In 1999, the Supreme Court of Washington invalidated two Washington State statutes that permit a court to grant visitation to third parties, including grandparents, when the court finds that this is in the child's best interest. The Washington court (with four justices dissenting) struck down the laws as violating the due process clause of the 14^th Amendment of the U.S. Constitution, by violating the fundamental rights of children and their parents to family privacy and autonomy. (137 Wash.2d 1, 969 P.2d 21)

The breakdown of traditional two-parent families, driven by high rates of out-of-wedlock childbirth and divorce, combined with high rates of drug addiction, have caused more and more grandparents to assume substantial responsibility for rearing their grandchildren. As a result, all fifty states have enacted some kind of grandparent visitation statutes, supported by a broad constituency of older Americans and the AARP.^[1]

Troxel arose from a family tragedy. Tommy Granville and Brad Troxel had two children but never married. The children regularly visited their father and paternal grandparents after the couple separated and the father returned home to live with his parents. The grandparents continued to visit with the children after Brad committed suicide in 1993. The mother never considered ending the Troxels' visitation, but did reduce the frequency of the visits after she remarried. The Troxels' petition for court-ordered visitation, granted by the trial court, was overturned on two State court appeals.

In a decision without a majority, on June 5, 2000, the United States Supreme Court affirmed the Washington decision. Justice O'Connor, writing a plurality opinion for herself, Chief Justice Rehnquist, Justice Ginsburg and Justice Breyer, found the Washington statute "breathtakingly broad" since it allowed "[a]ny person to petition for visitation at any time." The statute also "contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever." The decision notes that a trial court is permitted to disregard and overturn a parental decision of a fit parent regarding visitation when a third party files a petition, based on a best-interest of the child determination by the judge.

The court found the trial court's findings in support of the visitation insufficient. Justice O'Connor's opinion points out that this was not a case where the grandparents had been cut off from seeing the children but rather a dispute as to how often and under what circumstances the visits would take place.

Justice O'Connor concluded that the Washington statute, as applied to Ms. Granville as a fit custodial parent and her family, violates the parent's due process right to make decisions concerning the care, custody and control of her children. However, because the decision rests on the breadth of the Washington statute and its application in this case, the Court did not consider whether a "showing of harm or potential harm" was required before such visitation could be granted. Nor does the decision "decide the precise scope of the parental due process right in the visitation context."

Justice Souter and Justice Thomas issued separate concurring opinions while Justice Stevens, Justice Scalia and Justice Kennedy each issued a separate dissent.

Many authorities believe the case has implications beyond grandparents' rights. "In this age of single parents, gay parenting couples, test-tube babies and other nontraditional relationships, how will the law deal with the fact that many people, not just the biological mother and father, may have a real interest in a child and that the child may have a real interest in a relationship with them?"^[2] While no FFP is paid to States for custody, visitation and parenting activities, Troxel will still interest child support agencies, which increasingly are involved in such matters through visitation and fatherhood grant projects.

Troxel does not invalidate all third party visitation statutes. However, it appears that such statutes will fare best if they contain a heightened burden of proof imposed on a party seeking visitation contrary to the wishes of a fit custodial parent. Additionally, this decision does underscore the need for trial courts to make detailed findings of fact when favoring nonparental visitation, including the degree to which the child and the third party have an existing substantial relationship.

In a 5-4 decision, in which Justice Rehnquist wrote the majority opinion, the United States Supreme Court affirmed the decision of the Federal Court of Appeals for the Fourth Circuit that Congress exceeded its constitutional authority when it enacted section 13981 of the Violence Against Women Act (VAWA) of 1994. This case is important not only for its immediate impact striking the civil rights provision of VAWA, but also for the further restriction of Congress' ability to enact laws that may infringe upon the historic jurisdiction of States and its refusal to give Congressional legislative findings deference.

Section 13981, also called the civil rights provision of VAWA, states that all persons in the U.S. have the right to be free from crimes of violence motivated by gender. The section defines these crimes as those committed because of gender or on the basis of gender and due, at least in part, to an animus based on the victim's gender. It also gives a litigant a choice of forums, with Federal and State courts having concurrent jurisdiction over complaints brought pursuant to it.

Morrison had its genesis in allegations that two football players repeatedly raped Christy Brzonkala in a University dormitory during the fall of her freshman year at Virginia Polytechnic Institute (Virginia Tech). After the attack, one of the football players, Antonio Morrison, made vulgar comments in the school cafeteria about what he liked to do to women. Brzonkala filed a complaint pursuant to the University's sexual assault policy. After a hearing, Morrison was found guilty of sexual assault and sentenced to immediate suspension for two semesters. A State grand jury found insufficient evidence to charge either man with a crime.

In December of 1995, after Virginia Tech had set aside Morrison's punishment as "excessive," Christy Brzonkala withdrew from Virginia Tech and sued both football players and Virginia Tech in the United States District Court for the Western District of Virginia. She claimed that the football players' attack violated section 13981 and Virginia Tech's handling of her complaint violated Title IX of the Education Amendments of 1972. The District Court dismissed the title IX claim for failure to state a claim upon which relief can be granted. It held that Brzonkala's complaint stated a case against the football players under section 13981, but dismissed it because it found that Congress lacked authority to enact it under both the Commerce Clause and section 5 of the Fourteenth Amendment. On appeal, an en banc Court of Appeals affirmed the District Court's decision that Brzonkala's case stated a claim because of the attack and Morrison's remarks indicating that his crime was sufficiently motivated by gender animus. By a divided vote, the Court of Appeals nevertheless affirmed the District Court's holding that Congress lacked Constitutional Authority to enact 13981.

The Federal government intervened in the suit to defend the law and 36 States filed briefs supporting the law.

In its opinion, the Supreme Court noted that when Congress passed VAWA in 1994, it specifically exempted State law claims for divorce, alimony, distribution of property, and child custody cases from the scope of section 13981. Congress also had extensive findings on the adverse economic impact of domestic violence upon interstate commerce.