Court grants cert on grandparent visitation

[Sandy Levinson]

It is hard for me to see five votes for the proposition that parental rights over their children invalidate a state determination that children might, under some circumstances, be better off having some relationship with their grandparents.  To invalidate this would require adoption of a remarkably strong notion of "fundamental rights" without any warrant in the text or, I should think, in the history of 1791 or 1868.  No one who signed Scalia's opinion in Michael H. should have any patience with the argument.

Anyway, these are my preliminary, exceedingly Holmesian (i.e., I only predict, I don't assess) observations.

Sandy

>>> "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU> 09/29/99 03:08PM >>>
        Any thoughts on the likely outcome or reasoning?



(from WLB-SCT:)

Family Law: Constitutionality of state nonparent visitation statutes --
Certiorari Granted.

   Granting certiorari, the United States Supreme Court has agreed to
consider a Washington case addressing the rights of third parties, including
grandparents, to petition for visitation rights with a minor child under
state law. The Washington Supreme Court had held that the Washington
statutes at issue, which addressed the visitation rights of nonparents, gave
grandparents standing to petition for visitation rights. The Washington
Supreme Court went on to conclude, however, that the statutes were
unconstitutional, inasmuch as they impermissibly interfered with parents'
fundamental interest in the care, custody, and companionship of their
children. The statutes contained no threshold requirement of a finding of
harm to the child as a result of the discontinuation of visitation with a
nonparent, the Washington Supreme Court found, and did not require the
petitioner to establish that he or she had a substantial relationship with
the child. (Case below: In re Custody of Smith, 969 P.2d 21 (Wash. 1998).)

   To read the Washington case, use FIND with the citation 969 P.2d 21.