All In The Family

(CBS)  Don't worry, grandma and grandpa.

You'll still get to see your beloved grandchildren. That is, unless you happen to get involved in a dispute with the children's parents which causes them to draw the line and halt your visits.

And in that case, the law in Washington state probably wasn't going to help you much anyway.

As for the rest of you, well, don't count on too many laws in too many states to help you get visitation rights to another family's children. You'll just have to get those rights by agreement with the family or through some extraordinary judicial intervention -- which happens once in a blue moon.

That's about the simplest way I know to explain the effect of Monday's Supreme Court ruling invalidating a Washington state law which allowed anyone to ask a judge for visitation rights to a child. In a 6-3 opinion, the Court ruled that a parent's constitutional right to raise his or her child trumps a state law that is designed to challenge those rights, even if the state law might make some sense in some situations.

Put another way, the Court was unwilling to recognize that biological grandparents might also have a constitutional right to have court-ordered access to their grandchildren.

But in evaluating the state law and Monday's decision, you might want to remember that despite all the talk about this case being about "grandparents' rights," this wasn't a case only about "grandparents' rights." The Washington statute allowed anyone -- a baby-sitter, a teacher, a child's car pool driver, for example -- to seek visitation rights against a parent's wishes. And I suspect that the sheer scope of the law, the broad number of people who potentially could take advantage of it, made a majority of the Justices nervous enough to void the statute on a variety of legal grounds.

Four justices agreed on the same reasoning. Justice Sandra Day O'Connor, a grandparent herself, wrote that "so long as a parent adequately cares for his or her children... there will normally be no reason for the state to inject itself into the private realm of the family..."

Two other justices agreed with the result for slightly different reasons. And three justices -- representing the entire political spectrum of the Court -- dissented. Justice John Paul Stevens, who wrote the dissent, said that Washington's law "merely gives an individual - with whom a child may have an established relationship - the procedural right to ask the state to act as arbiter, through the entirely well-known best-interests standard."

All of the justices made it clear that their ruling applied only to the Washington state law and not necessarily to similar, but not identical, laws in the other 49 states. That means that Monday's ruling doesn't necessarily mean the end of these sorts of laws around the nation.

It means, however, that lawmakers in Washington state and around the country now will have to evalate what the opinion means to their particular laws in their particular states and we could very well see some tinkering with these laws to pull them in line with the Court's decision.

Finally, since all things these days eventually revert back to Elian, we now have a timely glimpse of how the Supreme Court might rule if it is ever asked to chime in on the Gonzalez case.

The Court's main opinion Monday clearly suggests that it would look very favorably upon the arguments made by Juan Miguel Gonzalez that he be allowed to return to Cuba with his little boy. After all, if the Court says that a parent's right to care for his child trumps a state law, it stands to reason that it would rule that those rights trump the rights of Elian's Miami relatives who have neither a state law nor federal policy to stand on.


Written by Andrew Cohen
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