Perhaps the best indication of the fracturing of the American family is that when we talk about court-ordered visitation, the discussion is no longer limited to parents. By the time the US Supreme Court first considered the constitutionality of statutes permitting non-parent visitation in 2000, in Troxel v. Granville, all fifty states had them. And it wasn't just grandparents or other relatives; the Washington law that the Court considered allowed "any person" to file a petition asking for visitation.
The Court struck that down as a violation of a parent's fundamental rights, which it properly deemed to include determining who got to see the child and how often. The Court held that this didn't mean that visitation could never be granted to a non-parent, simply that the statute in question was too broad, especially in failing to give any consideration to the parent's wishes.
Ohio's law on non-parent visitation was much more limited; RC 3109.11 gave the relatives of a deceased parent the right to petition for visitation, and RC 3109.12 gave that right to the relatives of the child if the mother is unmarried. The Ohio Supreme Court upheld those statutes two years ago by in Harold v. Collier, deciding that they gave appropriate consideration to the parents wishes.
But how much consideration should be given to those wishes was the subject of the 2nd District's decision last week in In re Madison C., where the Court reversed the grant of visitation to a maternal aunt. The reversal was largely due to the fact that the magistrate had considered nothing more than whether visitation was in the best interests of the child, and any reading of Troxel and Harold clearly indicates that more is required than that. The 2nd District focused on the term that both of those decisions had used in gauging the effect of parental wishes: that the courts were required to give "special weight" to those wishes. The appellate panel then looked at a host of other decisions, none remotely involving visitation issues, and determined that "special weight" meant "great deference."
Did the 2nd get it right? From a purely results-oriented approach, it's hard to say. These cases are always tragic, and this one was no exception: the maternal aunt had been a major factor in raising the child, who was three; the two had bonded, and the GAL recommended visitation. And, as usual with these cases, there were two sides to the story: the relationship between the mother and the aunt had become extremely acrimonious. But from the perspective or process, the court's decision is probably a good one, because of the greater emphasis it places on parental choice in the calculus of determining visitation rights.
Of course, as is often the case, the resolution of a legal issue often raises as many questions as it answers. What is needed to overcome that "special weight"? If the parent's wishes are unreasonable or insubstantial, is that sufficient to overcome any weight to be given their preference? Since the right to raise children is "fundamental," does that mean the non-parent visitation issue is subject to the "strict scrutiny" test, in which only the demonstration of a compelling government interest is sufficient to overcome the right? Would harm to the child from not allowing the visitation be enough?
One of the problems here is that the guidance from Troxel is muted, since it was only a plurality decision. The 2nd District took a further step along the road to proper analysis of the subject, but it was only a step.