Third Party Visitation Statutes: Society’s Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute

By: Beth Sherman

Volume 4.1


Throughout United States history, the common and legal understanding of what constitutes a parent has evolved.[1] However, even with these changes in belief and definition, certain traditional views about the family structure have remained intact. For example, the concept of being a parent as a constitutional right, separate and apart from the state, has not fundamentally changed with the times.[2]In fact, a long line of cases still support the contention that a parent has a Fourteenth Amendment right to determine what is in the best interests of his or her child.[3]

However, with the dramatic change in today’s understanding of “family,” [4] new societal values are creating a tension between this long protected liberty interest and the developing view that what constitutes a family involves more than the nuclear unit.[5] The result has been new legislation reflecting society’s desire to expand the number of people holding recognized interests within the family unit.[6] Nonparental visitation statutes have become the most popular legislative method for increasing these third party rights.[7] Present in all fifty states,[8] these statutes recognize that a nonparent has an interest in maintaining a relationship with a child with whom they have formed a connection.[9] In addition, the statutes recognize that, for the most part, a child holds a considerable interest in maintaining a relationship with the nonparent as well.[10] Therefore, there are two main issues concerning the nation regarding third party visitation statutes. First, whether these nonparental visitation statutes are really serving a legitimate function.[11] Second, if their function is indeed legitimate, whether they constitute a legally justifiable governmental intrusion into the family unit.[12] Unfortunately, the answers to these questions have been left unclear by the United States Supreme Court.[13]

This Note begins by introducing the strong historical support for a parent’s fundamental liberty interest, protected by the Fourteenth Amendment’s Due Process Clause, to control the upbringing of his or her own child. It also examines the limitations placed on that right.[14] Section two illustrates the need to balance these two perspectives when analyzing the current debate over nonparental visitation statutes. Section three addresses how the case of Troxel v. Granville[15] reached the United States Supreme Court and the implications of the Court’s decision. Section four focuses on New York State by considering its nonparental visitation statutes,[16] the effect of the Troxeldecision on New York third party visitation cases,[17] and the likelihood that, if challenged, New York’s current nonparental visitation statutes would survive constitutional review.[18] Finally, section five argues that mediation can only truly reduce the legal and emotional conflicts that exist over third party visitation [19] if third parties are first provided with statutory standing.



A.       Meyer v. State of Nebraska[20] and Its Progeny: Cases Supporting a Parent’s Fourteenth Amendment Right to Control the Upbringing of His or Her Child


Meyer v. State of Nebraska is an early case supporting the contention that a parent has a Fourteenth Amendment Due Process right to control the upbringing of his or her child.[21] In Meyer, a teacher defied a criminal statute by instructing a student in a foreign language when he had not yet passed the eighth grade.[22] The teacher’s conviction was challenged and later reversed as unconstitutional by the United States Supreme Court. [23] Although the Court recognized a state’s interest in promoting civic development, it held that Nebraska’s statute was too arbitrary to survive constitutional review when it was balanced against a parent’s fundamental right to control the education of his or her child.[24] Therefore, Meyer affirmed through substantive due process the already present societal belief that parents have a constitutional right to raise their children as they see fit.[25]

Other cases brought before the United States Supreme Court provide support for this constitutional right of parents to “parent.”[26] In Pierce v. Society of Sisters,[27] a statute requiring students to attend only public schools was challenged. Held unconstitutional, the United States Supreme Court reasoned that state regulation over a parent’s choice for his or her child’s education “…unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”[28]

While Meyerand Pierce provide foundational support for the claim that parents have a well-established fundamental right to be the ultimate decision-makers for their children, the Supreme Court inParham v. J.R.[29] provides the oft cited reasoning behind this parental right. In Parham,[30]institutionalized children brought a class action suit challenging a statute which permitted their parents to institutionalize them, while children, against their will. The United States Supreme Court held the statute constitutional based upon the “natural bonds of affection” parents have for their children.[31] The Court contended that historically, parents have been perceived as acting in the best interests of their children.[32] Therefore, the legislature’s presumption that parents will typically act in their children’s best interests, was reasonable when the legislature formulated the statute.[33]


B.       The Broad Protection Afforded to Parental Rights Under the Fourteenth Amendment is Not Unlimited

The 1944 Supreme Court case of Prince v. Massachusetts[34] demonstrates that, although there is a strong constitutional right to raise one’s child without state interference, the right is not unlimited. InPrince, a child’s legal guardian was criminally charged for defying a child labor statute which prohibited any person from aiding a minor violating the law.[35] Although the Supreme Court viewed the guardian as the child’s parent,[36] it still found the statute constitutional and the guardian in violation.[37]Therefore, while a parent does have a fundamental liberty interest in directing the upbringing of his or her child, the state may still limit the degree of parental freedom in areas that may otherwise adversely affect the child’s welfare.[38]

The limitation demonstrated in Prince, derives from the state’s right to regulate under its parens patriae power:

The parens patriae doctrine allows a state to protect its quasi-sovereign interests in the ‘health, comfort, and welfare of its citizens.’ The doctrine of parens patriae, literally ‘parent of the country’ comes from English common law…. The state’s parens patriae power thus fits within the state’s police power ‘to regulate public health and safety, maintain the peace, and provide for the general welfare.’[39]


This state power is balanced against a parent’s fundamental right to control the upbringing of his or her child. Although a parent is granted broad discretion,[40] this parens patriae power prevents the parental right from being absolute.[41] Therefore, the first issue is whether these nonparental visitation statutes are a constitutional use of the state’s parens patriae power since their intended purpose is to prevent a parent from behavior which adversely affects his or her child’s health or general welfare.[42] Second, if these statutes are a constitutional use of the state’s parens patriae power, the issue is then whether the state’s interest is great enough to outweigh the parent’s constitutional right to control the upbringing of his or her child. [43]


C.       The Extent of a Grandparent’s Right to Obtain Court Ordered Visitation With His or Her Grandchild


As stated in the Columbia Law Review,

At common law, grandparents, who were denied access to their grandchildren by the grandchildren’s parents had no recourse to the judicial system. Courts generally took the position that judges may not interfere with parents’ decisions about how to raise their children, and that ‘the obligation ordinarily to visit grandparents is moral and not legal.’[44]


This created the illogical scenario that a grandparent could more easily obtain custody of his or her grandchild than be granted visitation over the parent’s objection.[45] However, as society began to place a greater importance on the role of grandparenting, legislators and other political leaders launched a concerted effort to expand grandparental rights.[46] One result was the promulgation of third party visitation statutes specifically providing grandparents with standing to seek court ordered visitation.[47]

The recent trend[48] to expand nonparental visitation statutes for grandparents is motivated by several factors.[49] First, as part of a strong political lobby, grandparents have their interests taken quite seriously by the legislature.[50] Second, grandparents are living longer today than ever before, thus creating a larger number of individuals interested in this issue.[51] Third, today’s grandparents frequently take over what has traditionally been the role of parents.[52] As a result, grandparents may legitimately have a greater interest in maintaining a relationship with their grandchildren than ever before.[53]


D.       The Dilemma For Other Third Parties Seeking Visitation Rights


Historically, the rights of third parties, other than grandparents, have been even more limited.[54]Although some states recognize sibling rights regarding visitation, [55] many other third parties have never been recognized as holding any legitimate legal relationship to the child.[56] Groups desiring such recognition may include, but are not limited to, step-parents, siblings and other relatives, foster parents, prospective adoptive parents, and biological parents’ nonmarital partners.[57] In response to these societal changes, the interests of these groups are sometimes discussed in court opinions.[58]However, for now, the lack of historical, precedential, and statutory support still makes most claims by these third parties a near certain defeat.[59]

Although there is far less support for non-grandparent third parties seeking visitation, legal and political lobbying is now underway to give these individuals similar judicial and statutory recognition.[60] One argument in favor of these statutes is simply that it is in the child’s best interest to have these individuals permitted visitation.[61] Advocates contend that the changing nature of society has not only created a new and more active role for grandparents, but it has also incorporated new people into the lives of children.[62]




All fifty states possess some form of a nonparental visitation statute.[64] However, the constitutionality of many of these statutes has come into question following the decision of Troxel v. Granville.[65] The United States Supreme Court held in Troxel that, as applied, Washington’s nonparental visitation statute[66] was an unconstitutional infringement upon a parent’s fundamental liberty interest as guaranteed by the Fourteenth Amendment.[67]


A.       Washington’s Nonparental Visitation Statute Was Determined By the United States Supreme Court to Be Unconstitutional As Applied


Washington received the most attention for its nonparental visitation statute when the case of Troxel v. Granville was appealed all the way to the United States Supreme Court.[68] Although Troxel was a family case, the Supreme Court still granted certiorari, thereby demonstrating the high degree of national concern regarding this issue.[69]

In Troxel, the grandparents (“Troxels”) petitioned the Washington Superior Court to obtain a court ordered right to visit their grandchildren over the mother’s (“Granville”) objections. The Troxels sought relief under the following Washington statute, which provided in pertinent part that:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.[70]


The Troxels claimed that they should be granted court ordered visitation because, among other reasons, it was in their grandchildren’s best interests to continue with a visitation schedule similar to the one that had existed before their father’s suicide.[71] In addition, the Troxels argued that they had always maintained an important relationship with their grandchildren.[72] In her defense, Granville stated that she had not denied her children any visitation with their grandparents, but had merely limited the amount.[73]

The United States Supreme Court held the Washington statute regarding third party visitation rights unconstitutional as applied.[74] The Court gave particular weight to the facts that the mother had not denied the grandparents visitation entirely[75] and that the trial court had made a presumption in favor of the grandparents rather than the fit parent.[76]

However, while this decision may provide the impression that grandparents do not have a claim for visitation above the objections of a fit parent, that would be a mischaracterization.[77] In fact, several aspects of the Troxel decision leave its precedential value, regarding parental decisionmaking, in serious question. [78] First, the opinion was written merely as a plurality.[79] Second, the plurality did not hold the Washington statute to be facially unconstitutional, but rather unconstitutional as applied.[80] Finally, each opinion, and there are six, provides a different argument about the merits and demerits of this case and other nonparental visitation statutes in general.[81] Therefore, the Troxel decision provides no clear rule for state legislatures to follow when attempting to formulate a nonparental visitation statute that avoids unconstitutional infringements upon a parent’s liberty interest.[82]


B.       Constitutional Concerns Regarding the Expansion of Third Party Rights Provided By Nonparental Visitation Statutes


Although every state has some form of a nonparental visitation statute, several of these state statutes, like in Washington, already have been challenged.[83] The claim is that these nonparental visitation statutes allow third parties to unconstitutionally intrude, in several ways, upon the well-established fundamental right of a parent to control the upbringing of his or her child.[84] One argument is that these statutory expansions allow trial judges to substitute their beliefs, of what is in the best interests of the child, for those of a fit parent.[85] A second contention is that some of these statutes are so broad that they permit suits by any person at any time, even if they had no substantive relationship with the child.[86] A third major criticism is that these statutes, with their open standing requirements, enable petitioners to drag parents into court at any time, even if the claim lacks any real merit.[87]




A.       The Uncertain Implications of the TroxelDecision in New York State


It is difficult to determine the future status of New York’s nonparental visitation statutes in the wake of the Troxel decision.[88] New York’s visitation statutes confer standing to grandparents[89] and siblings[90] before proceeding to a best interests inquiry.[91] However, the New York Court of Appeals has not addressed this issue since the Troxel decision. In addition, only a small number of New York’s lower courts have addressed the subject. Therefore, New York does not have firmly established case law on the topic of third party visitation.[92]

After the Troxel ruling, New York’s nonparental visitation statutes appear to be facially constitutional.However, counterarguments exist.[93] For example, the petitioners denied standing in Troxel were grandparents who had maintained precisely the close relationship that the New York grandparental visitation statute was designed to protect. If the Troxels were enjoying unconstitutional protection, how can New York’s grandparents statute be constitutional? The answer is that the implication of the Court’s decision to limit its holding cannot be underestimated.


B.       An Explanation Supporting the Likely Constitutionality of New York’s Two Nonparental Visitation Statutes


Although the Court denied grandparents standing in Troxel v. Granville, there are several significant differences between the Washington statute as applied in Troxel, and the nonparental visitation statutes in New York. First, the plurality specifically stated that this decision should not be viewed as determining whether nonparental visitation statutes in general are, or are not, constitutional.[94]Second, the decision did not hold the Washington statute, a statute much broader than either of the New York statutes,[95] to be unconstitutional on its face.[96] Third, the Court stated that the trial judge erred by substituting his own opinion for that of a fit parent without giving the parent’s decision “special weight.”[97] Fourth, the plurality acknowledged that Granville did not deny the Troxels any visitation rights, but was merely limiting them.[98] Fifth, the Troxel decision did not address N.Y. DOM. REL. §71 (2001) at all. In fact, the court’s judgment only pertained to Washington’s broad nonparental visitation statute’s unconstitutional application to specific parties. In contrast, N.Y. DOM. REL. §71 is a specific nonparental visitation statute for siblings.

Since there is no clear-cut application of the decision, the effect of the case on New York families is indeed minimal. By examining the few lower and appellate court decisions in New York following the Supreme Court’s decision, it is evident that Troxel lacks strong precedential value.[99] Courts rely upon Troxel when it aids a favorable outcome and are able to easily distinguish the decision when it does not.[100] As a result, the question of how to handle family problems in this area remains unresolved.




A. Definition.

Mediation has been defined as “assisted communications for agreement”[101] or “a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement.” It is an extension of the parties own negotiations and is sometimes referred to as “supercharged negotiation.”[102] The mediation procedure, although less structured than a courtroom, still follows defined rules. First, the mediation process is both voluntary and non-binding.[103] It is not the job of the mediator to make a final determination, but rather to aid the parties in formulating their own solution by identifying the problems and assisting with the development of a solution.[104] Since mediation is private and confidential,[105] the results are inadmissible if there is a subsequent court proceeding.[106] In addition, each party may obtain legal counsel for the mediation proceeding.[107] Although the actual format for these proceedings can vary, most mediators use caucuses or private and confidential meetings between a party and the mediator.[108] During these caucuses, the mediator examines each party’s position and discusses with them their various options in order to obtain a settlement.[109]

Mediation is different from other forms of alternative dispute resolution (“ADR”) in that it is not determinative.[110] In fact, the mediator is to refrain from providing even an indication of a likely legal outcome.[111] In contrast, arbitration, another common form of ADR,[112] is much more similar to a trial.[113] Arbitration is therefore more frequently used to resolve disputes between discrete parties than between individuals with personal relationships.[114] In addition, thirty-five states have adopted the Uniform Arbitration Act, making the arbiter’s decision potentially enforceable under state and/or federal law.[115]

B. Why Do People Advocate Mediation?

One simple argument in favor of mediation is that it works. According to Mr. Roberts, in his article titled, Why Mediation Works, 85% of all mediations result in a settlement.[116] However, there are other aspects of mediation, enumerated by Mr. Roberts, that also serve to make mediation a more attractive option than litigation. First, litigation is generally more expensive than mediation.[117]Second, mediation arguably provides the opportunity for a more rapid settlement.[118] Third, the purpose of mediation is to achieve the parties’ own solution to their problem. [119] Fourth, mediation provides the parties with an important sense of empowerment by allowing them to craft their own solution.[120] Fifth, mediation allows parties to either preserve a continuing relationship or, if termination is necessary, to do so in the most amicable way.[121] Sixth, mediation can allow for a more detailed and instructive solution.[122] Seventh, mediation facilitates the creation of an agreement or a win/win outcome.[123] Eighth, parties can use mediation as an opportunity to “test market” their settlement proposal.[124] Ninth, although litigation is at times motivated by a desire to inflict pain or injury, such emotional reactions often fade over time.[125] Mediation, therefore, provides an opportunity to express one’s position, under the other party’s focused attention, without the detrimental effects of litigation.


C. Why Mediation Is Especially Suited to the Family Law Context

Following the promulgation of the 1984 Model Standards and the 1984 ABA Standards, interest infamily mediation grew as well.[126] The motivating principle was that family law, especially divorce related issues, is particularly suited to the mediation process.[127] In response to these claims, the Symposium on Standards of Practice (“Symposium”) created thirteen standards, each with subparts, to provide models for how family mediation must, should, and can be handled.[128] The Symposium developed these models over a period of time and with the aid of several experts in the field.[129]However, even with the considerable effort made by various professionals, the model standards are intended to act as merely a first guide in an ever-evolving field, not as a final solution to a complicated problem.[130]

In general, litigation is a slow-moving and expensive process.[131] However, within the family context, litigation often has additional problems.[132] The issues are further complicated when the dispute involves children.[133] Therefore, since the presumed goal of both the parent and the petitioning nonparent is the best interests of the child, any court action that has a negative impact on the child should be counter to the goals of either party.[134] In other words, the goal here is often different from that of other forms of litigation. Rather than a desire to win at almost any cost, both parties should be unwilling to risk the adverse consequence of injury to the child, even if it means sacrificing victory.This common interest makes the disputants particularly strong candidates for mediation.




A court ordered solution, prior to a trial over child visitation, could help stem the harmful effects of litigation within the family unit.[135] However, recommending mediation as a solution to these competing interests is premature if a claimant does not have legal standing to petition for visitation.Although New York’s nonparental visitation statutes are, in particular, likely to survive a constitutional challenge,[136] the national movement to expand these statutes to include individuals less traditionally viewed as “family,” is the only way to truly provide third parties with the bargaining power necessary to make mediation a viable solution for their disputes.[137]


A. Mediation Without Any Statutory Standing Is a Premature Solution

Mediation could provide a potential solution for all parties if each had a legitimate legal claim. For example, mediation’s non-binding nature allows parents to maintain their rights in court as the ultimate decision-makers for their children. At the same time, it provides third parties with an alternative to arguing their legal grievances in court, where legal precedent is not likely to be in their favor.[138]However, there is little incentive for parents to accept mediation as a reasonable alternative when they are aware that an opposing party does not even have standing to make a legitimate threat to bring suit.


B. Analyzing the Proposition Provided in In the Aftermath of Troxel v. Granville: Is Mediation the Answer? [139]


In his article, In the Aftermath of Troxel v. Granville: Is Mediation the Answer?, author Michael Ratner discusses the pros and cons of court-ordered mediation as a solution to the conflicts of grandparental visitation statutes.[140] If New York’s nonparental visitation statutes for grandparents and siblings are affirmed as constitutional, court-ordered mediation, as provided for in Florida, may be the best solution.[141] However, while Ratner’s proposition of mediation as an intervening step prior to litigation is, , a positive suggestion for the field of family law in general,[142] mediation is still not a good enough alternative for those parties who do not have statutory standing to seek suit.[143] The only legitimate solution for these parties is the expansion of nonparental visitation statutes. Since broad statutory standing was rejected in Troxel,[144] it is possible that the only constitutional method to expand these statutes is by specifically enumerating the groups which state legislatures believe possess a legitimate interest in visitation.


C. A Look at the Future

There is case law,[145] legislative support[146] and strong public sentiment[147] behind the movement for more expansive nonparental visitation statutes.[148] The opinion in Multari v. Sorrell[149] is reflective of the judiciary’s changing view in this area. In Multari, the petitioner had developed a bond with the child during the six year period he was involved in a relationship with the child’s mother. However this former boyfriend still did not possess statutory standing to seek visitation even though he had lived with the child and child’s mother since the child was eighteen months old. It is clear from Justice Peter’s concurrence that, while he felt compelled to hold for the respondent mother when the petitioner failed to meet a claim for equitable estoppel, he did not believe the court’s reasoning promoted what would be in the best interests of the child. In fact, his opinion argues against the traditional method of statutory interpretation in this situation.[150] Here, Justice Peters admonishes the majority’s narrow reading of the New York statute and claims that decisions held by the Court of Appeals, favoring biology as the determining factor in deciding the legal parent, has the effect of tying judges’ hands rather than enabling them to serve the child’s best interests.[151]

However, even if visitation rights for third parties have a positive effect on children,[152] the Fourteenth Amendment Due Process right of the parent does begin to erode as more people are permitted standing to seek visitation over the parent’s objection. This places state legislators in an undesirable position. To expand third party visitation rights asks them to reconcile the interests of these emerging groups with their obligation to protect a parent’s constitutional right to control the “care, custody and management” of his or her child.[153] In addition, legislators must continue to weigh these parties’ competing interests with what is in the child’s best interests, which can, at times, be counter to the goals of either litigating party.[154]

Despite these difficulties, the possibility of expanding nonparental visitation statutes becomes more plausible when considering that the fundamental right of a parent, although possessing strong precedential support,[155] is still not immune from attackArguments for imposing a limit upon the fundamental rights of parents provided by the Constitution can be found in Justice Scalia’s dissent inTroxel .[156] Although Justice Scalia announces his belief that parents are the best decisionmakers for their children, Scalia denies the plurality’s contention that there is overwhelming support for the parent’s fundamental liberty interest.[157] In addition, Justice Scalia denounces the foundation of this liberty interest claim by reiterating that it derived from substantive due process and not from any constitutional text.[158]

Still, it is not Justice Scalia’s recommendation that these substantive due process cases be overruled.[159] Instead, his claim is that these nonparental visitation statutes do not belong in the same category as prior cases because they are representative of a new perception of the family unit.[160] He contends that it is not the rights of the parent which are changing in relation to the state’s parens patriae power, but rather that the narrow definition of this liberty interest (applying solely to parents) is changing as society’s view of the family unit is expanding. This change should be reflected through the legislature in the democratic way it was intended.[161] Therefore, discretion should be granted to the legislature regarding these statutes since it is not the role of the courts to create law in new areas.[162]

Since there is evidence that the Supreme Court remains adverse to creating a firm rule about what is an acceptable visitation statute,[163] it is likely that states will again make their own determinations about what is an appropriate nonparental visitation statute, so long as it remains within the new limitation prescribed.[164] Therefore, as society’s perception of the family unit continues to change, legislatures will continue to push the envelope when promulgating third party visitation statutes. So long as these statutes are specific and permit parent’s to have presumptive weight to satisfy their Due Process right, courts should allow these legitimate petitioners to have their day in court to demonstrate that visitation with them is invaluable to that particular child. This is the best way for deserving third parties to gain the rights they feel entitled to receive, and for children to maintain the important relationships that they have formed.



The presence of grandparent and other third party visitation statutes throughout the United States indicates that there is wide public support behind the claim that these parties have a right to seek visitation to continue their relationship with a particular minor. However, constitutional rights are not simply set aside because of strong societal opinion. Therefore, the right of a parent to be the ultimate decisionmaker for his or her child’s best interests will likely remain in some form. However, because of the changing nature of society, the view of what constitutes a “family” or even a “parent” is shifting.Due to this change, prior case law supporting this fundamental right will need to be adjusted in order to encompass those parties that were never before interpreted to have such protection. As legal rights are expanded, so too should an alternative means of dispute resolution. At the very least, even if neither potential litigant feels that they have truly “won” after the mediation process, it is the child who has maintained a victory in retaining a more intact family.

However, for this process to receive maximum results, the legal rights of these petitioning third parties must be expanded before mediation can be provided as a truly viable solution. In order to agree to mediation, parties must often first feel that they have something to gain. Unless the courts allow state legislatures to expand their nonparental visitation statutes to conform with society’s changing views about who should have visitation rights, neither ADR nor any aspect of the judicial system will be able to help resolve the problems, especially for third parties without statutory support, within these warring families . Of course, the end result of this stalemate is further harm to the subjects of the dispute, the people we are ultimately trying to protect, the children.

[1] Professor Janet Dolgin, Class Lecture at the Benjamin N. Cardozo School of Law, Parent Child and The State (Aug. 27, 2001). What it takes to be considered a family and specifically a parent has changed over time. At one point it was merely biology. However, today it is possible to have as many as four different people hold the title of “natural parent” to a single child. For example, one child can be created with the DNA from one woman’s egg, and another woman’s actual egg. A third woman can act as the surrogate, and a man can provide for the egg’s fertilization. Such technological advances have made it impossible to judge parenthood by previous, more traditional definitions. As a result, new factors have been considered to determine familial relationships. Some factors are the natural parent’s financial support of the child, the natural parent’s physical involvement in the child’s life, and the emotional support that the natural parent provides towards the child. See id.

However it was less radical circumstances which first broke the ground regarding the traditional definition of family. See Stanley v. Illinois, 405 U.S. 645 (1972) (holding it unconstitutional to presume that an unwed father is, for that reason alone, an unfit parent. A man who acts like a father has a cognizable right to claim that he is the father); see also Caban v. Mohammed, 441 U.S. 380 (1979) (stating a natural parent has the right to veto the adoption of his biological child when the natural father has lived with the child and the mother); see also Quillion v. Walcott, 434 U.S. 246 (1978) (implying that the lack of an established relationship between the natural father and the child and a prolonged relationship between the stepfather and the child, is a factor permitting a natural father’s parental rights to be terminated so that the stepfather can adopt the child); See also Lehr v. Robertson, 463 U.S. 248, 260 (1983) (holding a parent’s liberty interest does not “spring full-blown from the biological connection between the parent and the child. They require relationships more enduring.”).


[2] See In re Knowack, 53 N.E. 676 (N.Y. 1899) (holding children removed by a state agency can and must be returned to their families whenever possible because of “every consideration of humanity”). This decision eventually led to the determination that parental rights are a fundamental liberty interest constitutionally protected through the Due Process Clause of the Fourteenth Amendment. See Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing this constitutional protection formally); see also Pierce v. Society of Sisters, 268 U.S. 510 (1925).


[3] This fundamental liberty interest derives from the Fourteenth Amendment Due Process Clause. See Meyer, 262 U.S. 390 (1923) (holding a parent’s right to determine the language of their child’s education outweighs the state’s interest in promoting english to ensure civic development). See also Pierce v. Society of Sisters, 268 U.S. 510 (1925). Parents have a constitutional right to determine whether their child attends a public or private school. This liberty interest derives from substantive due process which is still applied today within the family context. IdSee, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (reaffirming this Fourteenth Amendment Due Process right of parents to control the care, custody, and management of their child). The Court accepted a parent’s refusal to allow the grandparents visitation even when an impartial party (judge) believed it to be in the child’s best interest for the visitation to be permitted. See id.


[4] See Troxel, 530 U.S. at 63-64 (recognizing that the family dynamic is, and continues to be, in the process of substantial change). Traditionally, a family has been defined by a specific biological connection between parents and their children. However, due to a number of different factors, this definition has evolved to include extended family members such as grandparents, aunts, and uncles. In addition, less traditional third parties such as same sex partners, or other individuals who live in the home, are now being considered. This is in large part due to societal changes about what it means to be a family. See id. See also, Grandparent Issues *1, at (last visited Aug. 31, 2001) (explaining the dramatic change in the grandchild/grandparent relationship within the past twenty years is the result of statistical increases in the divorce rate, single parenthood, adult drug and alcohol abuse, and general economic issues).


[5] See Susan Tomaine, Comment, Troxel v. Granville: Protecting Fundamental Parental Rights While Recognizing Changes in the American Family, 50 CATH. U. L. REV. 731, 739-49 (2001). Societal changes have created an interest in grandparents and other third parties that are now being recognized by state legislatures. See id. See also Loma Davies Silcott, Grandparent Visitation Rights *3, available at (last visited Aug. 31, 2001) (demonstrating the pressure that these groups are now placing on the traditional view of ‘family’). The article recommends to grandparents that they exercise their political muscle by forming support groups. These support groups should lobby for the creation of local, state, and national laws which support grandparent visitation rights. See idSee also Harvey Landau, Grandparent’s Visitation Rights-To Grandfather’s House We Go? *3-4, at (last visited Aug. 31, 2001) (recommending alternative dispute resolution with the help of a family friend, relative, minister, or school psychologist). However, even with this eye on mediation, the author still does not discount litigation as an available alternative. See id.

Third parties other than grandparents are seeking visitation rights, through court if necessary.See The National Center for Lesbian Rights and The American Civil Liberties Union, Interest of Amici Curiae *2, available at (last visited Jan. 22, 2002). Petitioner Katharine Dvorak brought suit to maintain a relationship with the child that she had raised since birth alongside the child’s biological mother who was Dvorak’s former partner. See id.


[6] See Tomaine, supra note 5, at 741-49. All fifty states have adopted some form of a grandparent visitation statute. Although the legislation is not uniform, these statutes generally comprise two important elements. The first is to define the circumstances under which a grandparent gains standing for court ordered visitation. The second is to establish guidelines that judges must follow in order to grant such a visitation petition. However, although the circumstances for standing and the guidelines provided can vary significantly from state to state, each jurisdiction either explicitly or implicitly requires that the visitation be in the child’s best interests. See id.


[7] See id. at 731-732, 741, 744. Wide support for this new legislation does not only derive from interested third parties. Such statutes have also been endorsed by the President, various legislatures, and political lobbies. See id.


[8] E.g., id. at 731, 741.


[9] The lobbying by grandparents and other third parties have convinced lawmakers that some third parties, like grandparents, have a legitimate interest in maintaining a relationship with the child that merits legal protection. See Troxel, 530 U.S. at 64. Justice O’Connor acknowledges that the popularity of nonparental visitation statutes is due at least in part to the statewide recognition that children benefit from maintaining relationships with the particular individuals with whom lawmakers have chosen to recognize by statute. See id.


[10] See id. All nonparent visitation statutes are created with at least the understanding that visitation is granted only if it is in the best interests of the child. Therefore, by simply promulgating these statutes, the assumption by legislators is that children do benefit from contact with these other ‘interested’ adults.

However there are arguments that these good intentions do not result in the best interests of the child. See Landau, supra note 5, at *1 (arguing that there are legislators and judges who believe that a court-mandated visitation schedule for grandparents, over the objections of the parent, cannot be in the child’s best interests). See also, The Coalition for the Restoration of Parental Rights Missouri Chapter *1, at (last visited Jan. 22, 2002) (demonstrating that there are several parent advocate groups lobbying for the repeal of nonparental visitation statutes). See, The Myth of a Need for “A Grandparent Child Abuse Police Force” at (last visited Jan. 22, 2002) (discounting the argument that there is any need for forced visitation to prevent child abuse since advocates seeking such visitation are doing so even over the objections of a presumptively fit parent).

Still, a popular counterargument is that the animosity between a parent and these third parties already exists, and is therefore not the product of the litigation, but rather the end result of an already existing problem. See, Grandparent Issues *1, at (last visited Aug. 31, 2001) (rationalizing that if it is necessary for a grandparent to go to court to obtain visitation rights, then there must already be a contentious relationship between the grandparent and the child’s parent otherwise they would be able to find a solution without court intervention).


[11] There is inconclusive data about whether third party visitation, over a parent’s objection, serves or harms the best interests of the child. Therefore, is it responsible to promulgate legislation that facilitates this end when it is only certain that it fulfills the desires of the third party?


[12] Several nonparental visitation statutes have been determined unconstitutional for having exceeded any lawful invasion of a parent’s fundamental liberty interest to control the upbringing of their child. The most famous example is Troxel v. Granville, 530 U.S. 57 (2000) where the United States Supreme Court held Washington’s nonparental visitation statute, WASH. REV. CODE § 26.10.160(3), to be unconstitutional as applied.


[13] See Emily Buss, Adrift in the Middle: Parental Rights After Troxel v. Granville, 2000 SUP. CT. REV. 279, 279-281 (2000). Troxel v. Granville provides the Supreme Court’s first and perhaps only word regarding the constitutionality of third party visitation statutes. However, the result reached by the Supreme Court is troublesome since, in attempting to serve the interests of all parties, the court reached an untenable decision. It is impossible to preserve parental rights in the traditional fashion, recognize the interests of third parties, and still promote the best interests of the child. To do so only creates endless litigation by asking the lower courts to set a standard even though the United States Supreme Court and the legislature have been unable to do so. IdSee also Lynne Z. Gold-Bikin, How a Supreme Court Decision May Determine Whether You Can See Your Grandchildren *2 at visited Jan. 22, 2002). This article assures grandparents that the Troxel decision has no precedential value on statutes currently in effect by citing the following from the Troxel opinion:


Because we reset our decision on the sweeping breadth of Section 26.10.160(3N)..we do not consider the primary constitutional question…whether the due process clause requires all non-parental visitation statutes to include a showing of harm or potential harm to that child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation contest.




[14] See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944).


[15] Troxel v. Granville 530 U.S. 57 (2000).


[16] N.Y. DOM. REL. §§71, 72 (2001).


[17] There have been few cases dealing directly with third party visitation following the Troxel decision.However the cases which have been decided in New York since that landmark case include: Hertz v. Hertz, 2002 N.Y. App. Div. LEXIS 2161 (2d Dept. 2002); Morgan v. Grzesik, 732 N.Y.S.2d 773 (4th Dept. 2001); Chaya v. Herbert, 725 N.Y.S.2d 576 (2d Dept. 2001); In Re Multari v. Sorrell, (3rd Dept. 2001); Lawrence v. Lawrence, 275 A.D.2d 985 (4th Dept. 2000); Farag v. Ghebriyal, 2001 N.Y. Misc. LEXIS 453 (Fam. Ct. Queens Co., 2001); Mark N. v. Runaway Homeless Youth Shelter, 2001 N.Y. Misc. LEXIS 331 (Fam. Ct. Chautauqua Co., 2001); Allison T. v. Kimberly B., 2001 N.Y. Misc. LEXIS 339 (Fam. Ct. Orange Co., 2001); Webster v. Ryan, 729 N.Y.S.2d 315 (Fam. Ct. Albany Co., 2001); Davis v. Davis, 188 Misc.2d 81 (Fam. Ct. Ostego Co., 2001); Fitzpatrick v. Youngs, 717 N.Y.S.2d 503 (Fam. Ct. Jefferson Co., 2000); Smolen v. Smolen, 713 N.Y.S.2d 903 (Fam. Ct. Onondaga Co., 2000).


[18] Since New York has had so few cases on this issue, and the Court of Appeals has not addressed the constitutionality of New York’s nonparental visitation statutes following the Troxel decision, it is impossible to make an absolute determination about the statutes’ constitutionality. However, appellate courts which have addressed this topic have held that the Troxel decision does not render the nonparental visitation statutes unconstitutional per se and that they can in fact be constitutionally applied.See Morgan, 732 N.Y.S.2d at 773. “Troxel does not call into question the facial validity of Domestic Relations Law §72 and the application of Domestic Relations Law §72. This case does not violate the respondents’ rights under the Due Process Clause.” Id.


[19] See Andrew Schepard, The Evolving Judicial Role in Custody Disputes: From Fault Finder to Conflict Manager to Differential Case Management, 22 U. ARK. LITTLE ROCK L. REV. 395, 4405 (2000).There is great emotional turmoil for children when dealing with their parents’ divorce. To reduce this conflict, it is important for the child to be able to maintain the stable relationships he or she has had developed before the divorce occurred. See id.


[20] 262 U.S. 390 (1923).


[21] See Troxel, 530 U.S. at 65. In the most recent United States Supreme Court case dealing with the issue of parental rights, Justice O’Connor in her plurality opinion affirmed through dicta that Meyer, 262 U.S. 390 (1923) and its progeny, have established a fundamental liberty interest that is possibly the oldest interest recognized by the United States Supreme Court. Id. See also Santosky v. Kramer, 455 U.S. 745 (1982); Parham v. J.R., 442 U.S. 584 (1979); Quillion v. Walcott, 434 U.S. 246 (1978); Wisconsin v. Yoder, 406 U.S. 205 (1972); Stanley v. Illinois, 405 U.S. 645 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925).


[22] See Meyer, 262 U.S. at 401. Nebraska’s purpose for enacting this statute “was to promote civic development by inhibiting training and education of the immature in foreign tongues and ideals before they could learn English and acquire American ideals….” Id.


[23] See id. at 401 (determining the right of a parent to decide the instruction necessary for his or her child’s education fell within the purview of an individual’s fundamental right to control his or her child’s upbringing). Since the statute was unconstitutional, the conviction was reversed. Id.


[24] See id. at 403 (stating that the exercise of the state’s police power was arbitrary and without any reasonable relation to a legitimate state goal).


[25] Prior to Meyer, 262 U.S. 390, which held there to be a Fourteenth Amendment right to control the upbringing of one’s own children, there was already present in society a recognized view that parents have such a right and that it deserved special protection. See In Re Knowack, 53 N.E. 676 (N.Y. 1899) (holding children removed from their parents’ custody are, if possible, to be returned to their parents because of “public policy and every consideration of humanity”).


[26] See Troxel, 530 U.S. at 65-66. In her plurality opinion, Justice O’Connor recognizes that in addition to Meyer, 262 U.S. 390, several other cases have helped establish the parameters of this fundamental liberty interest. The cases listed include, but are not limited to, Santosky, 455 U.S. 745; Parham, 442 U.S. 584; Quillion, 434 U.S. 246; Yoder, 406 U.S. 205; Stanley, 405 U.S. 645; Prince, 321 U.S. 158;Pierce, 268 U.S. 510. See id.


[27] 268 U.S. 510.


[28] Id. at 534-35. See accord Yoder, 406 U.S. 205 (holding that Amish parents have a constitutional right to prevent their children from attending any school beyond the eighth grade). The court predicated its decision upon two grounds. The first was based on the strong religious belief of these “model Americans” that their children should not continue to have formal schooling beyond the eighth grade. The second was based on the court’s determination that the state had a lesser interest in requiring these children to attend school than did the Amish parents in controlling the upbringing of their children. Id.While the court did hold for the Amish, this determination was not made without first balancing the Amish parent’s interest with that of the state. By so doing, the court recognized that the state, through its parens patriae power, has some control over parental discretion when it impacts a child’s physical or mental health. The court merely determined that, in this instance, the state could not exercise its power over the judgment of the child’s parents.

This decision can easily be viewed as applying only to the Amish. See Professor Janet Dolgin, Class Lecture at the Benjamin N. Cardozo School of Law, Parent Child and The State (Sept. 24, 2001). Justice Burger wrote the opinion after having switched sides in order to make the holding as narrow as possible.As a result, there is likely no group other than the Amish that could fit into the narrow parameters of the holding provided in this case. See id.


[29] Parham, 442 U.S. 584.


[30] Id.


[31] Id. at 602. Although Parham is the case cited to provide this reasoning, the concept and language derives from Blackstone.


[32] Parham, 442 U.S. at 602.


[33] See idSee also Professor Janet Dolgin, Class Lecture at the Benjamin N. Cardozo School of Law, Parent Child and the State (Sept. 26, 2001). The presumption becomes even less credible when considering that some children are under the protection and control of governmental agencies rather than their natural or adoptive parents. However, this distinction was not considered significant by the court. In contrast, the state’s bond with the child is, for these purposes, determined to be equal to that of the parent because of the state’s parens patriae power. See id.


[34] 321 U.S. 158 (1944).


[35] Id. at 160. The child’s aunt had aided the minor by permitting her to sell religious publications on the street. Id.


[36] Id. at 170. Although it is atypical to view a guardian as holding the same legal rights as a parent, the facts of this case allowed the court to view it in an unusual light. Therefore, as precedent, the case is applied as though a parent rather than a guardian is being denied Fourteenth Amendment protection. Id.


[37]See id. at 164. In addition to the Fourteenth Amendment Due Process challenge, the guardian also claimed that the child labor statute violated the First Amendment’s guarantee of the free exercise of religion. This First Amendment challenge was also denied. See id.


[38] Id. at 167 (1944). See accord Yoder v. Wisconsin, 406 U.S. 205 (1972). Although Justice Burger’s opinion did support the Amish parents’ right to terminate their children’s formal schooling after the eighth grade, the holding was so narrowly written that it is unlikely that the decision could be appropriately applied to any other group.


[39] Eric B. Martin, Notes & Comments, Grandma Got Run Over By The Supreme Court: Suggestions For A Constitutional Nonparental Visitation Statute After Troxel v. Granville, 76 WASH L. REV. 571, 576 (2001).


[40] See supra note 23.


[41] Prince, 321 U.S. at 158.


[42] See Troxel, 530 U.S. at 64. “The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States’ recognition of these changing realities of the American family.Because grandparents and other relatives undertake duties of a parental nature in many households, states have sought to ensure the general welfare of the children therein by protecting the relationships those children form with such third parties.” Id. It follows that if the states felt the need to protect these relationships because they are important to the welfare of the child, a parent depriving the child of such a relationship, without good reason, can be seen as causing the child harm.


[43] Martin, supra note 45, at 577. “Thus, although the right to custody, care, and nurturing of children resides first in their parents, the parent’s power must give way to the child’s best interest when the state exercises its parens patriae power.” Id.


[44] Judith L. Shandling, Note: The Constitutional Constraints On Grandparents’ Visitation Statutes, 86 COLUM. L. REV. 118 (1986).


[45] Martin, supra note 45, at 576. The reason for this paradox was that a custody suit was based upon the “best interests of the child” standard whereas visitation was predicated upon the stricter ‘harm to the child’ standard. Id.


[46] Tomaine, supra note 5, at 731, 732, 741, 744. Broad support for this new legislation not only includes the interested third parties, such statutes have also been endorsed by the President, various legislatures, and political lobbys. Id.


[47] Although some states like Washington promulgated broad nonparental visitation statutes, other states provide standing specifically to grandparents or other third parties. New York is such an example, where it specifically recognizes the interest of grandparents in N.Y. DOM. REL. §72 (2001).


[48] See Landau, supra note 5, *2, at“In the last several years, many states have enacted statutes that create a right of grandparents to seek court-ordered visitation. These laws recognize the unique importance of the relationship between grandparents and grandchildren.” Id.


[49] See Tomaine, supra note 5, at 741-48 (discussing how all fifty states have adopted grandparent visitation statutes). See also The Divorce Support Page: Grandparent Visitation, *1, at (last visited Aug. 31, 2001)Due to the popularity of third party visitation statutes and the great number that have been promulgated, the current trend in the courts is to promote, rather than to limit, grandparent visitation. See id.


[50] See id. at 731, 744. Much of the recognition given to grandparents’s rights has been due to the strong seniors’ lobby. See id.


[51] See Shandling, supra note 50, at 121.


[52] Troxel, 530 U.S. at 63-64. “The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the changing realities of the American family.” Id. Justice O’Connor continues by stating that these changing realities have forced grandparents to take on what were formerly considered the role of the parent. In addition, Justice O’Connor acknowledges that these statutes were intended to recognize that it is to the child’s benefit to have a relationship with his or her grandparent. See idSee also Tomaine, supra note 5, at 739. See also Landau, supra note 5, *1, at “In today’s society grandparents are playing an ever-increasing role in the rearing of their grandchildren due to divorce or their circumstances requiring them to be child-care providers for working parents. The rise of drug and alcohol abuse has also resulted in many grandparents playing a more active role in the day-to-day lives of their grandchildren.” Id.

But see John DeWitt Gregory, Blood Ties: A Rationale for Child Visitation by Legal Strangers, 55 WASH & LEE L. REV. 351, 352 (1998) (concluding courts and legislatures should reaffirm the legal right of parents to prevent interference by legal strangers when it comes to determining how to raise their child). See also Shandling, supra note 50, at 121. There is little psychological evidence to support the assumption that grandparents serve an important function for their grandchildren. In addition, there is evidence to indicate that grandparents do not see their role as having much more than a symbolic significance. IdSee also, Why Grandparent Visitation Is Not a Special Right: Grandparents should not be accorded special rights to see grandchildren against the wishes of suitable parentsat (last visited Jan. 22, 2002) (contending that court ordered visitation for grandparents is ultimately more harmful to the child).Although denying visitation may be unfair to the grandparent, it is more important to protect the best interests of the child. This protection cannot be achieved if the government is given such latitude to intrude into family life. In addition, applying the best interests standard to grandparents is a misuse of its function since it was intended to apply to parents, not third parties. IdSee also Landau, supra note 5, *1, 3-4 at Some legislators and judges feel that it is often not in the best interests of the child to prescribe court ordered visitation for grandparents over the objection of a fit parent. Courts are especially reluctant to intervene on behalf of grandparents when there is an intact nuclear family, believing that the positive effects of grandparent visitation will not outweigh the potential harm that could occur by undermining the already present stability within the family. See id.


[53] See Landau, supra note 5, at *1, 3 at (last visited Aug. 31, 2001). In part due to societal changes, grandparental involvement in the lives of grandchildren is greater than ever before.In addition, it is generally recognized that grandchildren are better served if they have a relationship with their grandparents and other family members. IdBut see, The Coalition for the Restoration of Parental Rights: Grandparent Visitation Rights Are Not Ironclad *2 at (last visited Jan. 22, 2002). Although the grandparents’ interests are considered, they are not the main concern. “…[A]part from popular reference to ‘grandparent visitation statutes,’ these laws are not intended or designed to provide emotional sustenance for the grandparent.The best interest of the grandparents are not the touchstone for application of these statutes.” Id.


[54] See Tomaine, supra note 5, at 748-749. See also DeWitt Gregory, supra note 58, at 351-352 (possessing the support of legislation and judicial decisions, grandparents are more successful than other third parties when petitioning for visitation with their grandchildren).


[55] E.g., N.Y. DOM. REL. §71 (2001).


[56] Most statutes confer standing to a specific group or groups. Therefore, many parties are not heard, despite their claim of a legitimate interest, because their group is not enumerated by statute. See, e.g.,Laurie A. Rompala, Abandoned Equity and the Best Interests of the Child: Why Illinois Courts Must Recognize Same-Sex Parents Seeking Visitation, 76 CHI.-KENT L. REV. 1933-1934, 1957 (2001).Lesbian and gay parents are not listed as groups possessing standing in Illinois. As a result, these “coparents” are legal strangers to their own children, and therefore, have no right to enter court and make a claim for visitation. This problem is growing as the concept of “coparents” becomes both more common and socially acceptable. The absence of statutory support has the effect of causing children, raised by these coparents, to be prevented from their parental guidance. To protect the best interests of the children, it is necessary for courts to expand the definition of interested third parties, or even parenthood, to match what has become common societal practice. See id.

Statutes attempting to encompass less traditional third parties do so either by enumerating several groups or using broad language, which can be interpreted to include these third parties.However, such application can cause constitutional problems. See e.g., WASH. REV. CODE §26.10.160(3). Washington’s nonparental visitation statute was determined unconstitutional as applied in the Supreme Court case of Troxel, 530 U.S. 57, partially because it conferred standing too broadly. The statute stated: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”


[57] Tomaine, supra note 5, at 748.


[58] Rompala, supra note 62, at 1933-1934, 1936. Statistics show that the number of planned gay and lesbian families has increased dramatically in recent years. In response, courts have come to recognize gay and lesbian parents. Id.

However, considering the untraditional nature of the belief that third parties should have legal standing, much of the judicial opinions supporting this view can only be found in dissents. See e.g., Alison D. v. Virginia M., 572 N.E.2d 27, 30 (N.Y. 1991). Chief Judge Judith C. Kaye of the NY Court of Appeals, in her dissenting opinion, argued that determining the child’s best interests should always be the court’s objective and that this is problematic when the term ‘parent’ is interpreted to merely include the appropriate biological status. IdSee also Multari v. Sorrel, 2001 N.Y. App. Div. LEXIS 9308, *17-18 (2001). “If in custody and visitation disputes, common sense, reason and an overriding concern for the welfare of a child are to prevail over narrow selfish proclamations of biological primacy, the assertion of equitable estoppel by a nonbiological or nonadoptive parent must be given credence by the courts.Therefore, while I agree with the majority’s determination that petitioner herein lacked standing, I cannot concur with their narrow reasoning which shrinks the prerequisite of standing to a biological construct.”Id.

But see V.C. v. M.J.B., 163 N.J. 200 (2000) cert. denied, 2000 U.S. LEXIS 6634 (2000) (holding although petitioning former domestic partner did not have the right to joint legal custody, her role as a psychological parent entitled her to regular visitation with the children). This demonstrates that some states do have opinions, even in their highest courts, which recognize third parties who are not traditionally seen as parents. But c.f. The National Center for Lesbian Rights and The American Civil Liberties Union, Interest of Amici Curiae, at (last visited Jan. 22, 2002). However there is a difference between what these cases are choosing to recognize and claims by nonparental third parties. Coparents or stepparents are often given standing because they are viewed as a “psychological parent.” In contrast, grandparents and other interested third parties such as siblings, aunts, or uncles, cannot make the claim that this is just a new definition of “mother” or “father” but have to make the alternative argument that they too are irreplaceable to the child when one considers the societal changes that affect familial roles and relationships. See id.


[59] Tomaine, supra note 5, at 748. “Only a limited number of state legislatures recognize that a non-parent’s close relationship with a child warrants a grant of visitation rights and thus enacted statutes granting limited standing to third parties.” IdSee also Rompala, supra note 62, at 1948-1949, 1952-1955.Historically courts have given special protection to relationships between children and their biological parents. This is based upon the belief that children have greater stability if they have a continuous relationship with these parents. This goal for stability has not been reflected in the same way when biology is not involved. For example, “grandparents, stepparents, foster parents, and the unmarried partners of either same or opposite sex biological parents may all be the practical, psychological, and actual parents of a child, though courts have not consistently recognized their relationships.” In addition, even equitable doctrines which grant standing to psychological parents, in loco parentis, de facto parent, and equitable parent status, have not been extended to lesbian and gay nonbiological parents seeking visitation. See id.

See also Multari, 2001 N.Y. App Div. LEXIS 9308 (deciding former boyfriend does not have standing to seek visitation despite his relationship with the child for over six years). The former boyfriend had lived with the child and mother since the child was eighteen months old. Even the concurring opinion by Judge Peters, who believed it to be in the child’s best interests for petitioner to be granted visitation, recognized that his hands were tied in that the petitioner simply did not have the prerequisite statutory standing. See id.


[60] See The National Center for Lesbian Rights and The American Civil Liberties Union, Interest of Amici Curiae, at (last visited Jan. 22, 2002). The support of the “NCLR” and the “ACLU” indicates that this issue is gaining more attention from powerful civil liberty advocates. The argument by these organizations is that, “Under the long-standing doctrine of In Loco Parentis, an adult who voluntarily assumes the responsibilities of a parent has the same rights and obligations as a biological or adoptive parent.” The second argument presented is that, “In other jurisdictions, courts apply the doctrine of In Loco Parentis fairly and equally, regardless of the parent’s sexual orientation.” States referenced by the document include New Jersey, Wisconsin, Rhode Island, and Missouri’s highest courts as well as intermediate appellate courts in the states of Maryland, New Mexico and Pennsylvania. The final argument, although not on point, is that “excluding lesbian and gay co-parents from the In Loco Parentis Doctrine would deny them and their children equal protection under the United States and Ohio Constitutions. In the argued case, a lesbian woman (Katharine Dvorak) was trying to preserve the relationship she had with the child she had raised from birth with her former partner (Evangile Jones). Ms. Jones, the child’s biological mother, refused to allow Ms. Dvorak visitation with the child despite their former “coparent” relationship. The claim made by Ms. Dvorak is that a person can still be a parent, even if they are not biologically related or have commenced no legal adoption, if the behavior has been that of a parent to the child. See id.


[61] See Rompala, supra note 62. See, e.g., Multari, 2001 N.Y. App Div. LEXIS 9308. In his concurrence, Judge Peters states his belief that children can develop relationships with adults which are in their best interests even if those adults do not possess the legal standing to sue for visitation. The judge contends that in such situations, it is unfortunate to be required to make a legal distinction when the best interests of the child would be better served by a different judgment. See id.


[62] See, e.g., Rompala, supra note 62.


[63] 530 U.S. 57 (2000).


[64] See, e.g., Tomaine, supra note 5, at 741.


[65] See, e.g., Morgan v. Grzesik, 732 N.Y.S.2d 773 (4th Dept. 2001). Petitioner unsuccessfully challenged the facial constitutionality of N.Y. DOM. REL. §72 following the Supreme Court’s decision in Troxel. See id.


[66] WASH. REV. CODE §26.10.160(3).


[67] Troxel, 530 U.S. at 63.


[68] Id. at 63. See also Tomaine, supra note 5, at 758-59. Three other states: Georgia, North Dakota, and Tennessee all had similarly broad nonparental visitation statutes that were also determined to be unconstitutional. See id.


[69] See Tomaine, supra note 5, at 731. “Although it is an anomaly for the highest court in the land to hear a domestic relations dispute, the Supreme Court’s ruling in Troxel v. Granville had potential national implications.” Id.


[70] WASH. REV. CODE §26.10.160(3).


[71] Troxel, 530 U.S. at 61. The children’s father was the son of petitioner grandparents. See id.


[72] The significance of this claim is twofold. First, it has been established that it is in the child’s best interests to continue with any stable relationship. Second, case law regarding parental and nonparental rights has evolved from biology being the key and sometimes only consideration, to the notion that relationship rights should and often are determined by the level of commitment displayed by the party.See Lehr v. Robertson, 463 U.S. 248, 260 (1982), quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979) (holding a parent’s liberty interests “do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.”). Id.


[73] Troxel, 530 U.S. at 71.


[74] Id. at 63.


[75] Id. at 71. The majority found this argument to be so significant that they quoted Granville’s attorney’s opening statement. The quote states, “Right off the bat we’d like to say that our position is that grandparent visitation is in the best interest of the children. It is a matter of how much and how it is going to be structured.” Id.


[76] Id. at 72.


[77] The Supreme Court went to great lengths to state that the statute was unconstitutional as applied.Troxel, 530 U.S. at 73. “Because we rest our decision on the sweeping breadth of §26.10.160(3) and the application of that broad unlimited power in this case, we do not consider the primary constitutional question passed by the Washington Supreme Court—whether the Due Process Clause requires that all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context.” Id.


[78] Troxel, 530 U.S. at 92. In his dissent, Justice Scalia states that the court’s reliance upon substantive due process is insubstantial. “The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has a small claim to stare decisisprotection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance.” Id. See also Lynne Z. Gold-Bilkin, How a Supreme Court Decision May Determine Whether You Can See Your Grandchildren, *2, at (last visited Aug. 31, 2001). “It is important to note that this statute and this case (Troxel) has nothing to do with any case pending in any other state or even cases pending in Washington under the newly drawn statute.” Id. This demonstrates how little precedential significance attorneys view the Troxel decision to hold. See id.


[79] Troxel, 530 U.S. at 57. The inability to get a majority opinion reflects the strong disagreement among the Justices about what made the statute unconstitutional. In fact, the division in the court was very different from the traditional alliances between the Justices, further indicating the court’s uncertainty about how to deal with or even feel about this family issue.


[80] Id. at 63.


[81] Id. Justice O’Connor’s majority opinion states that the statute is unconstitutional as applied. Justice Souter in his concurrence believes that the statute is facially unconstitutional because of its breadth.Justice Thomas concurs on the basis that any statute which infringes upon the right of a parent to control the upbringing of his or her child should be subject to the standard of strict scrutiny. Justice Steven’s dissenting opinion states that the Court should not have even granted certiorari and the legislature should have simply been ordered to draft a new statute. Justice Scalia dissents, arguing against substantive due process and claiming that although parents have the right to control the upbringing of their child, it is not the job of the judicial system to determine what those rights should be.Finally, Justice Kennedy dissents believing that the judgment should be vacated and remanded to make certain that Granville’s (the mother’s) constitutional rights have not been infringed upon. Justice Kennedy also recognizes that there is an important difference between the rights of a parent versus a complete stranger and the rights of a parent versus a third party who has developed a relationship with the child.See idSee also Alessia Bell, Public and Private Child: Troxel v. Granville and the Constitutional Rights of Family Members, 36 HARV. C.R.-C.L. L. REV. 225 (2001) (providing the author’s analysis of each justice’s opinion).


[82] See supra note 13.


[83] See Tomaine, supra note 5, at 756-60. Tennessee, Georgia, Washington, and North Dakota’s nonparental visitation statutes were challenged in their respective state’s highest court and held unconstitutional. See id.


[84] See id.


[85] See Troxel, 530 U.S. at 70-71. The plurality’s chief criticism was that the trial judge had placed the presumption in favor of the grandparents rather than the fit parent. In so doing, the judge was substituting what he believed to be in the child’s best interests for the parent’s own judgment. This flouted the standard presumption established in Parham v. J.R., 442 U.S. 584, 603 (1979), that a parent’s “natural bonds of affection” are to be considered over any interest that the state may hold since it is more likely that the parent will know, and be interested in achieving, what is in the best interests of his or her child.See id.


[86] Troxel, 530 U.S. at 76-78. Justice Souter in his concurrence states that the any person at any timestanding conferred by the Washington statute is impermissibly broad. See id(emphasis added).


[87] See Tomaine, supra note 5, at 768-771.


[88] See supra notes 13 and 84 (recognizing that the Troxel decision only told the lower courts what would be an unacceptable statutory interpretation of a nonparental visitation statute). New York has had few decisions on this issue following Troxel. Cases that have addressed the issue are: Hertz v. Hertz, 2002 N.Y. App. Div. LEXIS 2161 (2d Dept. 2002); Morgan v. Grzesik, 732 N.Y.S.2d 773 (4th Dept. 2001); Chaya v. Herbert, 725 N.Y.S.2d 576 (2d Dept. 2001); In Re Multari v. Sorrell, 2001 N.Y. App. Div. LEXIS 9308 (3rd Dept. 2001); Lawrence v. Lawrence, 275 A.D.2d 985 (4th Dept. 2000); Farag v. Ghebriyal, 2001 N.Y. Misc. LEXIS 453 (Fam. Ct. Queens Co.2001); Mark N. v. Runaway Homeless Youth Shelter, 2001 N.Y. Misc. LEXIS 331 (Fam Ct. Chautauqua Co. 2001); Allison T. v. Kimberly B., 2001 N.Y. Misc. LEXIS 339 (Fam Ct. Orange Co. 2001); Webster v. Ryan, 729 N.Y.S.2d 315 (Fam Ct. Albany Co. 2001); Davis v. Davis, 188 Misc.2d 81 (Fam Ct. Ostego Co. 2001); Fitzpatrick v. Youngs, 717 N.Y.S.2d 503 (Fam. Ct. Jefferson Co. 2000); Smolen v. Smolen, 713 N.Y.S.2d 903 (Fam Ct. Onondaga Co. 2000).


[89] Special proceeding or habeus corpus to obtain visitation rights in respect to infant grandchildren, N.Y. DOM. REL. §72 (2001). “Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.” Id.


[90] N.Y. DOM. REL. §71 (2001) Special proceeding or habeas corpus to obtain visitation rights in respect to certain infant siblings. “Where circumstances show that conditions exist which equity would see fit to intervene, a brother or sister or, if he or she be a minor, a proper person on his or her behalf of a child, whether by half or whole blood, may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) or section six hundred fifty-one of the family court act; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such brother or sister in respect to such child.” Id.


[91] See Morgan, 732 N.Y.S. at 778. Although the court only addresses procedure regarding grandparent visitation, the statutes for siblings and grandparents are similar in that only after standing is granted can the second phase or best interests inquiry be conducted to determine visitation. Id.


[92] Since Troxel, 530 U.S. 57, there have been only four appellate cases and eight trial court cases (seven of which were in family court) in New York that have dealt with this issue.


[93] See, The Coalition for the Restoration of Parental Rights Missouri Chapter *1 at (last visited Jan. 22, 2002). The article’s headline is “A Victory for Fit Parents Everywhere!” Id. Although true, this headline is somewhat misleading. The Court did not determine in Troxel whether nonparental visitation statutes are unconstitutional per se, but rather, that the Washington’s nonparental visitation statute was unconstitutional as applied.


[94] See supra note 84. Justice O’Connor expresses that the plurality agrees with Justice Kennedy that there is no reason to determine on this day the scope of the constitutionality of any standard for awarding visitation. See id. See also Morgan, 732 N.Y.S.2d at 778 (providing that the Troxel decision does not make New York’s DOM. REL. §72 unconstitutional).


[95] The Washington statute granted standing for visitation to any person at any time so long as it is in the best interests of the child. In contrast, the New York statutes are specifically limited to grandparents and siblings. In addition, neither group is provided with standing simply because they are within that group. Before granting standing to proceed to the best interests prong of the inquiry, the petitioner must first establish that equity would allow the court to intervene, or in the case of grandparents, one or both of the parents are deceased.


[96] Troxel, 530 U.S. at 73. The plurality in Troxel specifically limited its decision to the parties before the court. In addition, the court recognized that it would be difficult to make a determination about other state statutes and cases since each case and the application of state law is so different. See id. See also Morgan v. Grzesik, 732 N.Y.S.2d 773. The primary reason that Troxel v. Granville can be distinguished is that the Court determined the Washington statute unconstitutional as applied. Although there may be cases in New York where the facts presented will also make the application of these statutes unconstitutional, this did not occur here. See id.


[97] Troxel, 530 U.S. at 67. “Section 26.10.160(3) contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus in practical effect, in the State of Washington, a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.” IdSee also Morgan, 732 N.Y.S.2d at 778. “…[B]y requiring petitioner to establish standing, the court gave respondents’ decision some presumptive or ‘special’ weight, which is all that the Troxel decision requires.” Id.


[98] Troxel, 530 U.S. at 72. “…and its [the Washington Superior Court’s] failure to accord special weight to Granville’s already having offered meaningful visitation to the Troxels, show that this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interests.” IdSee also Morgan, 732 N.Y.S.2d at 778 (claiming that unlike the Troxels, the petitioner was denied any visitation with her grandchildren).


[99] Since the issue of New York’s nonparental visitation statutes has not been addressed by the Court of Appeals post-Troxel, the precedential value of the Troxel decision can only be determined by looking at the cases adjudicated in New York’s lower courts. However, these courts have demonstrated no uniformity in their application of Troxel. In contrast, cases appear to come out either way depending upon the judge’s discretion. See Morgan, 732 N.Y.S.2d at 778 (holding that the Troxel decision does not affect the constitutionality of DOM. REL. §72 and therefore petitioner grandmother has standing to seek and be awarded visitation). But see Lawrence v. Lawrence, 713 N.Y.S.2d 418 (2000) (using the Troxel decision to buttress its holding that the parent has a fundamental constitutional right to make decisions about her children regarding issues like custody, and therefore, the courts may not interfere with her decision absent some extraordinary circumstance).


[100] See supra note 107.


[101], What is Mediation? *1, available at (last visited Nov. 21, 2001).


[102] Michael J. Roberts, Why Mediation Works *2 available at http: (last visited Nov. 21, 2001).


[103] Id.


[104] Id.


[105] Id.


[106] Id.


[107] Id.


[108] Id.


[109] Id. at *2-3.


[110] Id. at *3.


[111] Id.


[112] Alternative Dispute Resolution (ADR): An Overview *1 available at (last visited Feb. 25, 2002) (providing that a big difference is arbitration does not have discovery and the rules of evidence are simplified).


[113] Id. at *1.


[114] Id. “Arbitration has been used in labor, construction and securities regulation, but is now gaining popularity in other business disputes.” Id.


[115] Id.


[116] Michael J. Roberts, Why Mediation Works *3 at http:// (last visited Nov. 21, 2001). This is not an inflated statistic. See id. The author considers factors that would make this figure appear greater than appropriate and denounces them by stating that, “This [the statistic] is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial.” Id


[117], Benefits of Mediation *1, at (last visited Nov. 21, 2001). See also John J. McCauley, Overcoming Common Barriers To Settling Cases *1, at (last visited Nov. 21, 2001). See generally Roberts,supra note 124.


[118] Nathan Davidovich, Mediation: A Process to Regain Control of Your Life *3, at (last visited Nov. 21, 2001). Courts are so overworked that it can take even a year to simply get a court date and several years for litigation to be completed. In contrast, most mediations can be completed within months or even weeks. See idSee, Benefits of Mediation *1, at (last visited Nov. 21, 2001). See also John J. McCauley, Overcoming Common Barriers To Settling Cases *1, at (last visited Nov. 21, 2001). See generally Roberts,supra note 124.


[119] See generally, Benefits of Mediation at (last visited Nov. 21, 2001). This provides a settlement which is generally more predictable and therefore agreeable to the parties than a potential solution constructed by a third party. In addition, it has resulted in a higher rate of compliance by the parties involved. This is significant since it provides a greater opportunity for finality which in turn decreases cost and time dedicated to the specific dispute. In addition, the formulation of such a creative solution allows the parties to consider legal and extralegal issues they might not have considered if the proceeding were conducted in a different forum. See id.


[120] Id. *2, at (last visited Nov. 21, 2001). Parties frequently litigate because they are unable to convince the other party, outside of a courtroom, to consider their perspective. Mediation not only allows one part to capture the other party’s attention, it also places both parties in a position where they are able craft their own solution to the issue. See idSeeRoberts,supra note 124. See also John J. McCauley, Overcoming Common Barriers To Settling Cases*3, at (last visited Nov. 21, 2001).


[121] E.g.,, Benefits of Mediation *2, at (last visited Nov. 21, 2001). Without the presence of a mediator parties may never consider negotiation first for fear that it would be seen as a sign of weakness. However, many parties would rather the process be more conciliatory than litigation sometimes will allow. Therefore, mediation provides the parties with an opportunity to settle their dispute without feeling as though they are relinquishing any bargaining power.See id.


[122] E.g., id. at *2-3, at (last visited Nov. 21, 2001).Parties can designate how the agreement should be written so that is specifically tailored to their situation. See id.


[123] E.g., id. at *3.


[124] Id. at *4. Although it is not the mediator’s job to provide a party with a final judgment, the party can still use this opportunity to see how an uninterested individual views their position. In other words, after heated debate and encouragement from friends and other biased individuals, mediation can be a reality check for parties. This may be important before a litigant places himself in a binding arena (i.e. a courtroom) where there can be far-reaching implications and long term effects. See id.


[125] John J. McCauley, Overcoming Common Barriers To Settling Cases *3, at (last visited Nov. 21, 2001). Although the desire to inflict pain may fade, the cost of litigation initiated at a time of anger still remains. See id.


[126]Andrew Schepard, Reporter’s Foreword: Model Standards of Practice for Family and Divorce Mediation *1, at http://www.mediate .com/articles/afccstds1.cfm (last visited Feb. 28, 2002).


[127] See Schepard, supra note 20, at 407-408. Since ADR processes are considered especially suitable for potential litigants who have had a long standing relationship, it stands to reason that ADR is particularly viewed as effective in the family law context. This is even more true in custody cases where children need to have a continued relationship with both of their parents. Providing a forum for parents to work out their differences with as little confrontation as possible allows these relationships to continue.See id. For example, a recent empirical study using a sample of divorcing parents stated, “an overall consensus that the attorneys’ roles and responsibilities in the divorce process are not translating into actual practice.” In addition, “Many of the parents did recognize that they were already feeling angry and hostile but 71 percent of them maintained the legal process pushed those feelings to a further extreme.”Id.


[128] See, Model Standards of Practice for Family and Divorce Mediation: Overview and Definitions at http://www.mediate .com/articles/afccstds.cfm (last visited Feb. 28, 2002).


[129] See Schepard, supra note 135, at *4-6.


In October, 1998 the Model Standards Symposium convened in Orlando to review the draft standards created by the ABA Committee. Representatives of over twenty family mediation organizations reviewed the ABA draft line by line…. A first draft of revised Model Standards for all family mediators regardless of professional origin resulted.


The Symposium met again on February 26, 2000 in New Orleans. At that time, it reviewed proposals for changes in the Draft Standards which were published in the January 2000 issue of the Family and Conciliation and Courts Reviewand posted on the Web sites of AFCC, the ABA FLS, and the ABA ADR section. In addition, before the 2000 Meeting, the Draft Standards were mailed to over ninety (90) local and national mediation interested groups…. In response, the Symposium received comments and over eighty (80) proposals for changes in the Draft Model Standards from numerous groups and individuals that make up the diverse membership of the family mediation community….


The Symposium completed its work at a subsequent meeting in Chicago on August 5, 2000, which followed the same organizational model as the February 2000 meeting…. Eighteen (18) experienced family mediators from around the nation again participated in lively full day discussions which reviewed the DraftModel Standards line by line.



[130] Id. at *6. “The Model Standards that follow are thus the result of extensive and thoughtful deliberation by the family mediation community with wide input from a variety of voices. Nonetheless, they should not be thought of as a final product but more like a panoramic snapshot of what is important to the family mediation community at the beginning of the new Millennium.” Id.


[131] See supra notes 121-122 and accompanying text.


[132] For example, family suits are often more emotional. Rather than a dispute between business partners or even a tort case, family disputes deal with personal relationships that have gone awry.Therefore parties have more at stake than simply a legal claim since their family and therefore their emotions are involved. People in family courts are seeking more than a legal resolution, they are seeking a settlement and sometimes even a vindication of a deeply personal and intimate claim. See Law aboutAlternative Dispute Resolution (ADR): An Overview *1 at visited February 25, 2002). “Arbitration has been used in labor, construction and securities regulation, but is now gaining popularity in other business disputes.” Id.


[133] When children are introduced into the dispute, new concerns such as the impact of the litigation upon the child’s emotional well-being become an issue. See Schepard, supra note 20, at 405. “Research suggested that divorce has not, as had been optimistically assumed, a benefit for most children, but potentially the beginning of a downhill spiral with serious emotional, educational, and economic consequences…Rather than needing a stable relationship with a single psychological parent, children generally had important emotional relationships with both parents before divorce and benefited if such relationships continued after divorce.” Id.


[134] Id. at 405. “Serious rethinking of the judicial role in custody disputes began when evidence began to accumulate showing that for a child, divorce may be the legal dissolution of a marriage, but it is certainly not the dissolution of the importance of parent-child or parent-parent relationships.” Id. The philosophy behind using mediation to resolve disputes between parents also has the same motivation for its use in third party visitation. Like custodial disputes, third parties negotiating appropriate visitation also need to consider how to best acclimate a child so that they are comfortable with their changing circumstances. Although this need may not be as great as the need to maintain a relationship with a parent, the need is considerable. This is especially true when considering that, with the changing definition of family, many of these third parties seeking visitation are viewed as much of a parent as anyone who holds that legal title.


[135] It has already been established that litigation within the family does not have positive emotional effects on the child. In addition, litigation can have the additional negative effect of creating further hostility between family members so that any possibility of a win/win situation is eliminated. See Schepard, supranote 20 at 409. “Mediation attains full resolution in one-half, and partial resolution in two-thirds, of all custody and access disputes that enter court. In addition to resolving disputes, mediation generally results in greater consumer satisfaction, less expense and better parent-child and parent-parent relationships compared to adversary litigation.” Id.


[136] See infra Section IV(B): An Explanation Supporting the Likely Constitutionality of New York’s Two Nonparental Visitation Statutes. See also Hertz v. Hertz, 2002 N.Y. App. Div. LEXIS 2161 (2d Dept. 2002). New York’s most recent decision on the issue of third party visitation rights. Hertz is the second decision post Troxel, 530 U.S. 57, to hold that New York’s nonparental visitation statutes survive a constitutional challenge following the Troxel decision.


[137] But see infra Section III(B): Constitutional Concerns Regarding the Expansion of Third Party Rights From Nonparental Visitation Statutes (constructing a broad statute to confer standing to other “interested” parties has already caused constitutional problems because it infringes upon a parent’s Fourteenth Amendment Due Process right to control the care, custody, and management of their child).


[138] Since the mediation is nonbinding, both parties would always retain their opportunity to reject the mediation agreement, even after it is formed, and proceed to court instead.


[139] Michael Ratner, In the Aftermath of Troxel v. Granville: Is Mediation the Answer? 39 FAM. CT. REV. 454 (2001).


[140] Id. at 459-463. Ratner suggests that some benefits of court ordered mediation are its elimination of economic, psychological, and emotional burdens that the custodial parent and child would suffer from litigation. However, one negative concern provided was that mediation, because of its nonbinding nature, does not automatically prevent parties from going to court to resolve their differences . Still, the author turns this negative into a potential positive by claiming that the threat of litigation may give the parties further incentive to come to their own negotiated resolution. See id.


[141] Id. at 461. “Florida initiated the first mediation program in 1975, when it created the first court-connected mediation program to resolve community disputes. Florida has since opened its mediation doors to all types of litigated topics. Florida has authorized the referral of all family matters to include among others, matters arising from dissolution of marriage, paternity, child support, custodial care or access to children adoption emancipation proceedings, and declaratory judgment actions related to premarital, marital, or postmarital agreements. Furthermore, rule 12.740 states, “All contested family matters and issues may be referred to mediation.” Id.


[142] See discussion infra Section IV(C): Why Mediation Is Especially Suited to the Family Law Context


[143] Bargaining power can be very important in mediation in order to get both parties to reach a settlement. For example, although mediation is frequently advocated in the family law context, it is often rejected in high conflict custody cases or custody cases involving battered women. However, Andrew Schepard advocates the use of mediation in such contexts if it is done with a proper understanding of the issues at stake. See Schepard, supra note 20, at 419. “For too long, the domestic violence community and the mediation and parent education community viewed each other as adversaries. In gross terms, the domestic violence community viewed the mediation and parent education community as promoting parental cooperation without adequate understanding of the incidence and role of domestic violence in divorce and custody disputes and without adequate screening and safeguards for domestic violence victims in their programs. The mediation and parent education community, on the other hand sometimes viewed the domestic violence community as not recognizing the steps that were taken to protect violence and as not recognizing the child’s need for relationships with both parents in some cases where violence occurred.” Id.

But see Schepard, supra note 20, at 37, presenting the alternative argument. “Some suggested, for example, that mediation is not in the best interests of women because they have fewer resources and are more likely to make compromises for the sake of their children than men, and thus are easy targets for unscrupulous manipulation.” Id. A comparison to how third parties would feel in a mediation situation is not such a far stretch when one considers their lack of resources. How can a third party feel that they have anything to gain if they are aware that their bargaining position is not just inequitable, but actually nonexistent?


[144] See Troxel, 530 U.S. 57 . See also discussion infra Section V(b): A Look at the Future, for a further explanation of Justice Scalia’s reasoning.


[145] See Multari v. Sorrell, 2001 N.Y. App. Div. LEXIS 9308 (3rd Dept. 2001). The concurring opinion states that while there is not statutory standing for the petitoner former boyfriend, it is unfortunate that the law prohibits him from acting in a manner that would be in the best interests of the child. See id.


[146] See supra note 48. The presence of these nonparental visitation statutes in all fifty states demonstrates that there is congressional support of these statutes. See id.


[147] See supra note 5.


[148] Although Washington’s nonparental statute, WASH. REV. CODE §26.10.160(3), was held unconstitutionally broad, there is a movement to create more specific statutes that still have the effect of limiting the degree of control that a parent has over the upbringing of their child. See Rompala, supra note 58 at 1934, 1957 (advocating the legal recognition of coparents seeking visitation rights). See alsoDeWitt Gregory, supra note 54 at 352. The mere existence of this article demonstrates the push by legal strangers to expand the statutes to include new groups such as: coparents, stepparents, foster parents, grandparents, and other third party visitation. See id.


[149] 2001 N.Y. App. Div. LEXIS 9308 (3rd Dept. 2001).


[150] Id. at *10. “I cannot join in the majority’s narrow interpretation of the Court of Appeals’ decisions in Matter of Ronald FF v. Cindy GG 70 N.Y.2d 932, 511 and Matter of Allison D. v. Virginia M. 77 N.Y.2d 651, 569 so as to foreclose the assertion of the doctrine of equitable estoppel by a nonbiological or nonadoptive parent who seeks to establish standing to claim that visitation is in the best interest of the child.” Id. This argument flouts the traditional presumption that biology is the determining factor when labeling a party the legal parent. See id.


[151] Id. at *17-18. “If in custody and visitation disputes, common sense, reason and an overriding concern for the welfare of a child are to prevail over narrow selfish proclamations of biological primacy, the assertion of equitable estoppel by a nonbiological adoptive parent must be given credence by the courts. Therefore while I agree with the majority’s determination that petitioner herein lacked standing, I cannot concur with their narrow reasoning which shrinks the prerequisite of standing to a biological construct.” Id.


[152] There are conflicting arguments about whether it is really in the child’s best interests to have visitation with petitioning third parties. Although it is recognized that children will benefit from a loving relationship with their relatives, there is debate over whether these nonparental vistitation statutes serve this end since they are ordering visitation for families who are willing to litigate their differences. For this debate, see supra note 58.


[153] See Santosky v. Kramer, 455 U.S. 745, 753 (1982). “The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state. Even when blood relationships are strained parents retain a vital interest in preventing the irretrievable destruction of their family life.” Id.


[154] See Buss, supra note 13, at 279-281. Troxel provides the Supreme Court’s first, and perhaps only, word regarding the constitutionality of third party visitation statutes. However, the result reached by the Supreme Court remains unhelpful since in attempting to serve the interests of all parties, the court reached an untenable decision. It is impossible to preserve parental rights in the traditional fashion, recognize the interests of third parties and still promote the best interests of the child. To do so is to only create endless litigation with no certain standard for the courts to follow by asking the courts to do something that the United States Supreme Court and the legislature have been unable to do. See id.


[155] See discussion infra Section I(A): Meyer v. State of Nebraska and Its Progeny: Cases that Provide Support for a Parent’s Fundamental Liberty Interest to Control the Upbringing of Their Children.


[156] See Troxel, 530 U.S. at 91-93.


[157] Id. at 92 (2000). Justice Scalia contends that of the three holdings [based in substantive due process] that the Supreme Court has used to establish a fundamental liberty interest of parents to direct the upbringing of their children, two have been repudiated. See id. See also Tomaine, supra note 5, at 767.


[158] See Troxel, 530 U.S. at 92.


[159] See id. at 92. Justice Scalia acknowledges that this is not an issue before the court in this case since it was not raised by the parties. See id.


[160] See id. at 92. Justice Scalia recognizes that the face of the family is changing and that this is reflected in these new nonparental visitation statutes. Therefore he does not believe that judges, rather than the legislature, should tread upon what he considers to be new ground. No longer is the family unit the same as it was when these decisions were formulated. See id.


[161] See id. at 93. Since the roles of the parent are no longer viewed in isolation, the legislature should be free to promulgate statutes that represent these changes in societal structure. Justice Scalia invokes a counter-majoritarian argument claiming that if this is a new area of law (as he believes it is) it is best left to the elected legislature to determine how something should be applied. If there is a choice between the legislature creating new law or the judiciary, he would prefer to leave it to the legislature since that is the role that they were elected to fulfill. See id.

[162] See id. at 93. Justice Scalia believes this is important since the legislature, unlike the judiciary, is able to do harm in a more limited area since they are able to correct their mistakes more quickly and are removable by the electorate. Therefore, if the legislature believes that they should be expanding the spectrum of what it takes to constitute a family, they are the body of government that should be able to do so. See id.

[163] See supra note 83.

[164] With no clear rule handed down by the Supreme Court, state legislatures will continue to promulgate statutes with the hope that they are constitutional. Until the Supreme Court gives a greater indication of what is acceptable, states will be forced to make that determination on their own. SeeMorgan v. Grzesik, 732 N.Y.S.2d 773, 778 (4th Dept. 2001) (holding that the Troxel decision does not affect the constitutionality of DOM. REL. §72 and therefore, the petitioner grandmother has standing to seek and be awarded visitation). This is an example of allowing a third party, petitioner grandmother, visitation by distinguishing Troxel as inapplicable when considering the facts presented. See id.