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Andrew Bergh
Andrew Bergh

October 9, 1997

The visitation of meanness

By ANDREW BERGH
Special to the Journal

Child custody battles produce losers, not winners. Children lose when they have to split time between two households instead of having one family under the same roof. And mom or dad always loses when the court awards custody to one parent but only visitation rights to the other.

But let's not ignore another branch of the family tree -- specifically, grandparents. Most of us would probably agree that when a marriage breaks up, the child's best interests are usually served by maintaining ties with Grandma and Granddad. (Like me, you may have fond memories of doting grandparents who spoiled you rotten.)

As shown by Visitation of Troxel, however, grandparents sometimes become second class citizens when the right to visit their grandkids is at stake. In that case, the paternal grandparents of two young girls were ultimately barred from even seeking visitation rights, let alone receiving them.

The Troxel case involves a relationship between Tommie Wynn and Brad Troxel that went down the tubes in June 1991. At the time they broke up, the couple had two infant daughters named Natalie and Isabelle. Following the separation, Brad lived full-time with his parents, Jenifer and Gary Troxel, and regularly brought his girls to their house for weekend visits. This arrangement lasted approximately two years until Brad tragically committed suicide in May 1993.

After their son's death, the Troxels continued to see Natalie and Isabelle on a regular basis, but with no overnight stays. This changed abruptly in Oct. 1993, when Wynn told them she wanted to restrict visitation to just one short visit each month. Declining this offer, two months later the grandparents filed a visitation petition in Skagit County Superior Court. In April 1994, they successfully requested a temporary visitation order with trial still eight months away.

When the matter went to trial in Dec. 1994, Natalie and Isabelle were five and almost three years old. The Troxels didn't ask for the farm, instead limiting their request to two weekends per month and two weeks during the summer. Wynn, who by then was remarried, countered by asking the court for visitation of only one day per month, with no overnight stays.

Par for the course, the trial court reached a compromise. In its visitation decree, the court awarded the grandparents one weekend visit each month, one week during the summer, and four hours on each granddaughter's birthday. Unwilling to throw in the towel, Wynn appealed.

In her appeal, Wynn threw her former in-laws a mean curve ball. Although the Troxels had based their petition on a Washington statute allowing "any person" to pursue visitation rights "at any time," Wynn argued they never should have been allowed to even bring their petition. The controlling law, mom claimed, was a different statute that says visitation issues can only be raised in custody actions between parents. (This same statute also allows third parties to initiate custody proceedings where the custodial parent is allegedly unfit. The Troxels, who just wanted to spend time with their grandkids, never claimed Wynn was an unfit mother.)

By a 2-1 margin, our state appeals court sided with Wynn. The problem, the court said, was to discern the intent of the Legislature. On the one hand, our lawmakers have passed a law saying visitation issues can only be raised in custody disputes between parents. But in another law -- the one relied upon by the Troxels -- they say visitation rights can be claimed at any time by any party, including nonparents. Trying its best to reconcile both statutes, the court ultimately said the inconsistency was an unintentional oversight, and that our lawmakers only intended to let visitation issues be raised by third parties in custody actions.

Personally, I much prefer the reasoning of the dissent. There's a vast difference, the judge said, between custody and visitation petitions. In custody proceedings, one parent strives for permanent care and control of the child, to the exclusion of the other. But in visitation proceedings, a parent (or third party) merely asks for time with the child to be shared. That being the case, said the dissenter, it's perfectly understandable why our lawmakers would relax the requirements in visitation cases.

If the Troxels were the worst grandparents in the world, then I'd agree visitation should be denied. But when there's no allegation of unfitness on their part, it just doesn't seem right to say they can never again see their granddaughters. If they've got the fortitude and deep enough pockets, I hope they try to convince our state Supreme Court otherwise.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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