Toronto Star

December 12, 1999

Solomon's dilemma


A landmark court case will weigh parental rights against the rights of grandparents. But what's in it for the children?

By Sarah Jane Growe
Toronto Star

IT WILL BE as delicate as the judgment of Solomon, and it will affect families all across the continent.

Will the mother of Natalie and Isabelle Troxel be ordered, again, to provide access to the parents of their father, who committed suicide on May 13, 1993? Or will the United States Supreme Court, which just agreed to hear the grandparents' appeal, side with the Washington state supreme court and rule that the mother has the absolute right to refuse?

Never before has a grandparent visitation case, either in the United States or Canada, reached such a high level.

``This decision is going to have far-reaching consequences for Canadian courts,'' says Toronto family-law specialist Paul Pellman. ``There is no doubt about it. It will affect the thought processes of all of our judges.''

The timing in this rapidly growing area of the law is perfect.

``Parents' rights are front-and-centre in Canada right now,'' says Michael Cochrane, another Toronto family lawyer.

Parliament is waiting three years to debate the recommendations of the Senate-Commons committee on custody and access, so discussions around this ruling will figure prominently in Ottawa's federal divorce-law reform, Cochrane predicts.

The case itself is a microcosm of the unresolved complexities of the modern North American family.

Tommie Granville, with three children of her own in 1988, hooks up with Brad Troxel. They never marry. She is pregnant with Isabelle, their second child, when they split in June, 1991.

Troxel goes to live with his parents, where his two little girls - Isabelle, born that December, and Natalie, born in November, 1989 - visit him regularly.

`I don't really give a damn how they solve this insofar as the Charter is concerned . . . . What I care about is what's best for these kids'
- Willson McTavish, Children's Lawyer for Ontario

Two-and-a-half years later, five months after Troxel's death, Granville cuts back on the grandparents' visits, asking Jenifer and Gary Troxel to play a less intrusive role while she builds a new life with Kelly Wynn, the man she plans to marry, and his two children.

The Troxels aren't happy with their ration. They ask for mediation. Granville refuses. Contact ends.

The grandparents seek legislated access in December, 1993, and obtain a temporary court order a few months later.

A year after that, a judge weighs in right down the middle. Acknowledging that contact with grandparents the girls know and love is in the children's best interest, he awards the Troxels more time than Granville offered. But, in deference to the needs of the new family, it is less time than the grandparents sought.

Granville - ``shocked that the court would interfere with our judgment as sound and responsible parents'' - appeals, objecting to the frequency and duration of the visits.

She argues that the state law giving ``any person'' the right ``at any time'' to petition the court for access to a child ``interferes with parents' constitutionally protected interest in child-rearing.''

Raising eight children, including one with her new husband, Granville asserts that Wynn's adoption of Brad Troxel's daughters in February, 1996, nullifies the paternal grandparents' right to petition for access.

Granville wins. On July 31, 1997, in a 2-1 decision, the Washington Court of Appeal strikes down the visitation decree.

The grandparents appeal. On Dec. 24, 1998, the Washington Supreme Court affirms that the access order is void and, in a 5-4 decision, strikes down the state law the Troxels had used to obtain it.

While the court agrees that the grandparents' visits are in the children's best interests, it also says the best interests of a child take a back seat to parents' rights, unless it appears the parents' decisions will jeopardize the child's health or safety.

Parents have a right to limit their children's visits with third persons, the court rules, and the Washington law that gives ``any person'' the right to petition for access interferes with the constitutionally protected interest of fit custodial parents to raise their children free of state interference.

On Sept. 28, the U.S. Supreme Court agrees to hear the grandparents' appeal. Arguments are to begin on Jan. 12.

The result will reach far beyond the Troxel family.

All 50 American states, troubled by rising rates of divorce, out-of-wedlock births, parental drug use, teen pregnancy, single-parent households and child abuse, passed laws between 1966 to 1986 allowing grandparents to petition, under various circumstances of family breakdown, for court-ordered access when it is in the best interest of the child.

Of late, though, many of these grandparent-visitation laws are being challenged by parents.

In the last six years, high courts in Georgia, Virginia, Tennessee and Florida have ruled against grandparents and in favour of parents and the sanctity of the nuclear family.

In the Florida case - startlingly similar to the Troxel decision a month later - the state supreme court was unanimous in overturning a lower court's visitation decree for the maternal grandparents of Kelly Von Eiff, whose mother died of cancer when the daughter was only 2.

The court said Kelly's father and adoptive mother had a fundamental right to raise the child and to decide who she may visit, without being second-guessed by a state judge.

``I hate to sound negative, but I really think (the ruling) is the end of grandparents' rights,'' said the Florida co-ordinator of the Grandparents United for Children' Rights organization.

But the Washington case, which overturns an access law much broader in scope than Florida's, puts the grandparent visitation laws in all states at risk, lawyers for the American Association of Retired Persons say.

``It is tantamount to saying children are their parents' property,'' says Mark Olson, the Troxels' Seattle lawyer.

No third party may seek access to children in Washington state, he adds, and all previous third-party visitation orders are likely invalid.

The pendulum has not swung that far in Canada, yet.

Grandparent representatives appeared before the Senate-Commons committee on custody and access last year, and its report last December said members were moved by their ``extremely compelling'' testimony.

The committee did not recommend giving grandparents what they sought - standing under the federal Divorce Act - saying that ``the idea of making grandparents automatic (or even almost automatic) parties to divorces has been seen as constitutionally problematic.''

`A child will not suffer if she has a loving family, even if all the grandparents are not involved'
- Becca Palmer, founder of the Canadian Coalition for Parental Rights

Grandparents currently have no standing in a divorce action and need a federal court's permission to make any application.

Discussion around Canada's federal divorce-law reform, however, is far from over.

The committee did go to some length to recognize the importance of the grandparent-grandchild relationship, saying it ``should not be disrupted without a significant reason related to the well-being of the child.''

It also went so far as to ask the provinces to consider amending provincial family statutes to include the grandparenting role in parenting plans and in the list of statutory criteria concerning the best interests of the child.

In Canada, it is the provinces that are responsible for custody and access in crisis situations other than divorce - including breakdown in common-law partnerships, death, family conflict and step-parent adoption.

Only Quebec has awarded grandparents legal status: ``In no case may the father or mother, without a grave reason, place obstacles to personal relations between the child and his grandparents,'' the province's Civil Code says.

Until recently, visitation laws in all the other provinces simply gave ``a parent or any other person'' the right to petition for access, just like the Washington law that was struck down.

But that law was the exception south of the border, where the majority of American states specify that grandparents in particular have the right to apply for court-ordered access. And Canadian grandparents' groups are lobbying the provinces for legislative changes to specifically identify grandparents in access orders.

Alberta did so in 1997, awarding grandparents in particular the right to apply for access, and in the same year, New Brunswick stipulated that the relationship between children and grandparents must be taken into account in the best interests of the child.

In Ontario, private member's Bill 27 set out grandparent-specific amendments to the province's Family Law Reform Act in 1996 and 1998, winning some non-partisan support before dying on the order table.

But as the dynamic of the family changes and reproductive technology expands the numbers of potential biological contenders for access (children can be conceived 16 different ways), Etobicoke North MPP John Hastings is having second thoughts about the bill he authored.

``I have to find a way that looks at all the support players, not just grandparents, before I go to the well again,'' says Hastings, who thinks the Alberta model may set a dangerous precedent of enshrining rights for one set of family members as opposed to another.

Willson McTavish, the Children's Lawyer for Ontario, is happy with the law the way it is.

``I think the law is wonderful for kids,'' says the official spokesperson for children caught in family disputes.

``Thank God, the next-door neighbour can apply for custody. Or any person. What's wrong with that? A grandparent is a person.

``Children are at such a disadvantage, they need everything in their favour so they can make it to be responsible adults and grow up.''

Ontario judges seem to be reflecting that sentiment.

Toronto lawyer Cochrane, who says our courts have a child-focused view, points to ``dramatic change'' in family-law courtrooms over the past decade: Judges who never used to consider grandparents are asking where they are, and grandparents' requests for court-ordered access are increasing.

``Parents have rights and responsibilities,'' says Cochrane, ``but those rights should not be exercised at the expense of the child.''

McTavish says courts should always have the choice of ordering access over parental objections, if it's in a child's best interests. And the decision should not be based on the Constitution, even though the Canadian Charter of Rights could be used to strike down Ontario's access law.

The dissenting judges in the Washington Supreme Court said much the same.

``Parents' rights are not absolute and must yield to fundamental rights of the child or important interests of the state,'' they wrote, adding that the deprivation of access to a significant pre-existing relationship is ``cruel'' and the degree of intrusion on the family of visits outside the home ``relatively minor.''

In Ontario, lawyers say there is a strong presumption in the courts that children should have contact with the extended family on both sides. But grandparent access is a right of the child and not the grandparent and judges will not order contact if it places a child in bitter conflict with his parents.

And there is the rub.

``A child will not suffer if she has a loving family, even if all the grandparents are not involved,'' says Becca Palmer, who founded the Canadian Coalition for Parental Rights last April to fight ``unwanted visitation'' by grandparents.

``A child will suffer, however, if you seek court-ordered access. Children can feel the stress and tension that these situations cause.''

Palmer's organization has joined forces with the Coalition for the Restoration of Parental Rights south of the border to support Tommie Granville-Wynn.

Palmer and about 50 other parents will be attending a rally planned on the steps of the U.S. Supreme Court on Jan. 12.

``My clients have been hauled across the country to defend their right to make a perfectly reasonable decision,'' says Granville's lawyer, Catherine Smith.

``It's the day-to-day parental relationship that needs to be protected. That may not always be filled by biological parents. But that is the family unit that should be protected.''

Smith insists that ``Wynn is raising those kids'' and that the adoption of the Troxel girls was not a tactic, though the U.S. parental rights' coalition suggests adoption as a way of fighting grandparents' access applications.

Court orders, she notes, don't exactly create a happy extended family situation.

So what will create a happy extended family situation for Brad Troxel's daughters?

Do we suggest, as King Solomon did, cutting each of them in half to see which of the warring adults loves them enough to relinquish their claim?

Modern courts don't work that way.

If the U.S. Supreme Court is willing to enter into the fray of the family and be a children's rights' advocate the grandparents will win, Pellman says. But if the top court takes a conservative, non-interventionist approach, the parents will be victorious.

How do the children win? In Ontario, McTavish is the one to ask.

His answer: ``The children say, `Stop the fighting.' They tell me that. They tell us that time and time again. `Just wave your magic wand Mr. Children's Lawyer. Stop the fighting. Stop, stop, stop the fighting.'

``So I don't really give a damn how they solve this insofar as the Charter is concerned or the Bill of Rights of the United States of America or the Washington law or the Ontario law. I don't care. What I care about is what's best for these kids.

``If the children can see their parents and their grandparents and have a relationship to their advantage, it doesn't have to be perfect. It can be structured - if it works for the children and it's predictable, why not? It provides some security and predictability. Why not?

``The problem is you wouldn't want to put those poor little gaffers into the middle of a meat grinder.

``Maybe it has to be put to a test. The greatest act of love is to give up completely. Didn't Christ say that, or somebody?''

Sarah Jane Growe's Grand People column appears alternate Saturdays in the Life section.

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