution, holding that §26.10.160(3) unconstitutionally infringes on the fundamental right of parents to rear their children. In the courts view, there were at least two problems with the nonparental visitation statute. First, according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Id., at 1520, 969 P.2d, at 2830. Second, by allowing any person to petition for forced visitation of a child at any time with the only requirement being that the visitation serve the best interest of the child, the Washington visitation statute sweeps too broadly. Id., at 20, 969 P.2d, at 30. It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a better decision. Ibid., 969 P.2d, at 31. The Washington Supreme Court held that [p]arents have a right to limit visitation of their children with third persons, and that between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas. Id., at 21, 969 P.2d, at 31. Four justices dissented from the Washington Supreme Courts holding on the constitutionality of the statute. Id., at 2343, 969 P.2d, at 3242.
We granted certiorari, 527 U.S. 1069 (1999), and now affirm the judgment.
The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. U.S. Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of the United States 27 (1998). Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million childrenor 5.6 percent of all children under age 18lived in the household of their grandparents. U.S. Dept. of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998).
The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States recognition of these changing realities of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the
opportunity to benefit from relationships with statutorily specified personsfor example, their grandparents. The extension of statutory rights in this area to persons other than a childs parents, however, comes with an obvious cost. For example, the States recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. Contrary to Justice Stevens accusation, our description of state nonparental visitation statutes in these terms, of course, is not meant to suggest that children are so much chattel. Post, at 10 (dissenting opinion). Rather, our terminology is intended to highlight the fact that these statutes can present questions of constitutional import. In this case, we are presented with just such a question. Specifically, we are asked to decide whether §26.10.160(3), as applied to Tommie Granville and her family, violates the Federal Constitution.
The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. We have long recognized that the Amendments Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. Washington v. Glucksberg,521 U.S. 702, 719 (1997). The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests. Id., at 720; see also Reno v. Flores,507 U.S. 292, 301302 (1993).
The liberty interest at issue in this casethe interest of parents in the care, custody, and control of their childrenis perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska,262 U.S. 390, 399, 401 (1923), we held that the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to control the education of their own. Two years later, in Pierce v. Society of Sisters,268 U.S. 510, 534535 (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. We explained in Pierce that [t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id., at 535. We returned to the subject in Prince v. Massachusetts,321 U.S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Id., at 166.
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois,405 U.S. 645, 651 (1972) (It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements (citation omitted)); Wisconsin v. Yoder,406 U.S. 205, 232 (1972) (The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition); Quilloin v. Walcott,434 U.S. 246, 255 (1978) (We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected); Parham v. J. R.,442 U.S. 584, 602 (1979) (Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course); Santosky v. Kramer,455 U.S. 745, 753 (1982) (discussing [t]he fundamental liberty interest of natural parents in the care, custody, and management of their child); Glucksberg, supra, at 720 (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 ones children (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statutes text, [a]ny person may petition the court for visitation rights at any time, and the court may grant such visitation rights whenever visitation may serve the best interest of the child. §26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parents children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parents decision that visitation would not be in the childs best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parents decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parents estimation of the childs best interests, the judges view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judges determination of the childs best interests. The Washington Supreme Court had the opportunity to give §26.10.160(3) a narrower reading, but it declined to do so. See, e.g., 137 Wash. 2d, at 5, 969 P.2d, at 23 ([The statute] allow[s] any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm); id., at 20, 969 P.2d, at 30 ([The statute] allow[s] any person to petition for forced visitation of a child at any time with the only requirement being that the visitation serve the best interest of the child).
Turning to the facts of this case, the record reveals that the Superior Courts order was based on precisely the type of mere disagreement we have just described and nothing more. The Superior Courts order was not founded on any special factors that might justify the States interference with Granvilles fundamental right to make decisions concerning the rearing of her two daughters. To be sure, this case involves a visitation petition filed by grandparents soon after the death of their sonthe father of Isabelle and Nataliebut the combination of several factors here compels our conclusion that §26.10.160(3), as applied, exceeded the bounds of the Due Process Clause.
First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham:
[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. The laws concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making lifes difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 442 U.S., at 602 (alteration in original) (internal quotation marks and citations omitted).
Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children. See, e.g., Flores, 507 U.S., at 304.
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granvilles determination of her daughters best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:
The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isnt the case here from what I can tell. Verbatim Report of Proceedings in In re Troxel, No. 933006507 (Wash. Super. Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).
The judges comments suggest that he presumed the grandparents request should be granted unless the children would be impact[ed] adversely. 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 judge reiterated moments later: I think [visitation with the Troxels] would be in the best interest of the children and I havent been shown it is not in [the] best interest of the children. Id., at 214.
The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. See Parham, supra, at 602. In that respect, the courts presumption failed to provide any protection for Granvilles fundamental constitutional right to make decisions concerning the rearing of her own daughters. Cf., e.g., Cal. Fam. Code Ann. §3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in childs best interest if parents agree that visitation rights should not be granted); Me. Rev. Stat. Ann., Tit. 19A, §1803(3) (1998) (court may award grandparent visitation if in best interest of child and would not significantly interfere with any parent-child relationship or with the parents rightful authority over the child); Minn. Stat. §257.022(2)(a)(2) (1998) (court may award grandparent visitation if in best interest of child and such visitation would not interfere with the parent-child relationship); Neb. Rev. Stat. §431802(2) (1998) (court must find by clear and convincing evidence that grandparent visitation will not adversely interfere with the parent-child relationship); R. I. Gen. Laws §15524.3(a)(2)(v) (Supp. 1999) (grandparent must rebut, by clear and convincing evidence, presumption that parents decision to refuse grandparent visitation was reasonable); Utah Code Ann. §3052(2)(e) (1998) (same); Hoff v. Berg, 595 N. W. 2d 285, 291292 (N. D. 1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the childs best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor child). In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parents decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parents own determination.
Finally, we note that there is no allegation that Granville ever sought to cut off visitation entirely. Rather, the present dispute originated when Granville informed the Troxels that she would prefer to restrict their visitation with Isabelle and Natalie to one short visit per month and special holidays. See 87 Wash. App., at 133, 940 P.2d, at 699; Verbatim Report 12. In the Superior Court proceedings Granville did not oppose visitation but instead asked that the duration of any visitation order be shorter than that requested by the Troxels. While the Troxels requested two weekends per month and two full weeks in the summer, Granville asked the Superior Court to order only one day of visitation per month (with no overnight stay) and participation in the Granville familys holiday celebrations. See 87 Wash. App., at 133, 940 P.2d, at 699; Verbatim Report 9 (Right off the bat wed like to say that our position is that grandparent visitation is in the best interest of the children. It is a matter of how much and how it is going to be structured) (opening statement by Granvilles attorney). The Superior Court gave no weight to Granvilles having assented to visitation even before the filing of any visitation petition or subsequent court intervention. The court instead rejected Granvilles proposal and settled on a middle ground, ordering one weekend of visitation per month, one week in the summer, and time on both of the petitioning grandparents birthdays. See 87 Wash. App., at 133134, 940 P.2d, at 699; Verbatim Report 216221. Significantly, many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. See, e.g., Miss. Code Ann. §93163(2)(a) (1994) (court must find that the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child); Ore. Rev. Stat. §109.121(1)(a)(B) (1997) (court may award visitation if the custodian of the child has denied the grandparent reasonable opportunity to visit the child); R. I. Gen. Laws §15524.3(a)(2)(iii)(iv) (Supp. 1999) (court must find that parents prevented grandparent from visiting grandchild and that there is no other way the petitioner is able to visit his or her grandchild without court intervention).
Considered together with the Superior Courts reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granvilles fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, the Troxels are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music. App. 70a. Second, [t]he children would be benefitted from spending quality time with the [Troxels], provided that that time is balanced with time with the childrens [sic] nuclear family. Ibid. These slender findings, in combination with the courts announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granvilles already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her childrens best interests. The Superior Courts announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: I look back on some personal experiences . We always spen[t] as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out. Verbatim Report 220221. 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. Neither the Washington nonparental visitation statute generallywhich places no limits on either the persons who may petition for visitation or the circumstances in which such a petition may be grantednor the Superior Court in this specific case required anything more. Accordingly, we hold that §26.10.160(3), as applied in this case, is unconstitutional.
Because we rest our decision on the sweeping breadth of §26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Courtwhether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with care. Post, at 9 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.1 See, e.g., Fairbanks v. McCarter, 330 Md. 39, 4950, 622 A. 2d 121, 126127 (1993) (interpreting best-interest standard in grandparent visitation statute normally to require courts consideration of certain factors); Williams v. Williams, 256 Va. 19, 501 S. E. 2d 417, 418 (1998) (interpreting Virginia nonparental visitation statute to require finding of harm as condition precedent to awarding visitation).
Justice Stevens criticizes our reliance on what he characterizes as merely a guess about the Washington courts interpretation of §26.10.160(3). Post, at 2. Justice Kennedy likewise states that [m]ore specific guidance should await a case in which a States highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself. Post, at 10. We respectfully disagree. There is no need to hypothesize about how the Washington courts might apply §26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like the Washington Supreme Court, then, we are presented with an actual visitation order and the reasons why the Superior Court believed entry of the order was appropriate in this case. Faced with the Superior Courts application of §26.10.160(3) to Granville and her family, the Washington Supreme Court chose not to give the statute a narrower construction. Rather, that court gave §26.10.160(3) a literal and expansive interpretation. As we have explained, that broad construction plainly encompassed the Superior Courts application of the statute. See supra, at 89.
There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. As Justice Kennedy recognizes, the burden of litigating a domestic relations proceeding can itself be so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the childs welfare becomes implicated. Post at 9. 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. We should say so now, without forcing the parties into additional litigation that would further burden Granvilles parental right. We therefore hold that the application of §26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.
Accordingly, the judgment of the Washington Supreme Court is affirmed.
It is so ordered.