Archive for the ‘Troxel v. Granville’ Category

Parental Alienation and Hostile Aggressive Parenting

In Alienation of Affection, Best Interest of the Child, Child Custody, Child Support, child trafficking, children legal status, children's behaviour, Childrens Rights, Department of Social Servies, Divorce, Domestic Relations, Domestic Violence, Family Court Reform, Family Rights, fatherlessness, fathers rights, Intentional Infliction of Emotional Distress, Liberty, Marriage, Non-custodial fathers, Non-custodial mothers, parental alienation, Parental Alienation Syndrome, Parental Kidnapping, Parental Relocation, parental rights, Parental Rights Amendment, Parentectomy, Parents rights, Restraining Orders, Rooker-Feldman Doctrine, Torts, Troxel v. Granville on July 6, 2009 at 11:00 pm

Parental Alienation and Hostile Aggressive Parenting are harmful to children’s emotional and mental health.

What is Hostile Aggressive Parenting?


Hostile Aggressive Parenting (HAP) is defined as : A general pattern of behaviour, manipulation, actions or decision-making of a person (usually a parent or guardian) that either directly or indirectly; 1) creates undue difficulties or interferences in the relationship of a child with another person (usually a parent or guardian) involved with the parenting and/or rearing of the child and/or, 2) promotes or maintains an unwarranted unfairness or inequality in the parenting arrangements between a child’s parents and/or guardians and/or, 3) promotes ongoing and unnecessary conflict between parents and/or guardians which adversely affects the parenting, well-being and rearing of a child.

Hostile-Aggressive Parenting is most apparent in child-custody disputes and is used most often as a tool to align the child with one of the parents during litigation over custody or control of the child. However, HAP can be present in almost any situation where two or more people involved in a child’s life are at odds with each other over how a child may be raised or influenced by the parties. HAP can be present to some extent even when couples are still living together.

Although Hostile-Aggressive Parenting is often confused with Parental Alienation Syndrome (PAS), a term coined by Dr. Richard Gardner, HAP and PAS are not the same. HAP refers to the behaviours, actions and decisions of a person, whereas, PAS relates to the psychological condition of the child. In the vast majority of cases HAP is the cause of PAS.

Hostile-Aggressive Parenting is not limited to the biological parents but also applies to any guardian – grandparents, extended family members, daycare providers and to any other person who may be involved in caring and rearing of a child. In some cases, it may even involve a parent in dispute with the child’s grandparents, sometimes the parent’s very own parent! Any form of interference to a normal, healthy relationship between a child and a person (most often one of the parents) caused by another person or agency having some control or influence over the child, is wrong and ultimately causes emotional and psychological harm to the child. Throughout this document the word “parent” shall be considered synonymous with “guardian”.

Hostile-Aggressive Parenting is a very serious and damaging form of abuse and maltreatment that parents and even other family members can engage in. HAP is most often identified in individuals with controlling and bullying personalities or those with mild to severe personality disorders. HAP can be a factor in all types of parenting arrangements including sole maternal custody, sole paternal custody and joint custody. Interestingly, it is sole custodial parents who are most often reported to practice Hostile-Aggressive-Parenting, especially in its most severe form.

In general, parents exhibiting Hostile-Aggressive-Parenting have not succeeded in getting on with their own life and remain, instead, controlled by their negative emotions and continue to exercise power and control over their ex-spouse’s life, their ex-spouse’s parenting and to a large extent, over the children of the relationship as well. HAP parents will blame everyone else except themselves.

High degrees of conflict during custody settlements and litigation are almost sure signs in these affected families. Hostile-aggressive parents are unable to appreciate the needs of their child and in many cases view their child as a possession belonging to them and no other persons have any right to the child, especially not the child’s other parent or other persons that the HAP parent does not like. Hostile-aggressive parents will use the child as a weapon against the other spouse and family members whenever they have the opportunity. A parent engaged in Hostile-Aggressive Parenting will also take comfort in that the community in general will choose not to get involved, probably because they don’t know what to do. Angry and vindictive HAP parents are often able to bring a reign of terror and revenge on to a non-custodial parent and their family, their goal being to get them out of the child’s life or at the very least to severely damage their child’s relationship with the other parent and other parent’s family.

Hostile-Aggressive Parenting is considered by many health care and legal experts unhealthy, anti-social, abusive behaviour which is emotionally damaging and contrary interest of a child. Simply stated, it is dysfunctional parenting, emotional child abuse parent who is the target of Hostile-Aggressive Parenting, a form of discrimination.

The Aftermath of Troxel v. Granville

In Alienation of Affection, Best Interest of the Child, Child Custody, children legal status, Childrens Rights, Civil Rights, Divorce, Domestic Relations, due process rights, Family Court Reform, Family Rights, fatherlessness, fathers rights, motherlessness, mothers rights, parental alienation, Parental Alienation Syndrome, Parents rights, Troxel v. Granville on June 12, 2009 at 1:40 pm

© 2000 National Legal Research Group, Inc.

On June 5, 2000, the United States Supreme Court decided the case of Troxel v. Granville, 68 U.S.L.W. 4458, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). See Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101 (June 2000). In Troxel, the Court invalidated Washington State’s visitation statute as an unconstitutional intrusion into a parent’s fundamental liberty interest in raising a child as the parent sees fit.

As noted in our previous article, the problem addressed by the plurality opinion was that the statute was “breathtakingly broad,” granting any third party standing to assert visitation rights at any time, with the decision on whether to grant that visitation request in the hands of a judge whose only standard was the best interests of the child. Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101, 105 (June 2000).

Although Troxel was not handed down by our United States Supreme Court until this year, the fundamental rights of parents, to the exclusion of others, have long been recognized through the Due Process Clause of the Fourteenth Amendment. Troxel more clearly and more definitively sets forth those “liberty” interests afforded parents through that Amendment. According to Troxel:

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v. Glucksberg, 521 U.S. 702, 719, 117 S. Ct. 2258 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id. at 720, 117 S. Ct. 2258; see also Reno v. Flores, 507 U.S. 292, 301-302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993).

Troxel v. Granville
, 120 S. Ct. at 2059-60.

Parental rights, however, are not absolute. These same Supreme Court cases also acknowledge the states’ strong parens patriae interest in the welfare of children and in the structure and stability of the family. See, e.g., Santosky v. Kramer, 455 U.S. 745, 766 (1982); Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).

Thus, the states still retain “a wide range of power for limiting parental freedom and authority in things affecting [a] child’s welfare” and also in regard to “regulation in the public interest.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972) (recognizing that parent’s power may be subject to limitation if court determines that parental decision has potential for significant social burden). By way of example, compulsory schooling for children under sixteen, child labor laws, and mental health commitment procedures for minors have been upheld as permissible state regulations even when they conflict with parental decisionmaking. Wisconsin v. Yoder, 406 U.S. 205, 228 (1972) (state’s power to compel school attendance up to certain age, make reasonable regulations for all schools, and prescribe curriculum for public schools is undiminished by parents’ conflicting preferences regarding child’s education); Prince v. Massachusetts, 321 U.S. 158, 168-69 (1944) (requiring all persons, including guardians, to comply with child labor laws).

Indeed, as noted in our previous article,

[t]he problem addressed by the plurality was not that Washington State had a statute allowing third-party visitation in particular circumstances under which it could be ordered for those in which it was particularly appropriate.

Ronald W. Nelson, Troxel v. Granville: The Supreme Court Wades into the Quagmire of Third-Party Visitation, 12 Divorce Litigation 101, 105 (June 2000) (emphasis added). Indeed, the Supreme Court specifically left open the possibility and probability that an appropriate statute granting third parties visitation could withstand constitutional scrutiny.

Although many scholars have opined that Troxel would do little to change third-party visitation law, the state courts have not had the same opinion. A number of cases have been decided since Troxel that strike down third-party visitation statutes where similar challenges had previously failed.

In Brice v. Brice, No. 1987 September Term, 1999 (Md. Ct. Spec. App. July 5, 2000), Maryland’s interim appellate court held that the application of Md. Code Ann., Fam. Law 9-102 unconstitutionally violated a mother’s due process rights.

In that case, Kayla Brice was born on January 8, 1997, the only child of Lisa and James Brice. James died in an automobile accident on October 2, 1997. Shortly after James’s death, Susan Brice, James’s mother, was on psychiatric leave from her employment and asked Lisa if she could provide daycare for Kayla, which Lisa declined. On December 9, 1997, the Brices filed a Complaint to Establish Grandparent Visitation Rights, alleging that Lisa had denied them visitation with Kayla since James’s death. Lisa’s Answer to the Complaint denied that she had refused the Brices visitation with Kayla and stated that she had continually encouraged reasonable and appropriate visitation by the Brices with their granddaughter.

The Maryland court found the facts in the case “strikingly similar” to those in Troxel. As in Troxel, the Brices did not allege, and no court has found, that Lisa was an unfit parent. In addition, as in Troxel, Lisa did not oppose or deny visitation and conceded that it was in Kayla’s best interest to have contact with the Brices. Instead, Lisa merely wished to set visitation on her own terms, without the interference of a judge under a “best interests of the child” standard. And on that point, the court agreed and held the Maryland third-party visitation statute unconstitutional as applied.

In G.P.C. v. Cabral, No. ED76060 (Mo. Ct. App. E.D. Aug. 8, 2000), the result was much different. In this case, the parents asserted that Missouri’s grandparent visitation statute, Mo. Rev. Stat. 452.402.2 (Cum. Supp. 1998), infringed upon their fundamental liberty interests as protected by the United States Constitution. (The parents also claimed that the trial court had erred in failing to find that the grandparents’ visitation would endanger the child physically and emotionally and that the trial court had abused its discretion by quashing their notices of deposition of expert witnesses.) Here, the court refused to find any constitutional infirmity.

In this case, the child was born on November 5, 1997. Although the grandparents had visits with the child during the first six months of her life, the parents then denied the grandparents contact with the child after the grandfather terminated the father’s employment.

The court first noted that the wording of the Washington statute was much different from that of the Missouri statute in that Missouri’s statute provides much greater protection of parents’ decisions than does the Washington statute. Under the Missouri statute, the denial must both be unreasonable and have continued for at least 90 days before grandparents may file an action seeking visitation. Under the Washington statute, any person can petition for visitation rights at any time. Consequently, Missouri’s statute does not create the potential of subjecting the parents’ every decision to review at the behest of endless third parties, as in Troxel.

While the Maryland court found its statute unconstitutional as applied and the Missouri court found no constitutional infirmity at all, in Illinois, the state’s highest court struck down the third-party visitation statute, 750 ILCS 5/607, altogether in Lulay v. Lulay, Nos. 87874, 87896 cons. (Ill. Oct. 26, 2000).

In this case, the husband and wife were divorced in 1996, and both were granted joint custody of their three minor children. On November 30, 1998, the father’s mother, Gail Lulay, filed a petition seeking visitation with her grandchildren.

The court noted that the Illinois statute, unlike the Washington statute, requires that the parents be not currently cohabitating on a permanent basis. But the Illinois court did not find this to be a saving grace:

The statute makes no exception for a situation where a parent who opposes the visitation is the child of the petitioning grandparent. Thus, the fact that Michael Lulay, Gail’s son and the father of the minor children, opposes the visitation does not alter Gail’s ability under section 607(b)(1) to petition for visitation. There is simply no language in the statute to support such an interpretation.

Because the statute fails to include such language, the effect of the statute is to impermissibly intrude upon a parent’s fundamental constitutional rights:

Because we have determined that the plain language of section 607(b)(1) permits a grandparent to file a petition for visitation where the grandparent’s own child objects to the visitation, we must now address whether section 607(b)(1), as so interpreted and thus applied to this case, where both parents oppose visitation, is constitutional. The answer is no. We hold that section 607(b)(1), as applied to this case, is an unconstitutional infringement on Michael and Kiley Lulay’s fundamental liberty interest in raising their children.

As more and more state courts are confronted with constitutional challenges to third-party visitation statutes, it is a sure bet that more will be held unconstitutional in light of Troxel, despite the academics’ view to the contrary.

Troxel v. Granville 530 U.S. 57 (2000)

In Best Interest of the Child, Child Custody, children legal status, Childrens Rights, Domestic Relations, Domestic Violence, due process rights, Family Rights, fathers rights, Intentional Infliction of Emotional Distress, motherlessness, mothers rights, Parental Alienation Syndrome, Parents rights, Troxel v. Granville on June 11, 2009 at 10:50 pm

Facts of the Case:

During Tommie Granville and Brad Troxel’s relationship, which ended in 1991, they had two daughters. Until Brad’s suicide in 1993, Brad’s parents Jenifer and Gary Troxel, the paternal grandparents, had regularly seen their granddaughters on weekends. However, after Brad’s suicide, Granville informed the Troxels that she wished to reduced their visitation time to one short visit per month. The Troxels filed suit for the right to visit their grandchildren, under section 26.10.160(3) of the Revised Code of Washington, which permits “any person” to petition for visitation rights “at any time” and authorizes state superior courts to grant such rights whenever visitation may serve a child’s best interest. Granville did not oppose the petition outright but did oppose the amount of visitation time sought by the Troxels. Subsequently, a Washington Superior Court ordered more visitation than Granville desired. On appeal, the Washington Court of Appeals reversed that decision, holding that non-parents lacked standing to sue under the statute. In affirming, the Washington Supreme Court ruled that the statute unconstitutionally interfered with parents’ right to rear their children.


Does the Washington statute, which allows any person to petition for a court-ordered right to see a child over a custodial parent’s objection if such visitation is found to be in the child’s best interest, unconstitutionally interfere with the fundamental right of parents to rear their children?


Yes. In a 6-3 decision delivered by Justice Sandra Day O’Connor, the Court held that the Washington Statute violated the right of parents, under the due process clause of the Constitution’s Fourteenth Amendment, to make decisions concerning the care, custody, and control of their children. Justice O’Connor wrote for the Court that “[t]he liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Justices John Paul Stevens, Antonin Scalia, and Anthony Kennedy dissented.


Decision: 6 votes for Granville, 3 vote(s) against

To read the complete opinion on FindLaw.com



Below are useful quotes from the opinions written by Supreme Court Justice Sandra Day O'Conner in Troxel v. Granville.

"there is a presumption that fit parents act in the best interests of their children."

"In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."

"It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."

"Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."

"The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child."

"In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance."

"As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made..Accordingly, we hold that §26.10.160(3), as applied in this case, is unconstitutional.." (emphasis added)

"The strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associations on the development of the child's social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choice about a child's social companions is not essentially different from the designation of the adults who will influence the child in school. Even a State's considered judgment about the preferable political and religious character of schoolteachers is not entitled to prevail over a parent's choice of private school." [Justice Souter in his concurring opinion.]

"It would be anomalous, then, to subject a parent to any individual judge's choice of a child's associates from out of the general population merely because the judge might think himself more enlightened than the child's parent." [Justice Souter in his concurring opinion.]

"parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them." [Justice Thomas in his concurring opinion.]

"Here, the State of Washington lacks even a legitimate governmental interest–to say nothing of a compelling one–in second-guessing a fit parent's decision regarding visitation with third parties." [Justice Thomas in his concurring opinion.]

Justice Kennedy in his dissenting opinion said, "It must be recognized, of course, that a domestic relations proceeding in and of itself can constitute state intervention that is so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated….If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney's fees alone might destroy her hopes and plans for the child's future."