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Article Excerpt
I. INTRODUCTION
Visitation with children has been in the public and legal limelight for several decades. Despite the enormous interest evoked by this issue and the extensive concern with this right, confusion and dissatisfaction with existing legal rules surrounding visitation has only intensified. This article argues that the perplexity surrounding this issue reflects the absence of an underlying theory of visitation that would specify the interests and values that a right to visitation should aim to protect. It is further argued that the current perception of visitation rights as parental rights and the attempts to resolve the dilemmas prompted by visitation within a parental rights context thwart the development of a theory of visitation. The article proposes an alternative perspective on these dilemmas that challenges the fundamental premise of visitation as a parental right and as an integral component of the rights cluster associated with parental status. Instead, it is suggested to understand the right to visitation as independent of the cluster of rights associated with parental status and based on relational values.
In rejecting the understanding of visitation rights as parental rights, this article does not follow the child advocates' view of visitation rights merely as children's rights. Rather, visitation rights are considered as adults' rights. (1) Nevertheless, it is argued that the law's distinction between different adult claimants based on their parental status (or lack thereof) is flawed. This article seeks to redirect the law concerning adults' claims to enjoy relationships with children toward a legal model based on relational interests and on the needs of both children and adults.
The first part of the article deals with the current view of visitation as a parental right and with the implications of this perception. It describes the legal rules based on this approach, which distinguish between claimants of visitation rights on grounds of parental status or lack thereof. Then it addresses the growing critique of traditional visitation rules in the wake of extensive changes in family structure and their effect on the meaningful relationships that children form with adults, whether or not they are legally recognized as their parents. Following, there is an examination of the legislative and judicial reactions to this critique and the deep confusion that plagues this area of law, which culminated in the Troxel v. Granville (2) decision of the Supreme Court.
The article argues that the current confusion concerning visitation can be attributed to the existence of two separate and conflicting notions of visitation appearing in case law, legislation, and jurisprudence. The first and more overt notion emphasizes the underlying relational values, which recognize the interests of adults who have nurtured and cared for children and enable children to maintain significant relationships in their lives. The second and more implicit notion embodies remnants of the perception of children as their parents' property, extolling the institution of marriage and the nuclear family as the preferred model. The co-existence of these two conflicting subtexts within visitation jurisprudence thwarts the development of a visitation theory and perpetuates turmoil in this legal domain.
The article demonstrates that the understanding of visitation as a parental right, which marginalizes the nurture and care of children and disregards their relational interests, is incompatible with a relational understating of visitation. Only by detaching visitation from the cluster of rights, privileges, and responsibilities comprised in parental status can we begin to construe it as a relational right and develop a coherent visitation theory.
Detaching visitation from the bundle of rights associated with parenthood will transform not only the right to visitation but legal parenthood itself, strengthening the tie between child rearing and rights considered parental. Note that, although this article seeks to detach one element from the cluster of rights associated with parenthood, it does not pave the way for the unbundling of legal parenthood. Parental status is significant, and, at least partly, this significance stems from the exclusiveness of the parental status. An additional advantage of the proposal made in this article, then, is that it enables the preservation of parental exclusivity while recognizing the visitation rights of both parents and non-parents.
II. VISITATION AS A PARENTAL RIGHT
The right to visitation is generally perceived as a parental right, part of the cluster of rights associated with parental status. This understanding is evident mainly in two basic principles of visitation rules. First, visitation rights are considered to arise from the very fact of parenthood, so that parents are entitled to this right simply by being legally recognized as parents. Second, visitation rights are subject to the general rule of parental exclusivity: only a child's legal parents have rights considered parental, and "non-parents cannot acquire them." (3) Thus, whereas parents are usually entitled to visitation, non-parents are not. Note that a right to visitation, as opposed to merely a privilege to visit a child, also entails a duty. (4) Custodial parents in particular are under a minimal duty of non-interference toward a person granted visitation rights.
A. Parental Visitation Rights
Parents' rights to visitation are considered natural, inherent, and arising from the very fact of parenthood. (5) The parental right of visitation is considered, absent custody, to protect the parents' interest in the companionship of their children. (6) Parental visitation rights are strong and granted as a matter of entitlement, so that courts are usually reluctant to deny them or even restrict them. (7)
Ostensibly, parents' visitation rights are subject to the "best interest of the child" standard, but this is not an accurate description of the law as presently applied. (8) Visitation rights are granted to parents even when the parent making the request has never lived with the child or never demonstrated any willingness or even any desire to have custody of the child. (9) Most courts are averse to deny visitation to legally recognized parents, even in cases of abusive parents, where supervised visitation seems sufficient to guard the child against serious danger. (10) Even where a child expresses unwillingness to spend time with the parent, courts will generally refuse to deny or suspend parents' visitations, which are routinely ordered over children's objections. (11) Indeed, a parent will be denied visitation rights only under exceptional and rare circumstances, usually when there is a clear showing of physical or emotional danger to the child. (12)
Some scholars have even suggested that parental visitation rights are constitutionally protected. (13) So far, no Supreme Court case has overtly recognized visitation as a fundamental interest of non-custodial parents, entitling them to substantial due process. Nevertheless, several decisions have recognized the interests of non-custodial parents in having a relationship with their children as a liberty interest sufficient to warrant application of the procedural due process doctrine. (14) Federal and state courts have occasionally interpreted these Supreme Court rulings as suggesting that parental visitation rights are constitutionally protected. (15) Other courts, however, have declined to recognize constitutional protection of parental visitation rights. (16)
While the constitutionality of parents' visitation rights is still undecided, the strength of parental visitation rights is unquestionable. (17) For purposes of this article, doubts over the constitutionality of parental visitation rights attest that these rights represent an exception in the cluster of rights associated with parenthood. Visitation provides the only means to enable a non-custodial parent to maintain a relationship with the child. In essence, denying visitation is tantamount to terminating the parental rights of the non-custodial parent. Nevertheless, the constitutionality of parents' visitation rights remains debatable, unlike other parental rights associated with custody whose constitutionality has long been recognized. (18)
B. The Traditional View: Denying Visitation Rights to Non-Parents
Since visitation is considered part of the cluster of rights associated with parenthood, non-parents have usually been barred from claiming visitation rights. Contrary to the almost absolute right of parents to visitation, the interests of non-parents in developing or maintaining relationships with children have not traditionally been respected, absent special circumstances, legal recognition, or protection. (19) The law has created a stark dichotomy between "parents" and "non-parents," and parenthood has generally been considered an exclusive status where only a child's legal parents could claim rights with respect to the child. (20) More recently, as is discussed in more detail in another section, some exceptions have emerged to the complete exclusivity of parenthood. (21) Nevertheless, barring special statutory provisions, non-parents are not held to have any rights to visitation, constitutional or otherwise.
When non-parents seek to protect their interests in a relationship with a child by making a claim for visitation, they often encounter the countervailing (constitutional) rights of parents. The United States Constitution has long been construed to protect parents' exclusive authority to make childrearing decisions, (22) including the right to decide with whom their children shall associate. (23) Legally, non-parents are often considered "outsiders" who threaten the parent-child relationship. Non-parents may be characterized as "third parties" and even "strangers" to a child, especially when the legal system assesses their request for visitation. (24) This understanding involves implications for their visitation claims as well because, under the Constitution, a right to privacy is recognized in families and in the parent-child relationship, giving them a private realm that cannot be entered. (25) The Constitution, then, has also been interpreted as providing shelter to the parent-child relationship by creating a boundary that protects parents and their children from outside interference. (26)
III. CHALLENGING TRADITIONAL VISITATION RULES
The last decades of the twentieth century witnessed growing unease with traditional legal conceptions of family and parenthood, including traditional visitation laws. The main reason for the ongoing discontent with existing laws has been the changing reality of the American family, partly due to changes in social norms: the high rate of divorce, the growing numbers of blended (or "step") families and of single-parent families, the increase in the proportion of children born outside of marriage, and the emergence of new gay and lesbian families. (27) In addition, advancements in medical technology have radically expanded the range of procreative possibilities, undermining traditional conceptions of procreation and parenthood. (28)
This confluence of changing social norms and advancement in reproductive technologies has had a tremendous effect on the family relationships between children and adults. An ever increasing number of children have begun to form strong and meaningful attachments with adults who are not legally recognized as their parents, and these relationships have challenged the legal system in a multitude of ways. (29) With visitation defined as a parental right and parenthood as exclusive, these relationships between children and non-parental adults have been denied recognition and protection under the law. Stepparents, partners of legal parents, grandparents, surrogate mothers, foster-parents--all have sought and generally failed to protect their interest in continuing their relationships with children by claiming visitation rights. (30) Their stories exemplify the ever-increasing disjunction between the new reality of people's lives and the dominant legal norms, and have captured public as well as academic attention. (31)
When legal rules cease to relate to people's actual lives, their justification is significantly undermined, hence the extensive criticism of family law in general and of existing visitation laws in particular. (32) The law's failure to protect the meaningful relationships shared by children and adults and its seeming disregard for their respective relational interests have yielded various proposals for its modification. In all fifty states, legislative and judicial initiatives have attempted to adapt the law to "the changing realities of the American family." (33)
The main change adopted in the various reforms has been the erosion of parental exclusivity concerning visitation and the recognition of visitation rights for various non-parents. This move has generated an intense debate, which is still ongoing: How can parental authority on child-rearing decisions be reconciled with the associational interests of both children and adults and with the best interest of the child standard? What place is there for parental exclusivity in the changing reality of family life? Whose interest in access to the child should be legally recognized and protected? What should be the basis for recognizing individuals' visitation rights?
These and various other dilemmas remain unresolved. In the following sections, this article reviews the legal reforms and the legal chaos surrounding visitation issues, which culminated in Troxel v. Granville and suggest that the turmoil and the impasse on the visitation issue can be attributed to the lack of an underlying theory of visitation.
IV. THE VISITATION DEBATE
A. The Disarray in Third-Party Visitation Statutes
Recognizing the changes affecting the American family, the legal system began to deviate from parental exclusivity on the issue of visitation and to acknowledge relationships between children and non-parents, inter alia, by enacting various third-party visitation statutes. Like most matters of family law, visitation issues are subject to state discretion, and all states have indeed recognized some form of third party visitation. (34) The common denominator of all the different statutes is the perception of visitation as a parental right. When recognized, visitation by non-parents is regarded as the exception. Except for this feature, however, the statutes and the case law concerning non-parents' visitation are "dazzlingly varied," and even a cursory review of them is sufficient to reveal vast inconsistencies and confusion. (35)
States diverge significantly as to who may be entitled to visitation rights. Although every state has enacted legislation according some visitation rights to grandparents, the circumstances under which visitation will be granted differ significantly from state to state. (36) Only about one-third of states provide for visitation by stepparents in their legislation, either expressly or in language that is broad enough to include them, (37) and state courts addressing visitation rights of stepparents have arrived at different conclusions. (38) The uncertainty and lack of consistency intensify with regard to other interested parties, such as foster parents, siblings, uncles, and cousins. Such interested parties have rarely been accorded visitation rights in states' legislation, and the courts have varied widely on whether they should be. (39)
State laws, however, differ not only on who may seek visitation, but also regarding the circumstances in which visitation rights should be granted to nonparents and on the substantive standards that should govern the decision. (40) To give but a few examples: states differ on whether or not a disruption in family relations in the form of death or divorce is a precondition for awarding visitation to non-parents, or whether other requirements, such as mediation, should also be met prior to such a decision. (41) Visitation laws are indeed as varied as the different states, and the prevalent confusion is also evident in the frequent changes various states make in third-party visitation laws. (42)
Differences in third-party visitations laws between states are not intrinsically problematic and do not constitute a violation of "integrity," in Dworkin's terms. (43) Family matters always involve conflicting interests and policy considerations. Whenever children are concerned, emotions also tend to run high. Varied political and social forces have also influenced state legislation on visitation. (44) With so many interests, policy considerations, and emotions at play, and with intuitions pointing in conflicting directions, it is not surprising that people disagree on what the law should be and only plausible, and even inevitable, that different states should have developed different non-parents' visitation regimes.
This article's critique, then, does not target the variance in visitation rules for non-parents, although this fact alone can cause great uncertainty to family members. (45) The objection is to the lack of any principle or theory underlying the current variations of visitation laws among states. Statutes and case law on this issue were triggered by the rapidly changing social reality and by the pressures exerted by various political groups. Instead of developing these changes on solid theoretical grounds, stating the nature of visitation rights, the values that should underlie them, and how to reconcile these rights with parental authority, these changes seem like erratic, ad hoc responses to perceived injustices. (46) Hence, they fail to offer a calculated and coherent scheme that could serve as a basis for alternative jurisprudence. This disarray is evident in Troxel v. Granville, (47) the 2000 Supreme Court ruling that addressed the constitutionality of third party visitation statutes.
B. Troxel v. Granville and Its Aftermath
The extent to which third party visitation statutes infringe the constitutional rights of parents to make child rearing decisions has long been a contested issue. (48) Although various state supreme courts reached mixed rulings on this question during the 1990s, (49) the Supreme Court had denied review of cases involving third-party visitation prior to granting certiorari in Troxel. (50) The Court's decision to hear Troxel, therefore, generated expectations that the ruling would clarify some of the concerns pertaining to this issue. These expectations, however, were to be disappointed.
The statute under consideration at Troxel was a law permitting "any person" to petition for visitation rights "at any time," whenever such visitation was seen to be in the child's best interest. (51) Acting under this statute, a family court judge ordered the broadening of visitation rights granted to the children's paternal grandparents, contrary to the wishes of the children's mother.
The Court issued no majority opinion in this case. The Court was deeply split and issued six separate opinions. The Justices disagreed about whether the case should have been granted certiorari and, if so, whether it should have been considered as a facial or an as-applied challenge; about the scope, if any, of the proper constitutional protection accorded to parental rights; about whose interests should have been considered; and about various additional matters. (52) Justice O'Connor's plurality opinion, joined by three other Justices, digressed to fact-specific grounds and concluded that, on the facts of the case, the Washington family court had failed to show adequate deference for the mother's decision. (53)
The lack of a majority, the multiplicity of opinions, and the confusion characterizing each opinion have provided fertile ground for diverse and even contradictory interpretations of Troxel. Indeed, non-parental visitation cases attempting to follow the Troxel precedent are mixed and confused. Courts in different states have interpreted Troxel differently and even within states, variant understandings of Troxel have led to contradictory rulings as to the constitutionality of state statutes. (54) Troxel has also proven a rich vein for extensive academic attempts to discern the case's meaning and implications. (55) Not surprisingly, these scholarly analyses also offer contradictory readings of the case and its various opinions. (56) In many respects, Troxel seems to have only triggered further doubts regarding non-parents' visitation rights. (57) The confusion exposed in Troxel is exacerbated by the perplexity surrounding the meaning of legal parenthood.
C. The Malleability of Parental Status
The swift and extensive changes in family patterns and norms over the last decades have significantly challenged traditional conceptions of parenthood. Thus far, current law has failed to keep up with changing social norms and biotechnological changes; it has not produced clear and stable new principles by which legal parenthood can be determined. Questions about motherhood and fatherhood in cases of surrogacy, sperm donation, same-sex families, children born out of wedlock, and other family situations still occupy legislators and judges. (58) The problem of deciding who is a parent carries significant implications for visitation issues. Since visitation is considered a parental right, deciding whether a claimant for visitation is a parent and thus prima facie entitled to visitation, or a non-parent and thus generally not entitled to this right, is key to determining visitation rights. Given that legal parenthood is fluid, open, and indeterminate, distinguishing claimants who are parents from...
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