Courts not always best judge of children's rights, interests

January 18, 2000|By Steven Lubet

EVERYONE is in favor of protecting the best interests of children, and almost everyone seems to believe that those interests can be readily identified. When compared with idealized "best interests," blood ties may often appear less compelling, particularly in an age when an increasing number of children are being raised in nontraditional or nonbiological families.

With sad regularity, wrenching cases continue to arise in which judges are called on to decide whether the "rights" demanded by biological parents should outweigh the "interests" of their children, as asserted by some other person. Most recently, the question of grandparents' rights has been raised in a Washington case, which was heard by the U.S. Supreme Court last week.

The circumstances are absolutely heartbreaking. Natalie and Isabel Troxel are the young daughters of Brad Troxel and Tommie Granville, who never married. After the couple separated, Troxel lived with his parents, Jenifer and Gary, who had regular contact with their granddaughters.

Troxel committed suicide in 1993. Ms. Glanville eventually married a man who has since adopted the children. The elder Troxels went to court and initially succeeded in obtaining an extensive visitation order, including one weekend each month, a full week every summer and four hours on each grandparent's birthday.

The Washington Supreme Court, however, threw out the visitation order, holding that it violated Ms. Granville's constitutionally protected parental rights. The Troxels have appealed, and their case will probably be decided by the U.S. Supreme Court sometime this spring.

It may sound harsh, but we should all hope that the grandparents lose. It's not that the Troxels are bad people, and it's not that the girls wouldn't be better off spending time with their loving grandparents. It's just that courts have no business micromanaging the way that parents raise kids.

All 50 states have grandparents' rights statutes, although the Washington law is more broad-reaching than most. In Washington, "any person," whether related or not, can petition a court for visitation rights with somebody else's children.

Constrained only by an amorphous and undefined "best interest" standard, a judge can then decide where the children will spend their summer vacations and even their birthdays. In other words, judicially determined "best interests" can provide the principal reason for depriving legally fit parents of fundamental child-rearing authority.

The "best interest" standard, however, works only as long as one has unflinching confidence in the quality of judicial decision making. Of course, most judges do their best to reach the right results in visitation cases, but it takes a good deal of naive faith to assume that courts have an inherent ability to make better choices than parents.

One need only look at the array of custody decisions in divorce cases -- in which consideration of best interests is unavoidable -- to see that mistakes, even tragic mistakes, happen all the time. Moreover, judges, being human, will never be immune to the cultural, ethnic or religious biases of their day. The use of such a soft test as "best interest" creates the inevitable risk of governmental interference with families whose gravest offense is the failure to conform.

Awards of visitation are implicitly backed up with the coercive power of law enforcement. The concept of "parental rights," though slighted by some as too adult-centered, actually ensures that legally fit parents do not need to fear removal of their children by the local sheriff, based upon a judge's conclusion that the kids are better off spending that particular week with their grandparents (or someone else).

Sometimes the courts have no choice but to determine a child's best interests, as when parents have divorced or where there has been neglect or abuse. But in all other situations, parental decisions must be left to parents.

Steven Lubet is a law professor at Northwestern University.

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