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In a rare foray into family law last Monday, the Supreme Court went through an amicable split of its own: The justices needed six opinions to reach a decision in Troxel v. Granville. Yet they found harmony on preliminary constitutional principles, and on going slowly. The Court seemed to appreciate the complexity of determining when judges may override parents’ decisions about who will spend time with their children — especially when loving relationships are at stake. Because the case was extreme and the holding narrow, the June 5 ruling in favor of the parents leaves the states a lot of room to maneuver. For those in families outside the two-married-parents model — including families headed by lesbian and gay couples (but also those with stepparents or other caregivers) — Troxel provides hope of stability. One of the ironies of being excluded from the legal constructs erected for married families is that gay and lesbian families have received a head start in learning when the law goes too far in reifying or discounting parental autonomy. On the one hand, gay men and lesbians who are parents in every sense of the word except for the biological or adoptive connection have historically been considered “legal strangers” to their children. If the relationship between the adults ends by separation or death, the ex-partner or surviving relatives can play the biology trump card, and the child too may be lost. On the other hand, hostile courts are still limiting or even taking away the parental prerogatives of legally recognized lesbian and gay parents in favor of nongay relatives. That engenders strong support for meaningful protection for parental liberties. Contrary to press reports trumpeting Troxel as an elevation of “parents’ rights,” the decision reflects a calibrated approach to measuring parental liberty interests — one that is flexible enough to weigh other interests against parental claims and to accommodate strong bonds. While the Supreme Court scolded Washington state for letting a judge play parent, it did not say that people who really do have that role in a child’s life can be cast out with no recourse. Justice Sandra Day O’Connor’s narrow lead opinion (for three other justices), read in tandem with Justice David Souter’s limited concurrence, holds that judges may not simply substitute their own views of a child’s best interests for those of a legal parent in deciding whether to order visitation. Rather, since fit parents are presumed to act in their children’s best interests, judges must take the parents’ views into account and weigh them appropriately. This baseline ruling — on which, it must be said, the Court can build a jurisprudence extending in almost any direction — found near-unanimity on the Court and sufficed to decide the case before it. (The Court’s splits in Troxel had more to do with ongoing skirmishes over the standards for facial challenges to statutes and the substantive dimensions of the due process clause.) More striking in Troxel is the apparent broad consensus that, beyond this minimum, the constitutional protections for parental autonomy are neither rigid nor insurmountable. There is a vast difference between the requirement that a legal parent’s views be given “material weight” or “at least some special weight,” as the plurality demands, and the virtual parental veto, absent harm to the child, that had been guaranteed by the Washington high court and assumed to be the standard by other courts. Indeed, no justice embraced a showing of harm as the only route to state intervention. The possibility was reserved by some justices and dismissed by others. Only Justice Clarence Thomas committed to strict scrutiny protection for parental autonomy if the right is to have substantive due process protection at all, but he did not endorse such protection. The Court seems to have had an epiphany of sorts about American families that left it skeptical of categorical approaches and absent any pretense of having all the answers. Its analysis leads with a demographic reality check, including a review of the statutes in every state that seek to protect children’s ties to nonparents. Markedly absent is any diatribe about limiting constitutional protection to particular family forms. Rather, the search is on for a constitutional standard flexible enough to accommodate the “changing realities of the American family,” while still giving legal parents their due. Seven justices agree that what is needed is a careful, incremental elaboration of the right of parental autonomy. And that elaboration should come chiefly from the state courts in a fact-specific manner. It takes only hard human experience to learn the many reasons why a parent would cast someone out of, or limit someone’s involvement in, a child’s life. Some reasons are relatively benign. In Troxel, there was the practical problem of accommodating expansive visitation requests by multiple relatives when a newly married couple brought together,”Brady Bunch”-style, six children at home. Some reasons are fiercely protective, as when a mother seeks to shield her children from a battering boyfriend or a father wants to prevent his own emotionally abusive mother from scarring the next generation. But some are — let’s face it — selfish or vengeful. In divorce court, psychic payment is often extracted by painting the recent love of one’s life as a horned Satanic messenger who can no longer be trusted around children. Only sometimes is this true. And lesbian and gay couples “divorcing” outside the legal system can claim no higher ground. A lesbian mother can easily persuade herself that a child’s best interests are coincident with her own desire never to lay eyes on an ex-partner again. Precisely because they mirror heterosexual divorces without benefit of the statutory schemes that provide a legal safety net, cases involving gay and lesbian couples who raised children together for many years and then broke up will most likely flesh out the contours of Troxel. When may a court look beyond what the legal parent wants and protect the child’s relationship with his de facto parent? One message from the Supreme Court’s decision, consistent with its states’ rights bent, is that there may be many ways to answer that question. The Troxel opinions cite favorably (if provisionally) statutes asking if visitation was unreasonably withheld, if it would interfere with the legal parent’s relationship to the child, or if a substantial relationship with the petitioning adult already existed. Justice Anthony Kennedy hypothesized a continuum in which the test changed based on the nature of the relationship, so that a stranger would have to demonstrate harm to the child to obtain visitation, but a de facto parent need show only that visitation serves the child’s best interests. Several courts have adopted a similar analysis in gay and lesbian visitation cases. When read through the tea leaves of Troxel, these common law standards would seem to survive unscathed. And such standards are not limited to gay and lesbian parents. Parallel tests are found in many visitation statutes. They tend to impose two principal threshold requirements before a court may adjudicate a visitation claim. First is the existence of a relationship between the child and another person that is of a depth and quality to set it apart from the usual run of loving relationships. Such exceptional connections, usually with consistent caretakers or de facto parents, provide a justification for the state’s interest that separates these cases from the majority where, in O’Connor’s language, “there will normally be no reason for the State to inject itself into the private realm of the family.” Second is a demonstration that the legal parent consented to and fostered the significant relationship. In other words, there must be evidence that the legal parent thought the relationship was in her child’s best interests and exercised her autonomy to allow it to deepen — which gives the state reason to question whether its termination was truly motivated by concern for the child. When these two factors are present, and when maintaining the relationship serves the child’s interests without jeopardizing the legal parent-child bond, nothing in Troxel commands that the whims of the legal parent be ratified by a court. To the contrary, the Supreme Court seems to recognize that the states imposing such rigorous but workable tests may have a better handle on what the Constitution and children’s welfare truly requires. Patricia M. Logue is supervising attorney of the Midwest regional office of the Lambda Legal Defense and Education Fund. Ruth Harlow is Lambda’s deputy legal director. They co-authored the joint amicus brief for Lambda and Gay and Lesbian Advocates & Defenders in Troxel v. Granville.

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