The Washington Post

Grandparents’ visitation rights case misses boat

   By William Raspberry

   Like a skeptical test-taker, I get nervous when the answers seem too obvious. What subtle point am I missing? What great principle am I ignoring? Is there a “gotcha” hiding in those seemingly plain words?

   So what am I missing in Troxel vs. Granville, the case of the jilted grandparents, that was argued before the U.S. Supreme Court last week?

   Tommie Granville Wynn thought her daughters were spending too much time with their grandparents — the parents of the children’s late father, to whom Wynn was never married. The grandparents, Jenifer and Gary Troxel, wanted to spend more time, not less, with the girls. And, because they live in Washington state, they took recourse to a peculiar state law that allows any person to seek time with a child if a judge finds it in the child’s best interests.

   Wynn thought the law too invasive of her rights as a mother, and the state Supreme Court agreed. The U.S. Supreme Court is considering the grandparents’ challenge of that ruling.

   My plain-words reading of the question is: Do parents have the right to raise their children? My too-easy answer is: Of course.

   Sure, I know there are rational exceptions to this principle. When parents are at odds with one another, or are physically, morally or mentally unfit, the best interests of the child may require that the government step in. Likewise if ostensibly fit parents do illegal or bizarre things to their kids — like sending them out to play naked in the streets or refusing to educate them or teaching them that bathing is against the will of God.

   But none of these things was present in this case. Nobody has charged Wynn with being unfit to raise her girls. Apparently she just wants to get on with her life with her new husband (whom she married after the suicide of the girls’ father) without too much interference from the Troxels.

   Ah, but there’s nothing wrong with the Troxels, either. By all accounts they and their granddaughters spend countless fun-filled hours together. Aren’t children better off if they have the benefit of an extended family?

   As a general proposition, the answer is obvious. Of course they are. But what if their own mom thinks otherwise? That — not the transformation of the American family, not questions of biology, not the heartbreak of two doting grandparents — is the nub of the matter: Who gets to answer the question?

   If you stipulate the mother’s parental fitness (as both sides seemed to do in last week’s questioning by the justices) then how can you insist that she bow to the grandparents’ desires — or even that she has to explain why she chooses not to? And how in the name of family sanctity and common sense does a state court get into it? This is not a custody fight.

   As I see it, this is one of those unfortunate affairs in which the good-guy/bad-guy dichotomies we so love don’t apply. Everybody’s a good guy. The only two aspects of the matter that strike me as bad both have to do with the law.

   The first is the state Legislature’s presumptuousness in decreeing that any third party can claim a right to spend time with children. No need to show the child is in danger, or the parent incompetent — no threshold of any sort. All it took was a finding by a judge that it was in the best interests of the child.

   It takes no imagination to see where such intrusiveness could lead — particularly in the case of poor or unorthodox families (sect members, political outsiders, same-sex couples). It’s a good thing the state Supreme Court found that law constitutionally flawed.

   The other legal problem, though, is the notion that such an intensely personal and familial matter as where the children should spend their time should be subject to the law at all.

   So what should the Troxels have done? The answers that pop into my head include “negotiate,” “bribe,” “compromise,” “try to prove themselves,” “enlist allies,” “beg,” or even “take no for an answer.”

   But that’s too easy. What am I missing?

William Raspberry writes for the Washington Post Writer’s Group, 1150 15th St. NW, Washington, DC 20071. The e-mail address is willrasp@washpost.com

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