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Troxel and the 2012 Revisions to Third-Party Grandparent Rights

Posted by attorney Joshua Guillory

The Louisiana Legislature made recent revisions to La. C.C. arts. 136 and 137 along with La. R.S. 9:344(D). These revisions make it much easier for grandparents to acquire visitation and custody of a minor child. Some view these revisions as allowing the Court directly analyze “the best interest of the child" standard as opposed to filtering its decision by safeguards covered under the law prior to these changes.

The ultimate issue and, in due course, the issue will be raised before our Louisiana Courts is whether these revisions violate a parent’s fundamental right to rear a child.

The Fourteenth Amendment to our United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The Court has long recognized that the Due Process Clause (both in the 5th and 14th Amendment) "guarantees more than fair process." Washington v. Glucksberg, 521 U.S. 702 (1997). In Reno v. Flores, 507 U.S. 292 (1993), the Court held that the Due Process Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests."

In Troxel v. Granville, 530 U.S. 57 (2000), the Court stated that the liberty interest at issue, the interest of parents in the care, custody, and control of their children, is “perhaps the oldest of the fundamental liberty interests recognized by this Court."

In Troxel, the Supreme Court ultimately grants parents the fundamental right to rear children. As Justice Oliver Wendell Holmes said quite frequently, “No right is absolute." Some believe that these revisions made by our Legislature make it easier for grandparents to acquire visitation and/or custody. That is, the “best interest of the child" standard will now be the only criteria that our Courts are analyzing in making a decision. As shown below, these revisions trample on the safeguards provided to parents. Like many laws enacted, the Legislature surely had good intent; however, this law is drafted in a manner that is vague and by-passes protections afforded to parents.

The Legislature, along with a very learned professor in family law, Professor Katherine Spaht, have asserted that these revisions do not violate our Constitution nor does it conflict with the holding in Troxel. An argument supporting this assertion will certainly rely on the insertion of “extraordinary circumstances" in La. R.S. 9:344(D). Placing “extraordinary circumstances" may be viewed as providing a Constitutional safeguard for parents in that the law continues to require a quasi two-prong test in determining custody for a third party (i.e. grandparent). This quasi two-prong test could be viewed as consisting of: 1) “Extraordinary circumstances; and 2) “Best interest of the child." Because the second prong would not be considered if the first prong (extraordinary circumstances) is not satisfied, proponents of these revisions may aver that “parental primacy" is protected because of this safeguard.

A very strong counter-argument can be made in that these revisions violate our U.S. Constitution under the holding in Troxel and the Court’s determination that a parent has the fundamental right to rear a child. There is no doubt that this fundamental right can be infringed upon, but such infringement should only occur after certain safeguards or protections designed to preserve parental primacy have been exhausted.

Strict scrutiny will be applied when an individual brings a Due Process claim against a state that is allegedly interfering with a fundamental right. Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the court held that in order for a state law infringing on one’s fundamental right to prevail, “the State would have to prove that the statue is supported by a compelling interest and is the most narrowly drawn means of achieving that end."

Bowers creates yet another two-prong test. The State will likely satisfy the first prong. For example, the Legislature can rely on its desire that every child have a stable and loving home. This desire may rise to the level of “compelling."

Even an assuming that the first prong of this test would be met, the State of Louisiana surely cannot meet the second prong of this inquiry under strict scrutiny. Specifically, there are other means of achieving the State’s goal that are far less restrictive. One example would be to keep the requirement that a parent be deemed unfit before the state takes into account the best interest of the child. The fundamental right to rear children cannot be more accurately described than to include the parent’s decision as to custody, care, and control of his or her child. Placing parents on an equal level as grandparents, tramples on the protections guaranteed by Troxel and should not survive strict scrutiny.

The decision in Troxel simply means that the government cannot infringe upon a parent’s right to direct the education and upbringing of their children unless it can show that it is using the least restrictive means to achieve a compelling governmental interest. The state of Louisiana can use least restrictive means to achieve is compelling interest. Accordingly, our Courts may be faced with fierce opposition to the Constitutionality of these revised articles and statute.

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