Parental (and Grandparental) Rights after Troxel V. Granville

Abstract

In Troxel v Granville, the Supreme Court held that state courts, when reviewing grandparent-visitation claims under the best interests of the child standard, must give some deference to the judgments of fit custodial parents. This article argues that Troxel was rightly decided, but that the Court did not go far enough. Judicial review of visitation disputes under a child-welfare standard creates high litigation costs but yields little or no net improvement in parental incentives. The threat of litigation will induce some parents to allow welfare-enhancing visitation, but it will induce others to permit welfare-reducing visitation. On the other hand, intra-family litigation creates sizeable financial and emotional costs that are incurred (in varying amounts) in every grandparent-visitation case. Thus, the common law rule, under which parents had plenary discretion over visitation issues, is clearly superior to most existing grandparent visitation laws, which typically allow courts freely to override parental visitation decisions.

By requiring courts to give some deference to parental judgments when they review visitation disputes under the best interests of the child standard, Troxel will reduce the damage done by grandparent visitation statutes. The problem, however, is that the deference Troxel envisions comes at the end of the litigation, rather than at its inception. Under Troxel, fewer grandparents will litigate - but those who do will still, in most cases, be able to force a full-blown trial on the merits. Economic analysis suggests that the better approach is a stronger rule forbidding any judicial review of parental visitation decisions absent a threshold showing that the grandparent-child relationship is particularly important, e.g., that the grandparents are de facto parents to the child.

But could a rule of that kind be defended as a matter of constitutional law? The article argues that it can. The Supreme Court ducked the level of scrutiny question lurking in Troxel. A close reading of the opinions in Troxel suggests, however, that the Court is most likely to choose intermediate-scrutiny review for parental rights. Moreover, that level of scrutiny seems appropriate in light of the nature of parental rights, which exist primarily to advance the best interests of children. Intermediate scrutiny, appropriately informed by economic analysis, provides a sufficient basis for a rule precluding judicial review of parental visitation decisions in most cases.

JEL Classification: K19, K41