Troxel and the Rhetoric of Associational Respect
David J. Herring
University of New Mexico School of Law
University of Pittsburgh Law Review, Vol. 62, p. 649, 2001
U. of Pittsburgh Legal Studies Research
A recent decision by the United States Supreme Court has brought into sharp focus important questions about the nature and extent of parents' prerogatives to dictate how their children are raised. In the case of Troxel v. Granville, the Court addressed a Washington third-party visitation statute that permitted "any person" to petition for visitation with a child. Under the statute, a petitioner had to allege that visitation would serve the child's best interest. A judge hearing such a petition could order visitation whenever he or she found that such visitation may serve the child's best interest.
The United States Supreme Court's consideration of the Washington statute resulted in a splintered array of opinions that call for a serious and full public discussion of third-party visitation statutes. Justice Scalia's opinion opens the door to such a discussion by moving the issues away from constitutional rights rhetoric that only leads to confusion and stalemate in discussions of family policies and issues. He wisely calls for the public discussion and debate to begin. The participants in this public discussion would be well served by a deep and probing consideration of the family's political functions within a large pluralistic democracy.
Number of Pages in PDF File: 27
Keywords: Troxel v. Granville, parents' prerogatives, child's best interest, third party visitation statutes, rights of custodial parents, parental rights, children's rights, political functions of the familyAccepted Paper Series
Date posted: February 8, 2009
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