I.  INTRODUCTION

Throughout United States history, the common and legal understanding of what constitutes a parent has evolved.[1]  However, even with these changes in belief and definition, certain traditional views about the family structure have remained intact.  For example, the concept of being a parent as a constitutional right, separate and apart from the state, has not fundamentally changed with the times.[2]  In fact, a long line of cases still support the contention that a parent has a Fourteenth Amendment right to determine what is in the best interests of his or her child.[3] 

However, with the dramatic change in today’s understanding of “family,” [4]  new societal values are creating a tension between this long protected liberty interest and the developing view that what constitutes a family involves more than the nuclear unit.[5]  The result has been new legislation reflecting society’s desire to expand the number of people holding recognized interests within the family unit.[6]  Nonparental visitation statutes have become the most popular legislative method for increasing these third party rights.[7]  Present in all fifty states,[8] these statutes recognize that a nonparent has an interest in maintaining a relationship with a child with whom they have formed a connection.[9]  In addition, the statutes recognize that, for the most part, a child holds a considerable interest in maintaining a relationship with the nonparent as well.[10]  Therefore, there are two main issues concerning the nation regarding third party visitation statutes.  First, whether these nonparental visitation statutes are really serving a legitimate function.[11]  Second, if their function is indeed legitimate, whether they constitute a legally justifiable governmental intrusion into the family unit.[12]  Unfortunately, the answers to these questions have been left unclear by the United States Supreme Court.[13]

                                This Note begins by introducing the strong historical support for a parent’s fundamental liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, to control the upbringing of his or her own child.  It also examines the limitations placed on that right.[14]  Section two illustrates the need to balance these two perspectives when analyzing the current debate over nonparental visitation statutes.  Section three addresses how the case of Troxel v. Granville[15] reached the United States Supreme Court and the implications of the Court’s decision.  Section four focuses on New York State by considering its nonparental visitation statutes,[16] the effect of the Troxeldecision on New York third party visitation cases,[17] and the likelihood that, if challenged, New York’s current nonparental visitation statutes would survive constitutional review.[18]  Finally, section five argues that mediation can only truly reduce the legal and emotional conflicts that exist over third party visitation [19] if third parties are first provided with statutory standing.

 

II.  BOUNDARIES FOR PARENTAL DECISIONMAKING ESTABLISHED BY THE UNITED STATES SUPREME COURT

 

A.       Meyer v. State of Nebraska[20] and Its Progeny: Cases Supporting a Parent’s Fourteenth Amendment Right to Control the Upbringing of His or Her Child

 

Meyer v. State of Nebraska is an early case supporting the contention that a parent has a Fourteenth Amendment Due Process right to control the upbringing of his or her child.[21]  In Meyer, a teacher defied a criminal statute by instructing a student in a foreign language when he had not yet passed the eighth grade.[22]   The teacher’s conviction was challenged and later reversed as unconstitutional by the United States Supreme Court. [23]  Although the Court recognized a state’s interest in promoting civic development, it held that Nebraska’s statute was too arbitrary to survive constitutional review when it was balanced against a parent’s fundamental right to control the education of his or her child.[24]  Therefore, Meyer affirmed through substantive due process the already present societal belief that parents have a constitutional right to raise their children as they see fit.[25]

 Other cases brought before the United States Supreme Court provide support for this constitutional right of parents to “parent.”[26]  In Pierce v. Society of Sisters,[27] a statute requiring students to attend only public schools was challenged.  Held unconstitutional, the United States Supreme Court reasoned that state regulation over a parent’s choice for his or her child’s education “…unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”[28] 

While Meyerand Pierce provide foundational support for the claim that parents have a well-established fundamental right to be the ultimate decision-makers for their children, the Supreme Court in Parham v. J.R.[29] provides the oft cited reasoning behind this parental right.  In Parham,[30] institutionalized children brought a class action suit challenging a statute which permitted their parents to institutionalize them, while children, against their will.  The United States Supreme Court held the statute constitutional based upon the “natural bonds of affection” parents have for their children.[31]  The Court contended that historically, parents have been perceived as acting in the best interests of their children.[32]  Therefore, the legislature’s presumption that parents will typically act in their children’s best interests, was reasonable when the legislature formulated the statute.[33]

 

B.       The Broad Protection Afforded to Parental Rights Under the Fourteenth Amendment is Not Unlimited

 

                        The 1944 Supreme Court case of Prince v. Massachusetts[34] demonstrates that, although there is a strong constitutional right to raise one’s child without state interference, the right is not unlimited.  In Prince, a child’s legal guardian was criminally charged for defying a child labor statute which prohibited any person from aiding a minor violating the law.[35]  Although the Supreme Court viewed the guardian as the child’s parent,[36] it still found the statute constitutional and the guardian in violation.[37]  Therefore, while a parent does have a fundamental liberty interest in directing the upbringing of his or her child, the state may still limit the degree of parental freedom in areas that may otherwise adversely affect the child’s welfare.[38] 

                        The limitation demonstrated in Prince, derives from the state’s right to regulate under its parens patriae power:

The parens patriae doctrine allows a state to protect its quasi-sovereign interests in the ‘health, comfort, and welfare of its citizens.’ The doctrine of parens patriae, literally ‘parent of the country’ comes from English common law….  The state’s parens patriae power thus fits within the state’s police power ‘to regulate public health and safety, maintain the peace, and provide for the general welfare.’[39] 

 

This state power is balanced against a parent’s fundamental right to control the upbringing of his or her child.  Although a parent is granted broad discretion,[40] this parens patriae power prevents the parental right from being absolute.[41]  Therefore, the first issue is whether these nonparental visitation statutes are a constitutional use of the state’s parens patriae power since their intended purpose is to prevent a parent from behavior which adversely affects his or her child’s health or general welfare.[42]  Second, if these statutes are a constitutional use of the state’s parens patriae power, the issue is then whether the state’s interest is great enough to outweigh the parent’s constitutional right to control the upbringing of his or her child. [43]

                 

C.       The Extent of a Grandparent’s Right to Obtain Court Ordered Visitation With His or Her Grandchild

               

                As stated in the Columbia Law Review,

At common law, grandparents, who were denied access to their grandchildren by the grandchildren’s parents had no recourse to the judicial system.  Courts generally took the position that judges may not interfere with parents’ decisions about how to raise their children, and that ‘the obligation ordinarily to visit grandparents is moral and not legal.’[44]

 

This created the illogical scenario that a grandparent could more easily obtain custody of his or her grandchild than be granted visitation over the parent’s objection.[45]  However, as society began to place a greater importance on the role of grandparenting, legislators and other political leaders launched a concerted effort to expand grandparental rights.[46]  One result was the promulgation of third party visitation statutes specifically providing grandparents with standing to seek court ordered visitation.[47]

                The recent trend[48] to expand nonparental visitation statutes for grandparents is motivated by several factors.[49]  First, as part of a strong political lobby, grandparents have their interests taken quite seriously by the legislature.[50]  Second, grandparents are living longer today than ever before, thus creating a larger number of individuals interested in this issue.[51]  Third, today’s grandparents frequently take over what has traditionally been the role of parents.[52]  As a result, grandparents may legitimately have a greater interest in maintaining a relationship with their grandchildren than ever before.[53]

 

D.       The Dilemma For Other Third Parties Seeking Visitation Rights

 

                Historically, the rights of third parties, other than grandparents, have been even more limited.[54]  Although some states recognize sibling rights regarding visitation, [55] many other third parties have never been recognized as holding any legitimate legal relationship to the child.[56]  Groups desiring such recognition may include, but are not limited to, step-parents, siblings and other relatives, foster parents, prospective adoptive parents, and biological parents’ nonmarital partners.[57]  In response to these societal changes, the interests of these groups are sometimes discussed in court opinions.[58]  However, for now, the lack of historical, precedential, and statutory support still makes most claims by these third parties a near certain defeat.[59]

                Although there is far less support for non-grandparent third parties seeking visitation, legal and political lobbying is now underway to give these individuals similar judicial and statutory recognition.[60]  One argument in favor of these statutes is simply that it is in the child’s best interest to have these individuals permitted visitation.[61]  Advocates contend that the changing nature of society has not only created a new and more active role for grandparents, but it has also incorporated new people into the lives of children.[62] 

 

III.            THE UNCERTAIN STATUS OF NONPARENTAL VISITATION STATUTES FOLLOWING THE UNITED STATES SUPREME COURT’S DECISION IN TROXEL v. GRANVILLE[63]

               

                All fifty states possess some form of a nonparental visitation statute.[64]  However, the constitutionality of many of these statutes has come into question following the decision of Troxel v. Granville.[65]  The United States Supreme Court held in Troxel that, as applied, Washington’s nonparental visitation statute[66] was an unconstitutional infringement upon a parent’s fundamental liberty interest as guaranteed by the Fourteenth Amendment.[67]

 

A.       Washington’s Nonparental Visitation Statute Was Determined By the United States Supreme Court to Be Unconstitutional As Applied

               

                Washington received the most attention for its nonparental visitation statute when the case of Troxel v. Granville was appealed all the way to the United States Supreme Court.[68]  Although Troxel was a family case, the Supreme Court still granted certiorari, thereby demonstrating the high degree of national concern regarding this issue.[69] 

                In Troxel, the grandparents (“Troxels”) petitioned the Washington Superior Court to obtain a court ordered right to visit their grandchildren over the mother’s (“Granville”) objections.  The Troxels sought relief under the following Washington statute, which provided in pertinent part that:

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.[70] 

 

The Troxels claimed that they should be granted court ordered visitation because, among other reasons, it was in their grandchildren’s best interests to continue with a visitation schedule similar to the one that had existed before their father’s suicide.[71]  In addition, the Troxels argued that they had always maintained an important relationship with their grandchildren.[72]  In her defense, Granville stated that she had not denied her children any visitation with their grandparents, but had merely limited the amount.[73] 

                The United States Supreme Court held the Washington statute regarding third party visitation rights unconstitutional as applied.[74]  The Court gave particular weight to the facts that the mother had not denied the grandparents visitation entirely[75] and that the trial court had made a presumption in favor of the grandparents rather than the fit parent.[76] 

                However, while this decision may provide the impression that grandparents do not have a claim for visitation above the objections of a fit parent, that would be a mischaracterization.[77]  In fact, several aspects of the Troxel decision leave its precedential value, regarding parental decisionmaking, in serious question. [78]  First, the opinion was written merely as a plurality.[79]  Second, the plurality did not hold the Washington statute to be facially unconstitutional, but rather unconstitutional as applied.[80]  Finally, each opinion, and there are six, provides a different argument about the merits and demerits of this case and other nonparental visitation statutes in general.[81]  Therefore, the Troxel decision provides no clear rule for state legislatures to follow when attempting to formulate a nonparental visitation statute that avoids unconstitutional infringements upon a parent’s liberty interest.[82]           

 

B.       Constitutional Concerns Regarding the Expansion of Third Party Rights Provided By Nonparental Visitation Statutes

               

                Although every state has some form of a nonparental visitation statute, several of these state statutes, like in Washington, already have been challenged.[83]  The claim is that these nonparental visitation statutes allow third parties to unconstitutionally intrude, in several ways, upon the well-established fundamental right of a parent to control the upbringing of his or her child.[84]  One argument is that these statutory expansions allow trial judges to substitute their beliefs, of what is in the best interests of the child, for those of a fit parent.[85]  A second contention is that some of these statutes are so broad that they permit suits by any person at any time, even if they had no substantive relationship with the child.[86]  A third major criticism is that these statutes, with their open standing requirements, enable petitioners to drag parents into court at any time, even if the claim lacks any real merit.[87]

 

IV.            APPLYING THE TROXEL v. GRANVILLE DECISION TO NEW YORK’S NONPARENTAL VISITATION STATUTES

 

A.       The Uncertain Implications of the TroxelDecision in New York State

                                        

                It is difficult to determine the future status of New York’s nonparental visitation statutes in the wake of the Troxel decision.[88]  New York’s visitation statutes confer standing to grandparents[89] and siblings[90] before proceeding to a best interests inquiry.[91]  However, the New York Court of Appeals has not addressed this issue since the Troxel decision.  In addition, only a small number of New York’s lower courts have addressed the subject.  Therefore, New York does not have firmly established case law on the topic of third party visitation.[92] 

                After the Troxel ruling, New York’s nonparental visitation statutes appear to be facially constitutional.  However, counterarguments exist.[93]  For example, the petitioners denied standing in Troxel were grandparents who had maintained precisely the close relationship that the New York grandparental visitation statute was designed to protect.  If the Troxels were enjoying unconstitutional protection, how can New York’s grandparents statute be constitutional?  The answer is that the implication of the Court’s decision to limit its holding cannot be underestimated.

 

B.       An Explanation Supporting the Likely Constitutionality of New York’s Two Nonparental Visitation Statutes

 

                Although the Court denied grandparents standing in Troxel v. Granville, there are several significant differences between the Washington statute as applied in Troxel, and the nonparental visitation statutes in New York.  First, the plurality specifically stated that this decision should not be viewed as determining whether nonparental visitation statutes in general are, or are not, constitutional.[94]  Second, the decision did not hold the Washington statute, a statute much broader than either of the New York statutes,[95] to be unconstitutional on its face.[96]   Third, the Court stated that the trial judge erred by substituting his own opinion for that of a fit parent without giving the parent’s decision “special weight.”[97]   Fourth, the plurality acknowledged that Granville did not deny the Troxels any visitation rights, but was merely limiting them.[98]  Fifth, the Troxel decision did not address N.Y. DOM. REL. §71 (2001) at all.  In fact, the court’s judgment only pertained to Washington’s broad nonparental visitation statute’s unconstitutional application to specific parties.  In contrast, N.Y. DOM. REL. §71 is a specific nonparental visitation statute for siblings.

                Since there is no clear-cut application of the decision, the effect of the case on New York families is indeed minimal.  By examining the few lower and appellate court decisions in New York following the Supreme Court’s decision, it is evident that Troxel lacks strong precedential value.[99]  Courts rely upon Troxel when it aids a favorable outcome and are able to easily distinguish the decision when it does not.[100]  As a result, the question of how to handle family problems in this area remains unresolved.   

 

V.  WHAT IS MEDIATION AND WHY IS IT PARTICULARLY APPLICABLE TO FAMILY LAW?

 

A.  Definition.

                Mediation has been defined as “assisted communications for agreement”[101] or “a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement.”  It is an extension of the parties own negotiations and is sometimes referred to as “supercharged negotiation.”[102]  The mediation procedure, although less structured than a courtroom, still follows defined rules.  First, the mediation process is both voluntary and non-binding.[103]  It is not the job of the mediator to make a final determination, but rather to aid the parties in formulating their own solution by identifying the problems and assisting with the development of a solution.[104]  Since mediation is private and confidential,[105] the results are inadmissible if there is a subsequent court proceeding.[106]  In addition, each party may obtain legal counsel for the mediation proceeding.[107]  Although the actual format for these proceedings can vary, most mediators use caucuses or private and confidential meetings between a party and the mediator.[108]  During these caucuses, the mediator examines each party’s position and discusses with them their various options in order to obtain a settlement.[109]