National Post

Posted at 07:07 a.m. PDT; Monday, October 18, 1999

Grandparents vs. parents: 2 generations, 2 views of rights

Marsha King
Seattle Times staff reporter

In a turn-of-the-century house on a hill in Skagit County, Tommie Wynn is waiting for her passel of kids to troop in from school. Then, she says, they'll "eat, fight a little, do a little homework, fight a little more, go to soccer practice and piano."

And, as she has for the past six years, Wynn is also waiting for some court, "like a big dark cloud," to intrude on her family's privacy and her fight with the grandparents of two of her children.

This time, she's waiting for the U.S. Supreme Court. And the fight is anything but private.

The grandparents, Jenifer and Gary Troxel, want the legal right to regularly scheduled visits with their granddaughters. They are the parents of Brad Troxel, the girls' father, whom Wynn never married.

Wynn and her husband, Kelly, insist they've always allowed the Troxels to see their granddaughters - maybe not as much as they wanted or under their exact terms. But even in times of bitter conflict, they say, the Troxels had access to the children.

Six years ago, Wynn cut back the Troxels' visits with the children, then 18 months and 3 years old. Brad Troxel, from whom she had separated two years before, had committed suicide, and Tommie was about to marry Kelly Wynn, who had children of his own.

The Troxels asked for mediation, say the Wynns, but they refused. Fit parents, they strongly believed, should be able to decide who will visit their children, and when.

In late 1993, the grandparents took the fight to court.

The issue: `grandparents' rights'

In 1994, a trial court gave the grandparents visitation rights - but the appeals court took them away. Last year, the state Supreme Court affirmed the appeals court.

Now, the U.S. Supreme Court, which agreed two weeks ago to take the case, will consider for the first time the volatile national issue known as "grandparents' rights."

The question the court will tackle is whether any third party - including grandparents - has a legal right to sustain a relationship with a child over a fit parent's objections, and under what conditions.

In Washington, the law once gave grandparents or anyone else the right to ask for court-ordered visitation - if it was in the child's best interests.

But the state Supreme Court concluded that the state may not intrude on the privacy rights of parents to raise their children, except to prevent harm or risk of harm to the child. The "best interests of the child," the court said, take a back seat to parents' rights.

No one knows what tack the Supreme Court may take. But the ruling could touch millions of American families, which, more than ever, don't resemble Beaver Cleaver's. Children seemingly can be conceived a dozen different ways, and may be reared by biological parents, grandparents, other relatives or by biologically unrelated adults who may be gay or straight.

Private fight goes public

Meanwhile, the Troxel and Wynn families, while striving for privacy, are becoming sought-after celebrities. National media want interviews. Advocacy groups are lining up on both sides. Strangers locked in the same tragic battles call every day from across the country. Business associates of Kelly Wynn, the girls' stepfather, wonder, "What in the world is going on?" The girls' classmates announce, "I read about you and your sister."

Jenifer Troxel, the girls' grandmother, takes a break from her job as assistant finance director for the city of Anacortes to talk about her family. Her comments are careful and sparse, per her attorney's strict orders.

"It hasn't been easy. We want to see our granddaughters on a regular basis, and we haven't been able to do that," she says in an even voice. "The whole thing hasn't been easy."

For Tommie Wynn, it feels like being in a train wreck.

"And people are driving by looking at you all crumpled up. Personally, I feel very exposed."

Why this went to court

After Brad Troxel and Tommie separated, Brad lived with his parents and regularly brought his daughters to their house for weekend visits, according to court documents.

The dispute started after Brad committed suicide in 1993.

After he died, Jenifer and Gary Troxel saw the girls regularly, although the girls did not stay overnight at their grandparents' house.

But Tommie, about to marry Kelly Wynn, decided the girls should spend less time with the Troxels.

"We were trying to put our family together," says Tommie, whose new blended family included eight children. The six youngest, including the Troxels' granddaughters, were living with her and Kelly. "We just needed to settle things and get some structure."

Tommie offered to let the grandparents see the girls once a month. They declined and asked for mediation, says Tommie, who refused. "This is what we offered," she says.

When the grandparents took the dispute to court, they asked to see the girls two weekends overnight per month and two weeks in the summer. But the Skagit County Superior Court ordered less: one weekend a month, one week in the summer and four hours on each grandparent's birthday.

To the Wynns, any court-ordered visitation was totally unacceptable.

"It was just really, really against what we felt was right for us - having somebody else dictate how our children's lives will go," says Tommie Wynn. Their fitness as parents is not in question.

"I just really feel that outside of neglect or abuse, the government doesn't have much business in these types of matters," says Kelly Wynn.

Profiling the families

Tommie and Kelly Wynn, married six years, together parent eight children, ages 5 to 19.

Three were born to Tommie in a first marriage that ended in divorce. She and Kelly had a child together after marrying in December 1993. Kelly also has two children from a first marriage. He adopted Tommie's daughters by Brad Troxel in 1996.

Kelly owns a company that manages water-treatment utilities for small communities. Tommie is a stay-at-home mom.

The Troxels, who have been married 35 years, had four children, including Brad. They have five grandchildren. The entire family lives in Skagit County.

Gary Troxel is a longshoreman who was the lead singer of the Fleetwoods, a classic-rock trio from Olympia, in the 1960s. Gary still performs with the group, best known for two gold records: "Come Softly to Me" and "Mr. Blue."

An important case

National advocacy groups are watching this case closely. The American Association for Retired Persons (AARP) and the National Coalition of Grandparents are preparing friend-of-the-court briefs in support of the grandparents. The Coalition for the Restoration of Parental Rights will submit one for the parents.

"This issue is one that's been festering for many years in many different states," says Catherine Smith, the Wynns' attorney.

The matter is not simple emotionally or legally.

"You want to honor and uphold the rights of parents to raise their children and, in many cases, they are single mothers," says Cathy Zavis of the Northwest Women's Law Center.

Sometimes parents have reasons to deny access that they don't wish to disclose, she says, such as their own abuse as children by one of the grandparents. This issue is not raised in court documents in the case before the Supreme Court.

On the other hand, Zavis says, if grandparents - or others who are not the biological or adoptive parents - are raising the children, they should have legal standing in court.

"To suddenly say you're not a parent because the law doesn't recognize you as a parent is a legal fiction," she says.

The Law Center is against granting access to the courts for third parties - including grandparents - who haven't played a parenting role.

The opposing viewpoint

Grandparents' and relatives'-rights groups are well organized across the country. In many cases, these adults have provided - at personal sacrifice - financial and emotional stability to children who can't count on their parents, says Edith Owen, who runs a support program for relatives raising children in Pierce County.

When parents cut off the grandparents, she says, "The person who gets hurt is the kid. Kids are denied their roots . . . and a connection with their family tradition and their heritage."

Originally, grandparents'-rights laws were written to protect grandparents who helped raise a child and then were kicked out of the child's life, says Joan Bohl, professor at Southwestern University School of Law in Los Angeles.

But lobbying groups, such as the AARP, helped shift the statutes to protect people simply because they were grandparents, she says.

What Washington's law said

Each state has enacted some kind of grandparent- or third-party-rights law. Washington's was probably the most liberal, says attorney Michael Bugni, a visitation-rights specialist.

Passed in 1972 and amended in the mid-'90s, the law gave any third party the right to petition for visitation with a child, if it was "in the child's best interests."

In a previous case, an appellate judge criticized the law, saying it would hypothetically allow a perfect stranger to petition for visitation with Bill Gates' children.

"But that would never happen - the case would be thrown out," says Bugni, who thinks judges have fairly interpreted the law.

Now, after the state Supreme Court's ruling, a nonparent can't ask a court for visitation rights, although attorneys disagree on what the court would do with a nonparent petition if a custody or dissolution action was pending.

"A parent has a fundamental privacy right to autonomy in child-rearing decisions, free from interference by the state," the state Supreme Court ruled.

That ruling left many nonparents unhappy.

"It's humiliating to be told you can't see your grandchildren. People who are child molesters get removed from a child's life, not good grandparents," says An McBride, a grandmother who has lobbied for grandparents' rights. McBride says her daughter hasn't allowed her to see her grandchildren for two years, even though she previously helped raise and financially support them. The daughter declines to comment.

What happens next

The U.S. Supreme Court is expected to hear arguments on the Troxel-Granville case (Granville was Tommie Wynn's last name when the case was filed) early next year.

"Everybody's holding their breath because everybody's hopeful that this decision will address their concerns, their needs. But it may not," says Mark Olson, the Troxels' attorney.

Even if the justices' decision breaks new legal ground, it may not fix broken families for kids. That, of course, is the grown-ups' job, and some experts say litigation only makes it harder.

Jenifer Troxel says that no matter what the court decides, "We're willing to take whatever steps are necessary for healing to begin."

Kelly Wynn says: "I know that Tommie and I are forgiving people, and we would always try to do what's best for the girls."

The Troxels last saw their granddaughters in May.

They asked to see them again in August, right after they appealed to the U.S. Supreme Court, says Tommie Wynn. For the first time in these long six years, she didn't respond.

Marsha King's phone number is 206-464-2232. Her e-mail address is mking@seattletimes.com

Copyright © 1999 The Seattle Times Company