WASHINGTON -- The spreading campaign to gain new legal rights for grandparents -- especially, guaranteed access to their grandchildren -- appeared yesterday to be on the verge of a major setback in the Supreme Court.
The justices, hearing their first case concerning the creation of visitation rights for grandparents, reacted with skepticism -- and sometimes disdain -- to the idea that courts could compel parents to share their children with others.
Strong curbs signaled
The court did not appear poised to bar states from giving grandparents any right to visit with their grandchildren, as 48 states have done, but it gave strong hints that it would curb significantly any guarantee of such visits, especially when parents object.
Justice Sandra Day O'Connor, speaking to a lawyer for Jenifer and Gary Troxel, Washington state grandparents who were denied overnight visits with grandchildren by the children's mother, said, "You think that states can have laws that say a person at any time can march in and ask the state, in the best interests of the child, to allow them to visit. That is a breathtaking provision."
Chief Justice William H. Rehnquist, questioning the lawyer, Mark D. Olson of Seattle, suggested that his argument would mean that "a great-aunt can come in and say, `I want to take the children to the movies every Friday.' "
Justice Antonin Scalia sarcastically suggested that the advocate for grandparents' rights was seeking power for a judge who likes candy to decree that children get candy once a week over their parents' objection.
Law was struck down
Those justices were reacting initially to a sweeping Washington state law that gave any third party, not just relatives, a right to seek visits with children. The law was struck down by that state's Supreme Court.
Other comments by most of the justices indicated that they were troubled by the general idea of handing to courts the power to define a child's "best interests" when that child has fit parents and the children face no apparent harm.
Scalia said at one point, "The child doesn't belong to the court; it belongs to the parents."
The justices seemed willing to let courts consider a child's "best interests" when legal custody of a child is at issue, as in a divorce case, but not when visits with the children by grandparents or others were at issue.
Although the court has never ruled explicitly that a child's parents have a constitutional right to control all visits by others with their youngsters, it has broadly restricted government power to second-guess parents' choices about how to raise their children.
Rehnquist suggested that such parental-rights decisions cut against grandparents' claim of a right of access.
After Olson told the court that a ruling against grandparents could undercut laws on grandparents' visits in 48 states, several justices expressed concern. But they also drew from Olson confirmation that most of those laws do not give grandparents rights that are as broad as those granted by the Washington statute.
Catherine W. Smith of Seattle, the lawyer for the mother in the case, and the children's adoptive father denounced the broad order on visits that the grandparents had sought and had temporarily gained.
Smith also appeared to gain significant support from the court for a general argument that those seeking guaranteed access to children should have to first prove that there was a risk of harm to the children.
Courts could then examine the parents' challenged decisions "to determine if they were within an acceptable range," which would be far different from allowing a court to "decide the best interests of the child," she said.
The justices are expected to rule on the case by summer.