National Post

Page URL:

Thursday, January 13, 2000

U.S. Supreme Court considers rights of grandparents
Mother restricts access: Dozens of advocacy groups want in on visitation case
Ben Fenton
The Daily Telegraph, with files from Reuters and Tom Arnold, National Post

Rick Bowmer, The Associated Press
Jenifer and Gary Troxel leave the U.S. Supreme Court in Washington yesterday. The Troxels are trying to regain the right to see their grandaughters, Natalie, 10, and Isabelle, 8, against the objection of the children's mother, Tommie Granville Wynn.

WASHINGTON - The U.S. Supreme Court is being asked to rule on the role of the grandparent in a case that could rewrite America's family law.

In a case that began before the court yesterday, two grandparents argue that they should have the right to visit their two granddaughters, even though their son, the girls' father, is dead. The girls' mother has attempted to restrict access.

The case before the Supreme Court involves Gary and Jenifer Troxel, from Anacortes, Wash., and their grandchildren, Natalie, 10, and Isabelle, 8.

The Troxels' son, Brad, and the girls' mother, Tommie Granville, began living together in 1989. The younger Mr. Troxel committed suicide in 1993, two years after separating from Ms. Granville.

For several months, the Troxels visited their grandchildren regularly, but Ms. Granville became unhappy with their desire to have the girls at their house overnight. In court papers, she said she felt the couple were treating Natalie and Isabelle as substitutes for their son.

The mother later married Kelly Wynn, who adopted the two girls in 1996.

Court proceedings were started by the Troxels in December, 1993, and since then the case has been before a series of tribunals. In 1995, the Troxels were awarded visitation rights of one weekend each month, one week during the summer and four hours on the birthday of each girl.

Catherine Smith, a Seattle attorney arguing on behalf of the mother, said the courts could intervene in such a dispute only if the health and safety of the children were in danger, and they faced harm.

"The parent, by definition, has the right and obligation to make any day-to-day decisions for the child," she said, adding that courts should not get involved in "micromanagement."

Ms. Smith said the case began because the grandparents wanted to see the children every two weeks, instead of once a month.

In Canada, grandparents are not afforded specific legal rights to gain access to their grandchildren. However, they can go to court as a designated third person, the same as a friend, babysitter, aunt or uncle, to obtain access. Many grandparents have taken the issue to court and won.

Controversial proposals to change Canada's divorce law, aimed at changing three areas of the law affecting children -- custody, access and support payments -- were approved last year. The changes would give divorcing mothers and fathers the legal right to an equal role in raising their children. They would also give extended family members, particularly grandparents, the right to ask a court for access to children.

However, Anne McLellan, the Justice Minster, has said the issue requires further study.

In the American case now before the courts, the respective causes of the parents and grandparents have attracted support from dozens of advocacy groups. Close to 50 organizations have applied to be considered "friends of the court'' so they can be allowed to be represented in Washington.

The American Civil Liberties Union argues that the freedom of the girls' mother to raise her children without interference from the state has been infringed. The American Association of Retired People, however, argues that the grandparents should have visitation rights because the children are of great importance to their lives.

The ruling is expected in July and could have ramifications for every American family.

Six of the nine justices hearing the case have grandchildren themselves and one, Clarence Thomas, a conservative jurist, was raised by his grandparents.

During arguments yesterday, Chief Justice William Rehnquist cited a long line of court rulings that parents have the overriding right to decide how their children will be raised.

Judge Rehnquist expressed concern that if the Washington state law was upheld, it would allow "a great-aunt ... to come in and say, 'I want to take her to the movies every Friday."'

Copyright © Southam Inc. "National Post Online is a production of Southam Inc., Canada's largest publisher of daily newspapers."