One line not filled in properly, and NOT needed anyway, stops defendant from winning motion to dismiss a case.

Release used for a dog sledding accident asked for the minor child’s name which was not written in, so the release failed.

Sturm v. Weber (D. Colo. 2022)

State: Colorado: United States District Court, D. Colorado

Plaintiff: Sandra Sturm, and Timothy Sturm and Sandra Sturm, as parents and next friends of their minor child, Holly Sturm Plaintiff

Defendant: Josef Weber a/k/a Joseph Weber, Krabloonik, Incorporated

Plaintiff Claims: negligence, negligent misrepresentation, and, in the alternative, premises liability pursuant to the Colorado Premises Liability Act

Defendant Defenses: Release

Holding: split decision

Year: 2022

Summary

Dog sled guide fell off the dog sled, and the sled hit a tree injuring the plaintiff. The release failed initially to stop the litigation because on line on the release was not filled in correctly. The line was not needed for the release to be valid.

Facts

Krabloonik is a recreational dogsled operation in Snowmass Village, Colorado. Krabloonik employs “mushers” to steer the dogsleds during the rides it offers its customers. Krabloonik’s dogsleds are not equipped with track-braking systems; instead, mushers are trained to use resistance and counterbalance to steer and control the speed of Krabloonik’s dogsleds. Josef Weber operated Sandra and Holly Sturm’s dogsled on March 11, 2019.

According to his Musher Accident Report, Weber steered the dogsled into a rut, causing it to tip. When Weber attempted to level the dogsled, he fell off, leaving Sandra and Holly Sturm on a runaway sled. Without Weber to break and steer, the dogsled did not come to a stop until it collided with a tree. Plaintiffs claim that as a result of the collision, Holly Sturm suffered a broken leg that had to be surgically repaired and Sandra Sturm injured her elbow. Per the Amended Complaint, Holly Sturm also suffers from PTSD, mental stress, and anxiety as a result of the dogsledding incident.

Analysis: making sense of the law based on these facts.

The entire case resolves around one issue at this point. Was the release ineffective or void because a blank line on the release was not filled in or filled in with incorrect information.

Timothy Sturm, as Holly Sturm’s parent, is permitted to waive negligence claims on her behalf. See C.R.S. § 13-22-107(3) (“A parent of a child may, on behalf of the child, release or waive the child’s prospective claim for negligence.”) Therefore, the Court agrees with Defendants that the lack of Holly Sturm’s signature is irrelevant. Notwithstanding this fact, the Court cannot find as a matter of law that the Participation Agreement signed by Timothy Sturm is an effective release of his daughter’s claims. No name-let alone Holly’s-appears in the clearly marked space provided to identify the minor whose claims are being released, and neither party has explained to the Court who “Whitney” is. Therefore, the Court denies the Construed Motion with respect to Holly Sturm’s claims.

The issue is there was a line where the minor child’s name was to be written if the release was to stop a lawsuit by the minor child. That line was either blank or filled in with the name Whitney. Since the name of the injured child and daughter of the parent, signing the release was not on the line, the release is not valid to stop the claims of the minor child.

There is NO Need to have the name of the children on the release to begin with.

So, for whatever reason, a line to collect information or a desire to know the name on a release defeated the release. The Colorado statute is pretty clear C.R.S. § 13-22-107, all you have to do for a release to stop a claim by a minor, is to identify that the parent is signing away the child’s right to sue. No information has to be collected about the child or children.

A release was signed by the father which had the blank line. A release was also signed by the mother. The mother’s release did not indicate she was signing away her child’s right to sue. If the mothers release would have had language indicating she was signing away the child’s right to sue, the failure of the father’s release to be effective would not have mattered.

The mother also argued that the actions of the defendant were willful and wanton. This was an attempt for the mother to have the release she signed thrown out. Willful and wanton acts on the part of the defendant in Colorado, like all other states, bars the release from stopping claims for those acts.

Under Colorado law “”[w]illful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others.” Not specifically plead, the court was able to find language in the complaint that might lend itself to a claim for willful and wanton conduct that would not be covered by the release.

In all other issues, the court found the release was valid under Colorado law.

On a procedural note, the motion giving rise to this decision was filed early in the case, prior to discovery being completed. Consequently, the court felt that because the facts of the case had not been fully briefed, it had little choice but to rule in favor of the plaintiff’s because there were so many questions of fact that had not been brought forward yet.

Discovery was completed by the time this decision was issued. The court in its motion stated the defense could file another motion for summary judgment because more information was available and because of the timing of the first motion, the court had ruled on it as a preliminary motion not a motion for summary judgement.

So Now What?

A release is a contract. It is not a marketing information collection document. Do not collect any information other than what is required for the release. Signatures are required, and dates help identify the person. Address, phone and other contact info could be helpful. But don’t confuse your guests or the judge and make it something it is not.

Why there were two releases does not make any sense. One for a parent to sign with minor children and one without? Why not have one release, that correctly states that signing the release gives up the parents right to sue and the child’s right to sue under Colorado law. That would have easily stopped this lawsuit.

Poor releases give way to bad decisions in courtrooms.

Word Count: 1230

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Minnesota Appellate court upholds a release signed by a mother for a child’s injuries

Court also upheld the settlement agreement signed by the parents was valid to prohibit a claim by the minor after turning age 18

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

State:
Minnesota, Court of Appeals of Minnesota

Plaintiff: Carter Justice

Defendant: Marvel, LLC d/b/a Pump It Up Parties

Plaintiff Claims: negligently failed to cover the landing surface of the fall zone surrounding the inflatable

Defendant Defenses: Settlement and Release

Holding: For the Defendant

Year: 2021

Summary

The plaintiff was injured as a minor at an indoor recreation facility. The parents settled with the facility at the time of the injury. When the minor reached the age of majority in Minnesota he sued the facility. The Appellate court upheld the release signed by the parent to stop the minors claims and the settlement agreement.

Facts

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement….

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel.

Analysis: making sense of the law based on these facts.

This is the first case I’ve found in the recreation community where a minor sued upon reaching the age of majority for an injury the minor received years before. Injured minors are the lawsuits that seem to hang on forever. In some cases, you want the parents to present a claim so you can deal with it and not possible wait tent to fifteen years for the minor to turn 18 (or 19 or 21 dependent on the state See The age that minors become adults.) to sue on their own.

The defendant had two defenses. 1. The release that the mother had signed for her son at the time of the injury (pre-injury release). 2. The release the mother and father had signed at the time of the injury to settle the claim (post injury release).

The court looked at the basic issues surrounding a parents’ right to raise a child and whether this right includes the right to sign away a minor’s right to sue.

His first argument for voiding the release is also unique. After his mother signed the release, Minnesota passed a statute to regulate amusement parks like this and in the process lost the right to have a parent sign away a minor’s right to sue.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children. The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child.

(This has been adopted by all states, yet most State Supreme Courts do not believe that a parent has the right to sign away a child’s right to sue. They can provide medical care to the child that might kill them, but they can’t allow them to be injured.)

The court then reviewed all the ways that the state of Minnesota has by statute given parents the right to control the child upbringing. The court then made this statement supporting the right of a parent to sign away the right to sue.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

The next issue was a statute posted after the release was signed would void the release.

Three years after the plaintiff’s mother signed the release, Minnesota enacted Minn. Stat. 184B.20 Inflatable Amusement Equipment. The statute had a specific provision which voided releases signed by a parent for a minor.

Subd. 5. Insurance required; waiver of liability limited.

(b) A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.

The plaintiff argued that this statute should be used to void a release. However, a basic tenet of the law is “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” Even if the legislature intends for a law to retroactive it is very rarely upheld as valid. No business could continue if at any time in the future the law could change making the action or business illegal.

The plaintiff then argued the release was void because it was “overly broad and contrary to public policy.” Minnesota law follows the law in most other states on interpreting an overly broad release and public policy issues.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.”

Minnesota has a two prongs test to determine if a contract violates public policy.

The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).”

The plaintiff argued the release was a violation of public policy because his mother could not negotiate the release and as such he would not have been permitted to attend the birthday party if she had not signed the release. This argument might work for a real necessity, however in recreation cases it fails because the services can always be obtained elsewhere.

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.”

But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.”

The release was found to not violate public policy because:

…exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

The next argument was the scope of the release was too broad because the language tries to stop claims for “intentional, willful or wanton acts.” However, the release itself only referred to claims for negligence. However, this was not enough of a restriction under Minnesota law the court concluded.

Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

The court concluded the language of the release was overly broad when it did language in the release purported to release the defendant from more than simple negligence claims. The court then examined whether this issue was enough to void the release.

The court in a prior decision, repeated here found that although the language of the release may purport to cover greater than ordinary negligence, a release under Minnesota law could only release from ordinary negligence. So, no matter what the release said or was interpreted to say, it could not protect from simple negligence claims.

We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract. ” (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence.

Overly broad language, concerning the extent of the protection provided by the release, did not void the release.

Finally, the court reviewed the plaintiff’s argument that the post injury release signed by the plaintiff’s parents to settle their claims at the time of the injury was not valid. The plaintiff argued legal technical claims about the signing and validity of the release, which the court rejected.

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

So Now What?

One of the confusing points of this case is why did the amusement industry allow Minn. Stat. 184B.20 Inflatable Amusement Equipment to be passed. It provided no protection for the industry or operators, placed a mandatory insurance requirement and worst voided the use of a release for a minor in one of the few states where a minor can have a parent sign away their rights.

The two other issues, the signing of a release by a parent to stop the claims of a child, which is not moot for inflatable amusement devices, and the concept of a minor suing after his parents have settled a claim, after reaching the age of majority are rare and decided by the court in a manner that upholds the validity of a contract.

If settlement and post injury release signed by the parents had been thrown out, this would create a nightmare of litigation. No one would settle any claim of a minor until the minor reached the age of majority since any settlement might be void. No matter how badly a parent might want to pay medical bills or move on, no insurance company would offer a payment knowing they could be sued later.

What do you think? Leave a comment.

Who am I

Jim Moss

I’m an attorney specializing in the legal issues of the Outdoor Recreation Industry

I represent Manufactures, Outfitters, Guides, Reps, College & University’s, Camps, Youth Programs, Adventure Programs and Businesses

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James H. Moss

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Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

Justice v. Marvel, LLC, 965 N.W.2d 335 (Minn. App. 2021)

965 N.W.2d 335

Carter JUSTICE, Appellant,
v.
MARVEL, LLC d/b/a Pump It Up Parties, Respondent.

A20-1318

Court of Appeals of Minnesota.

Filed July 19, 2021
Granted in part October 19, 2021

Mahesha P. Subbaraman, Subbaraman, P.L.L.C., Minneapolis, Minnesota; and Patrick W. Michenfelder, Throndset Michenfelder, L.L.C., St. Michael, Minnesota (for appellant)

Joseph A. Nilan, Daniel A. Ellerbrock, Jacob T. Merkel, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, Minnesota (for respondent)

Matthew J. Barber, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota (for amicus curiae Minnesota Association for Justice)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Gaïtas, Judge.

OPINION

JOHNSON, Judge

When he was seven years old, Carter Justice attended a birthday party at a business that provided inflatable amusement equipment on which children were allowed to jump, climb, and play. Before entering the party, Justice’s mother signed a form agreement that included an exculpatory clause that released the business from any and all claims she and Justice might have based on his use of the inflatable amusement equipment. During the party, Justice fell off an inflatable obstacle course and hit his head on the floor, which caused him a head injury.

When Justice was 18 years old, he sued the business that hosted the birthday party. The district court denied Justice’s motion to amend the complaint to seek punitive damages. The district court later granted the defendant’s motion for summary judgment on the ground that the exculpatory clause signed by Justice’s mother is valid and enforceable. We conclude that the district court did not err by granting the motion for summary judgment. Therefore, we affirm.

FACTS

In February 2007, Justice attended a friend’s birthday party at an indoor amusement facility in the city of Plymouth. The facility, known as Pump It Up, was owned and operated by Marvel, L.L.C. Upon entering the facility, Justice’s mother, Michelle Sutton, was asked to sign, and did sign, a form agreement that stated as follows:

In consideration of being allowed to enter into the play area and/or participate in any party and/or program at Pump It Up of Plymouth, MN, the undersigned, on his or her own behalf, and/or on behalf of the participant(s) identified below, acknowledges, appreciates and agrees to the following conditions:

I represent that I am the parent or legal guardian of the Participant(s) named below …

….

I, for myself and the participant(s) nanied below, hereby releaseMARVEL, LLC, dba Pump It Up of Plymouthfrom and against any and all claims, injuries, liabilities or damages arising out of or related to our participation inthe use of the play area and/or inflatable equipment. (Emphasis added.)

During the party, while playing on an inflatable obstacle course, Justice fell approximately six feet and hit his head on the carpeted floor. He was taken to a hospital, where he received treatment.

In September 2007, Sutton and her husband, Steve Sutton, who is Justice’s step-father, entered into a written agreement with Marvel. The one-page agreement states that the Suttons had incurred unreimbursed medical expenses as a result of Justice’s head injury and that Marvel agreed to pay $1,500 of those expenses. The agreement provided that, if no new medical complications arose within six months, the Suttons would “execute a full and complete release and discharge of any and all claims” against Marvel. The Suttons did not thereafter execute such a release.

In June 2018, after Justice had turned 18 years old, he commenced this action against Marvel. He alleged that Marvel had “negligently failed to cover the landing surface of the fall zone surrounding the inflatable.” In March 2020, Justice moved to amend the complaint to add a request for punitive damages. In April 2020, the district court denied the motion to amend.

In May 2020, Marvel moved for summary judgment on the ground that Justice’s claim is barred by the exculpatory clause that his mother signed and, in addition, by the post-injury agreement that both of the Suttons signed. In August 2020, the district court granted the motion for summary judgment, reasoning that Justice’s claim is barred by the pre-injury exculpatory clause. Justice appeals.

ISSUE

Did the district court err by granting Marvel’s motion for summary judgment based on the exculpatory clause that Justice’s mother signed on his behalf when he was a minor child?

ANALYSIS

On appeal, Justice makes two arguments. First, he argues that the district court erred by granting Marvel’s motion for summary judgment. Second, he argues that the district court erred by denying his motion to amend the complaint to add a request for punitive damages. We begin by addressing his first argument, which is dispositive of the appeal.

A district court “shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. A genuine issue of material fact exists if a rational trier of fact, considering the record as a whole, could find for the nomnoving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). This court applies a de novo standard of review to the district court’s legal conclusions on summary judgment and views the evidence in the light most favorable to the party against whom summary judgment was granted. Commerce Bank v.
West Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015).

Justice argues that the district court erred on the ground that the exculpatory clause is invalid and unenforceable for five reasons. First, he argues that a pre-injury exculpatory clause releasing claims arising from the use of inflatable amusement equipment is void as a matter of law pursuant to a statute that was enacted after Justice’s mother signed Marvel’s exculpatory clause. Second, he argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult. Third, he argues that Marvel’s exculpatory clause is invalid and unenforceable because it is overly broad or arguably overbroad and in violation of public policy. Fourth, he argues that the post-injury agreement abrogated or modified the pre-injury exculpatory clause. And fifth, he argues that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. We will consider each of Justice’s arguments but in a different order.

A. Parental Authority

Justice argues that a parent does not have authority to agree to a pre-injury exculpatory clause on behalf of a minor child and that any such agreement is not binding on the child after he becomes an adult.1 Neither party has cited any Minnesota caselaw that is directly on point, and we are unaware of any such caselaw.2

The district court ruled in favor of Marvel on this issue by stating that “a parent may sign a waiver on behalf of a child under the laws of Minnesota.” In support of this statement, the district court quoted the following sentence in SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) : “A parent’s right to make decisions concerning the care, custody, and control of his or her children is a protected fundamental right.” Id. at 820 (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) ). The supreme court’s statement in SooHoo was made in the context of analyzing an argument that a custodial parent of a minor child has a constitutional right to substantive due process with respect to governmental interference with the parent-child relationship. Id. There was no issue in that case concerning a parent’s authority to enter into a contract on behalf of a minor child. See
id. at 819-26.

Nonetheless, the existence of a parent’s fundamental right “to make decisions concerning the care, custody, and control of his or her children,” id. at 820, implies that a parent has authority to act on behalf of a minor child when interacting with third parties. The United States Supreme Court has recognized as much: “Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.” Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2505, 61 L.Ed.2d 101 (1979). This principle is based on “a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.” Id. at 602, 99 S. Ct. at 2504. Furthermore, the law recognizes that “natural bonds of affection lead parents to act in the best interests of their children.” Id. (citing 1 William Blackstone, Commentaries of the Law of England 447 (Legal Classics Library 1983) (1769); 2 James Kent, Commentaries on American Law 190 (1827)). The Supreme Court stated in Parham that a parent’s authority to make health-care decisions on behalf of a minor child is limited only in atypical situations, such as if the parent has neglected or abused the child. Id. at 604, 99 S. Ct. at 2505.

Several Minnesota statutes recognize by implication that a parent generally is authorized to enter into agreements with third parties on behalf of a minor child. For example, in matters related to education, the legislature has recognized that parents have authority to make binding decisions on behalf of their minor children. See, e.g., Minn.Stat. §§ 120A.22, subds. 4-5, 8, 120A.3 8, 120B.07 (2020). Similarly, in the context of medical care, the legislature has provided for only a limited number of situations in which a parent’s consent to the medical treatment of a minor child is unnecessary, thereby implying that, in all other situations, a parent’s agreement or consent is necessary. For example, a minor child “may give effective consent to personal medical, dental, mental and other health services” only if the minor child is “living separate and apart from parents or legal guardian … and is managing personal financial affairs.” Minn. Stat. § 144.341 (2020). In addition, a health-care provider may give emergency treatment to a minor child without parental consent only if “the risk to the minor’s life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.” Minn. Stat. § 144.344 (2020). Each of these statutes presupposes that a parent generally has authority to make decisions on behalf of a minor child.

The legislature’s recognition of a parent’s authority to enter into an agreement on behalf of a minor child also is reflected in two recent statutes that are especially pertinent to this case. In 2010, the legislature passed, and the governor signed, a bill to regulate inflatable amusement equipment in various ways. 2010 Minn. Laws ch. 347, art. 3, § 2, at 46 (codified at Minn. Stat. § 184B.20 (2020) ). One provision of the statute (which is discussed further below in part B) broadly prohibits exculpatory clauses with the following language: “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b) (emphasis added). The italicized language in section 184B.20 would be unnecessary unless another person—such as a parent—has authority to sign a waiver of liability on behalf of a minor child. Also, in 2013, the legislature and the governor enacted a law to, among other things, prohibit exculpatory clauses that purport to release claims of greater-than-ordinary negligence in the context of consumer services, including recreational activities. 2013 Minn. Laws ch. 118 (codified at Minn. Stat. § 604.055 (2020) ). The statute applies to agreements entered into by “a minor or another who is authorized to sign or accept the agreement on behalf of the minor. ” Minn. Stat. § 184B.20, subd. 2 (emphasis added). Again, the italicized language impliedly recognizes that, in the absence of the statute, another person—such as a parent—may be authorized to sign agreements of that type, which is the same general type of agreement as the exculpatory clause in this case.

In light of these statutes, and in the absence of any law that either forbids parents from entering into contracts on behalf of their minor children or limits their ability to do so, it is clear that a parent generally has authority, on behalf of a minor child, to enter into an agreement that includes an exculpatory clause.

Justice contends that a parent should not be permitted to bind his or her minor child to an exculpatory clause after the child becomes an adult because a minor child who independently enters into a contract may avoid the contract after reaching adulthood. See
Kelly v. Furlong, 194 Minn. 465, 261 N.W. 460, 466 (1935) ; Goodnow v. Empire Lumber Co., 31 Minn. 468, 18 N.W. 283, 284-85 (1884) ; Dixon v. Merritt, 21 Minn. 196, 200 (1875). This rule of law exists “for the protection of minors, and so that they shall not be prejudiced by acts done or obligations incurred at a time when they are not capable of determining what is for their interest to do.” Goodnow, 18 N.W. at 284. For that reason, “the law gives them an opportunity, after they have become capable of judging for themselves, to determine whether such acts or obligations are beneficial or prejudicial to them, and whether they will abide by or avoid them.” Id. at 284-85. But that rationale simply does not apply if an adult parent signed an exculpatory clause on behalf of a minor child. An adult parent is presumed to be competent to make decisions on behalf of a minor child and to act in the child’s best interest. See
Parham, 442 U.S. at 602, 99 S. Ct. at 2504. Such a parent may balance the relevant considerations and either elect to sign an exculpatory clause on behalf of a minor child and thereby obtain the benefits of doing so or elect to not sign it and thereby forego any such benefits.

Justice also contends that a parent should not be permitted to sign an exculpatory clause on behalf of a minor child before any injury occurs because a parent is not permitted to settle a pending lawsuit on behalf of a minor child after a child has been injured, unless a district court approves. Justice refers to a statute that authorizes a parent to “maintain an action for the injury of a minor son or daughter” and also provides, “No settlement or compromise of the action is valid unless it is approved by a judge of the court in which the action is pending.” Minn. Stat. § 540.08 (2020). Justice’s contention fails to recognize the differences between the two situations. Section 540.08 guards against the risk that a parent might enter into an improvident settlement that is not in the minor child’s best interests or the risk that a parent might be motivated by an intent to use settlement proceeds for improper purposes. Such risks are especially ripe after a child has been injured and a civil action has been commenced and settled. But such risks are not present and are unlikely to arise in the more common situation in which a parent is presented with an exculpatory clause and no injury has yet occurred. In that situation, there is no immediate prospect of a settlement that is contrary to a minor child’s best interests.

Justice contends further that this court held in O’Brien Entertainment Agency, Inc. v. Wolfgramm, 407 N.W.2d 463 (Minn. App. 1987), review denied (Minn. Aug. 12, 1987), that a parent’s agreement on behalf of his minor children was unenforceable. We disagree with Justice’s interpretation of our opinion in O’Brien
. The opinion states that a father of six children signed a contract, but the opinion does not clearly state that the father signed the contract on behalf of his children. Id. at 465-66. Absent from the court’s reasoning is any statement that the father purported to enter into the contract on behalf of his children. See
id. at 466-67. We concluded that the statute of frauds barred the breach-of-contract claim against the children because none of the children signed the contract. Id. at 466. Thus, our opinion did not address the question whether a parent may enter into a contract on behalf of a minor child.

In sum, various provisions of Minnesota law recognize that a parent may enter into an agreement on behalf of a minor child. Recent statutory enactments clearly indicate that the legislature has assumed that a parent is authorized to sign an exculpatory clause—including an exculpatory clause concerning the use of inflatable amusement equipment—on behalf of a minor child. Justice has not cited any Minnesota authority for the proposition that a parent may not enter into an agreement on behalf of a minor child.

Thus, the district court did not err by reasoning that Justice’s mother was authorized to sign Marvel’s exculpatory clause on Justice’s behalf.

B. Section 184B.20

Justice also argues that section 184B.20 of the Minnesota Statutes, which was enacted in 2010, voids the exculpatory clause that his mother signed in 2007 because the statute voids all waivers of claims based on injuries caused by the use of inflatable amusement equipment.

As noted above, section 184B.20 provides, “A waiver of liability signed by or on behalf of a minor for injuries arising out of the negligence of the owner or the owner’s employee or designee is void.” Minn. Stat. § 184B.20, subd. 5(b). The session law that led to the codification of this statute states that the law “is effective August 1, 2010.” 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. The district court rejected Justice’s argument that section 184B.20 voids Marvel’s exculpatory clause on the grounds that Justice’s mother signed the exculpatory clause before the statute’s effective date and that the legislature did not intend for the statute to apply retroactively.

” ‘No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.’ ” In re Individual 35W Bridge Litigation, 806 N.W.2d 811, 819 (Minn. 2011) (A09-1776) (hereinafter 35W Bridge (A09-1776)
) (quoting Minn. Stat. § 645.21 (2010) ). One way in which the legislature may indicate its intent for a law to operate retroactively is to use the term “retroactive.” Duluth Firemen’s Relief Ass’n v. City of Duluth, 361 N.W.2d 381, 385 (Minn. 1985).

Justice does not argue that the legislature intended the statute to apply retroactively. Instead, he contends that the statute’s application in this case would be a prospective application, not a retroactive application. But the supreme court has stated, “A statute operates retroactively if it affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute.” 35W Bridge (A09-1776), 806 N.W.2d at 819-20 (quotation omitted). If section 184B.20 were applied to this case, it would affect the parties’ respective rights and obligations concerning events—the signing of Marvel’s exculpatory clause and Justice’s head injury—that occurred more than three years before the effective date of the statute. Such an application would result in a retroactive application of the statute because it would affect rights and obligations that were pre-existing when the statute became effective. See id.

Justice attempts to avoid a retroactive characterization by relying on Tapia v. Leslie, 950 N.W.2d 59 (Minn. 2020), in which the supreme court concluded that a 2014 statutory amendment governed a 2017 application for a permit to carry a pistol. Id. at 63. In Tapia, the relevant statute was amended three years before the application for a permit, which was the operative event. Id. In this case, the statute was enacted three years after Justice’s mother agreed to the exculpatory agreement. Thus, Tapia is distinguishable from this case.

Justice also contends that the application of section 184B.20 in this case would not impair any vested rights belonging to Marvel. The existence of vested rights may, in certain circumstances, defeat the intended retroactive application of a statute if retroactive application would be unconstitutional. See
In re Individual 35W Bridge Litigation, 806 N.W.2d 820, 829-33 (Minn. 2011) (A10-0087); Peterson v. City of Minneapolis, 285 Minn. 282, 173 N.W.2d 353, 357-58 (1969) ; Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 363, 366-67 (1957) ; Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 84 N.W.2d 282, 287 (1957) ; K.E. v. Hoffman, 452 N.W.2d 509, 512-13 (Minn. App. 1990), review denied (Minn. May 7, 1990). This understanding of vested rights is apparent in Larson v. Independent School District No. 314, 305 Minn. 358, 233 N.W.2d 744 (1975), the case on which Justice primarily relies in his principal brief. In Larson, the supreme court concluded that the retroactive application of a rule of civil procedure, as intended, did not “deprive[ ] defendants of vested rights of property and privacy in violation of the due process clause of the Fourteenth Amendment to the Federal Constitution.Id. at 748 (emphasis added). Outside the context of land use and zoning, the vested-rights doctrine simply does not affect the determination of whether a statute is intended to have retroactive application. Cf . Interstate Power Co. v. Nobles County Bd. of Commissioners, 617 N.W.2d 566, 575-78 (Minn. 2000) (citing cases). Because we have determined that the legislature did not intend for section 184B.20 to apply retroactively, the vested-rights doctrine is not relevant.

Thus, the district court did not err by reasoning that section 184B.20 does not apply retroactively to Justice’s mother’s agreement to Marvel’s exculpatory clause.

C. Marvel’s Exculpatory Clause

Justice also argues that Marvel’s exculpatory clause is unenforceable on the grounds that it is overly broad and contrary to public policy.

“A clause exonerating a party from liability will be strictly construed against the benefited party.” Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). “If the clause is either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts, it will not be enforced.” Id. In addition, an exculpatory clause is unenforceable if it “contravenes public policy.” Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783, 789 (Minn. 2005) (citing Schlobohm, 326 N.W.2d at 923 ).

1. Public Policy

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it is contrary to public policy.

The supreme court has prescribed a “two-prong test” to determine whether an exculpatory clause is contrary to public policy. Schlobohm, 326 N.W.2d at 923. The test focuses on two factors: “(1) whether there was a disparity of bargaining power between the parties (in terms of a compulsion to sign a contract containing an unacceptable provision and the lack of ability to negotiate elimination of the unacceptable provision)” and “(2) the types of services being offered or provided (taking into consideration whether it is a public or essential service).” Id. In this case, the district court determined that Marvel’ s exculpatory clause is not contrary to public policy because there was no bargaining-power disparity and because Marvel did not provide “an essential or public service.”

Justice contends that there was a disparity in bargaining power because there was no opportunity for his mother to negotiate the terms of the exculpatory clause and because he would not have been permitted to attend the birthday party if his mother had not signed the form agreement. Justice’s contention is not legally viable. “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” Id. at 924. More is required. The agreement must relate to a “necessary service,” and there also “must be a showing … that the services could not be obtained elsewhere.” Id. at 924-25. Consequently, there is no disparity in bargaining power, for purposes of the Schlobohm public-policy analysis, if a consumer has the choice to simply forego the activity. See
Beehner v. Cragun Corp., 636 N.W.2d 821, 827-28 (Minn. App. 2001), review denied (Minn. Feb. 28, 2002); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 730 (Minn. App. 1986), review denied (Minn. Oct. 29, 1986). There is no evidence in the summary-judgment record that the services Marvel provided were unavailable else where, and we may presume that Justice was not compelled to participate in the birthday party because the provision of inflatable amusement equipment is not a necessary service. Thus, as in Schlobohm and Malecha, there was no disparity in bargaining power, as required for a conclusion that an exculpatory clause is contrary to public policy.

Justice also contends that the type of services offered by Marvel causes its exculpatory clause to be incompatible with public policy. He likens Marvel’s services to the “[t]ypes of services thought to be subject to public regulation,” such as “common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Schlobohm, 326 N.W.2d at 925. But the supreme court has recognized that “contracts relating to recreational activities do not fall within any of the categories where the public interest is involved,” on the ground that they are not “services of great importance to the public, which were a practical necessity for some members of the public.” Id. at 926. Subsequent opinions have relied on this principle in concluding that the use of an exculpatory clause in connection with a recreational activity is not contrary to public policy. See
Anderson v. McOskar Enterprises, Inc., 712 N.W.2d 796, 802 (Minn. App. 2006) (health club); Beehner, 636 N.W.2d at 829 (horseback riding); Malecha, 392 N.W.2d at 730 (skydiving). A business that provides inflatable amusement equipment is well within the category of recreational activities for which exculpatory clauses are not prohibited.

Justice counters that providing inflatable amusement equipment is the type of service that is “generally thought suitable for public regulation,” Schlobohm, 326 N.W.2d at 925, because it now is, in fact, regulated by statute, as of 2010. See Minn. Stat. § 184B.20; 2010 Minn. Laws ch. 347, art. 3, § 2, at 46. Furthermore, he contends that Marvel’s exculpatory clause is contrary to public policy because the legislature has declared that all exculpatory clauses concerning inflatable amusement equipment are void. To rely on section 184B.20 for purposes of the Schlobohm public-policy analysis would be, in effect, to apply the statute retroactively. We have already concluded that section 184B.20 does not apply retroactively to an exculpatory clause that was signed before the statute’s effective date. See supra part B. Accordingly, Justice cannot rely on section 184B.20 to establish that Marvel’s exculpatory clause is contrary to public policy in the sense described in Schlobohm.

Thus, the district court did not err by reasoning that Marvel’s exculpatory clause does not violate public policy.

2. Scope of Release

Justice contends that Marvel’s exculpatory clause is unenforceable on the ground that it purports to release Marvel from claims arising from Marvel’s intentional, willful or wanton acts. Justice alternatively contends that Marvel’s exculpatory clause is unenforceable on the ground that it is ambiguous with respect to whether it releases Marvel from claims arising from Marvel’s intentional, willful or wanton acts.

Exculpatory clauses are permissible but not favored and, thus, are “strictly construed against the benefited party.” Schlobohm, 326 N.W.2d at 923. An exculpatory clause is unenforceable if it is “either ambiguous in scope or purports to release the benefited party from liability for intentional, willful or wanton acts.” Id.

By signing Marvel’s exculpatory clause, Justice’s mother agreed, on her own behalf and on behalf of Justice, to “release … MARVEL, LLC, … from and against any and all claims, injuries, liabilities or damages.” (Emphasis added.) The plain language of this clause purports to release claims of both ordinary negligence and greater-than-ordinary negligence, including claims based on intentional, willful or wanton acts. Marvel contends that its exculpatory clause is similar to exculpatory clauses in other cases in which the appellate courts concluded that the clauses were limited to ordinary negligence. In each of those cases, however, the exculpatory clause expressly referred to claims of “negligence,” which provided the appellate courts with a basis for concluding that the clauses were limited to claims of ordinary negligence. See
Schlobohm, 326 N.W.2d at 922-23 ; Anderson, 712 N.W.2d at 799, 801 ; Malecha, 392 N.W.2d at 728-30 ; see also Beehner, 636 N.W.2d at 825-27. But Marvel’s exculpatory clause does not make any reference to claims of “ordinary negligence” or simply “negligence.” Rather, it expansively refers to “any and all claims,” which means that it purports to release Marvel from claims arising from its intentional, willful or wanton acts. Thus, Marvel’s exculpatory clause is overly broad.

3. Effect of Overbreadth

Having determined that Marvel’s exculpatory clause is overly broad, we must consider the consequences of that determination. The question arises whether Marvel’s exculpatory clause is completely unenforceable, even with respect to claims of ordinary negligence, or unenforceable only to the extent that Justice asserts a claim of greater-than-ordinary negligence. Justice contends that an overly broad exculpatory clause is “invalid,” without discussing more specifically the nature or extent of its invalidity. Marvel argues only that the exculpatory clause is valid, without making any alternative argument about whether or how this court should apply the exculpatory clause if it is invalid.

This court considered this precise issue in Anderson, in which we characterized a health club’s exculpatory clause as “arguably ambiguous.” 712 N.W.2d at 801. The plaintiff had asserted only a claim of ordinary negligence. Id. We stated that it “would subvert the parties’ manifested intent” to conclude that the plaintiffs ordinary-negligence claim was not barred by a release that clearly released such a claim. Id. We reasoned that “any term in a contract which attempts to exempt a party from liability for gross negligence or wanton conduct is unenforceable, not the entire contract.Id. (emphasis added) (quotation and alteration omitted). In light of Anderson, Marvel’s exculpatory clause is enforceable to the extent that Justice asserts a claim of ordinary negligence, but it is unenforceable to the extent that Justice asserts a claim of greater-than-ordinary negligence. See id. ; see also
ADT Security Services, Inc. v. Swenson, 276 F.R.D. 278, 300-01 (D. Minn. 2011) (concluding that overly broad nature of exculpatory clause “limit[s] its applicability to claims which do not implicate willful and wanton negligence or intentional behavior”).

Thus, the district court did not err by enforcing Marvel’s exculpatory clause and concluding that it released Justice’s claim of ordinary negligence, even though the clause is overly broad.

D. Greater-than-Ordinary Negligence

Justice argues that he has introduced evidence that is sufficient to create a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. In response, Marvel argues that Justice did not preserve this argument because he did not present it to the district court.

Marvel is correct. Justice did not argue to the district court that Marvel’s summary-judgment motion should be denied on the ground that there is a genuine issue of material fact as to whether Marvel engaged in greater-than-ordinary negligence. The district court expressly stated in its order that “Plaintiffs claims are based solely on negligence, and there is no claim by Plaintiff nor evidence in the record to suggest that Defendant or its employees acted willfully, intentionally or wantonly.” Justice is making a claim of greater-than-ordinary negligence for the first time on appeal. In that situation, an appellate court generally will not consider an argument that was forfeited because it was not presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) ; Doe 175 v. Columbia Heights Sch. Dist., 842 N.W.2d 38, 42-43 (Minn. App. 2014).

Justice contends that he adequately preserved a claim of greater-than-ordinary negligence by pleading his claim broadly. He also contends that he raised an issue of greater-than-ordinary negligence in his motion to amend the complaint to add a request for punitive damages. Regardless of how Justice pleaded his claim or claims in his complaint, and regardless of the arguments he made with respect to a different motion, he had an obligation to oppose Marvel’s summary-judgment motion by submitting and citing admissible evidence in support of all of his claims and by presenting all of his legal arguments for denying the motion. See
DLH, Inc. v. Russ, 566 N.W.2d 60, 69-71 (Minn. 1997) ; Hunt v. IBM Mid Am. Emps. Fed. Credit Union, 384 N.W.2d 853, 855-56 (Minn. 1986) ; Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 44 (Minn. App. 2010) ; Fontaine v. Steen, 759 N.W.2d 672, 676 (Minn. App. 2009). But Justice did not mention a claim of. greater-than-ordinary negligence in his memorandum of law in opposition to Marvel’s motion.

Thus, we will not consider Justice’s argument that the district court should have denied Marvel’s summary-judgment motion with respect to a claim of greater-than-ordinary negligence. See
Thiele, 425 N.W.2d at 582 ; Doe 175 , 842 N.W.2d at 42-43.

E. Post-Injury Agreement

Justice argues that the district court erred by reasoning that the agreement signed by his mother and step-father in September 2007, after Justice was injured, does not abrogate or modify the exculpatory clause.

The September 2007 agreement provides, in relevant part,

As of the date of this Agreement, Carter Justice seems to have recovered completely from the Accident and has been removed from any restrictions by his attending physician(s). Parents agree that if there are no new medical complications arising as a result of the Accident within six months following the date of this Agreement they will execute a full and complete release and discharge of any and all claims against [Marvel] stemming from the Accident.

Justice argued to the district court that this post-injury agreement abrogated the exculpatory clause on the ground that the parties “agreed to substitute a new contract” for the exculpatory clause. The district court rejected the argument, reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause because it does not refer to the exculpatory clause and because it states that it is not “an admission of any fault or legal liability.”

On appeal, Justice contends that the post-injury agreement abrogates the exculpatory clause because the post-injury agreement is specifically related to Justice’s head injury, Justice’s mother and step-father agreed to release claims arising from Justice’s head injury only if certain conditions were present, and the conditions stated in the post-injury agreement were not present. In response, Marvel contends that the post-injury agreement did not modify the exculpatory clause because the agreement does not refer to the waiver and because it was entered into by Justice’s mother and step-father on their own behalf but not on behalf of Justice.

Justice’s argument requires us to interpret the post-injury agreement, which is a contract. “The primary goal of contract interpretation is to determine and enforce the intent of the parties.” Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). “Where there is a written instrument, the intent of the parties is determined from the plain language of the instrument itself.” Id. If a contract is clear and unambiguous, courts should apply the plain language of the contract and “not rewrite, modify, or limit its effect by a strained construction.” Id. This court applies a de novo standard of review to a district court’s interpretation of a contract. Id.

The district court correctly interpreted the post-injury agreement. It is an agreement between Marvel and Justice’s mother and step-father but not between Marvel and Justice, the two parties to this case. It does not refer to the pre-injury exculpatory clause in any way. It provided for the possibility of “a full and complete release and discharge of any and all claims against [Marvel] stemming from” Justice’s injury. If such a release had been signed, it would have provided Marvel with an additional defense to Justice’s claim. But Justice’s mother and step-father never signed the release that was contemplated by the post-injury agreement. The absence of a second release does not in any way alter the release contained in the exculpatory clause that was signed by Justice’s mother on the day of Justice’s injury.

Thus, the district court did not err by reasoning that the post-injury agreement does not abrogate or modify the exculpatory clause.

DECISION

The district court did not err by granting Marvel’s motion for summary judgment on the ground that Justice’s sole claim of ordinary negligence is barred by the exculpatory clause that his mother signed on his behalf. In light of that conclusion, Justice’s argument that the district court erred by denying his motion to amend the complaint to add a request for punitive damages is moot.

Affirmed.

——–

Notes:

1 Marvel contends that Justice did not preserve this argument by presenting it to the district court. Marvel’s contention is colorable because Justice presented the issue to the district court in a somewhat indirect manner. But the district court determined that the issue was presented, stating that it “was addressed in the [parties’] memoranda and is therefore worth clarifying.” Accordingly, the argument is sufficiently preserved for appellate review.

2 The Minnesota Association for Justice has filed an amicus brief supporting Justice’s position. The association notes that a person may void a contract that he or she entered into as a minor, contends that compensation of children who are tort victims is an important objective, and asserts that courts in 17 other states do not enforce parental waivers of minors’ claims. Our research indicates that courts in other states have resolved the issue in various ways. Courts in some states have enforced exculpatory clauses signed by a parent on behalf of a minor child. See, e.g.,
Sharon v. City of Newton, 437 Mass. 99, 769 N.E.2d 738, 745-47 (2002) ; BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714, 80 A.3d 345, 353-55 (2013) ; Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 696 N.E.2d 201, 206-07 (1998). Courts in other states have not enforced such exculpatory clauses. See, e.g., Woodman ex rel. Woodman v. Kera, LLC, 486 Mich. 228, 785 N.W.2d 1, 8 (2010) ; Hawkins ex rel. Hawkins v. Peart, 37 P.3d 1062, 1066 (Utah 2001) ; Scott v. Pacific W. Mountain Resort, 119 Wash.2d 484, 834 P.2d 6, 10-12 (1992).

——–


Kentucky determines that a parent cannot sign away a child’s right to sue.

Courts are allowed to pick and choose the case law they relied upon and to distinguish or ignore the case law the court does not like. In this case, the Kentucky Supreme Court ignored law it did not like or simply found a way around the case law it did not want to agree with.

Citation: E.M. v. House of Boom Ky., LLC (In re Miller), 2019 Ky. LEXIS 211, 2019 WL 2462697

State: Kentucky, Supreme Court of Kentucky

Plaintiff: Kathy Miller, as Next Friend of Her Minor Child, E.M.

Defendant: House of Boom Kentucky, LLC

Plaintiff Claims: negligence

Defendant Defenses: release

Holding: for the plaintiff

Year: 2019

Summary

Kentucky Supreme Court rules that a parent cannot sign away a minor’s right to sue.

Facts

House of Boom, LLC (“House of Boom”) is a for-profit trampoline park located in Louisville, Kentucky. The park is a collection of trampoline and acrobatic stunt attractions. On August 6, 2015, Kathy Miller purchased tickets for her 11-year-old daughter, E.M., and her daughter’s friends to go play at House of Boom. Before purchasing the tickets, House of Boom required the purchaser to check a box indicating that the purchaser had read the waiver of liability.

Once Miller checked the box, E.M. participated in activities at House of Boom. She was injured when another girl jumped off a three-foot ledge and landed on E.M’s ankle, causing it to break. Miller, as next friend of her daughter, sued House of Boom for the injury. House of Boom, relying on Miller’s legal power to waive the rights of her daughter via the release, moved for summary judgment. The Western District of Kentucky concluded that House of Boom’s motion for summary judgment involved a novel issue of state law and requested Certification from this Court which we granted. Both parties have briefed the issue and the matter is now ripe for Certification.

So, the plaintiff sued in Federal District Court. Because the issue of whether or not a parent could sign away a minor’s right to sue had not been reviewed by the Kentucky Supreme Court, the federal district court asked the Kentucky Supreme Court to review the case. The Kentucky Supreme court did with this decision.

Analysis: making sense of the law based on these facts.

The sole question before the court was whether a parent could sign away a minor’s right to sue.

The question before this Court is whether a parent has the authority to sign a pre-injury exculpatory agreement on behalf of her child, thus terminating the child’s potential right to compensation for an injury occurring while participating in activities sponsored by a for-profit company.

The court in reviewing the case law from other states on this issue decided the cases had been determined in one of four categories.

House of Boom categorizes these decisions in as those that enforced the waiver and those that did not, but the decisions of those jurisdictions more accurately fall into four distinct categories: (1) jurisdictions that have enforced a waiver between a parent and a for-profit entity; (2) jurisdictions that have enforced waivers between a parent and a non-profit entity; (3) jurisdictions that have declared a waiver between a parent and a for-profit entity unenforceable; and (4) jurisdictions that have declared a waiver between a parent and a non-profit entity unenforceable.

By making this distinction in the cases to start, the court immediately eliminated much of the case law supporting the defendants. In most states, a non-profit has no different legal duty to patrons then a for profit, and none that I can find in Kentucky. However, by using these categories the court was able to place this case in the category with only one other decision that could support the defendant.

House of Boom is a for-profit trampoline park, and eleven out of twelve jurisdictions that have analyzed similar waivers between parents and for-profit entities have adhered to the common law and held such waivers to be unenforceable.

The court then justified it classifications and reasoning by stating a commercial entity had more ways to deal with the cost of the liability than a non-profit.

A commercial entity has the ability to purchase insurance and spread the cost between its customers. It also has the ability to train its employees and inspect the business for unsafe conditions.

However, none of the factors listed above are any different from the situations or requirements to do business for a non-profit operation.

The court then fell back on a legal fallacy that plaintiffs have been arguing for years.

A child has no similar ability to protect himself from the negligence of others within the confines of a commercial establishment. “If pre-injury releases were permitted for commercial establishments, the incentive to take reasonable precautions to protect the safety of minor children would be removed.

However, no cases I’ve read have ever stated that the injury was caused because the defendant did not have to deal with liability issues. Any breach of a duty of care that has occurred were not across the board, just spotty.

The court concluded:

Under the common law of this Commonwealth, absent special circumstances, a parent has no authority to enter into contracts on a child’s behalf.

So Now What?

The plaintiff’s mother purchased tickets for several kids. So, for the majority of the children, the release was void to begin with. One release was signed for multiple possible plaintiffs by someone who did not have the legal authority to sign on their behalf anyway.

The category’s trick was interesting. By restricting the cases it reviewed to artificial categories the Kentucky Supreme Court eliminated several cases that supported the defendant’s position. On top of that, it also then ignored cases after the initial cases it reviewed that supported the use of a release signed by a parent for a child in for-profit or commercial situations.

The Ohio Supreme Court found that a parent could sign away a minor’s right to sue in a non-profit case: Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998). Subsequent decisions in Ohio by the appellate courts have also upheld a release signed by the parent of the injured child: Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.

By placing blinders on the case law it was looking at, it is a lot easier to ignore decisions you do not want to deal with.

It is disturbing when a court, weaves its way through case law to reach a conclusion it could have easily reached without circular path. Either the court works its way around lots of decisions or the court realized this decision was going against the general flow of law in the US on this issue and wanted to justify its decision.

Statutes and prior law in Kentucky say a parent’s rights are not absolute in controlling their child and thus a parent cannot sign away their minor child’s right to sue.

What do you think? Leave a comment.

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Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.

Minor injured in a sky-diving accident is allowed to sue because the release, she and her parents signed are void under Oklahoma law. Parents are not allowed to sue for their claims because of the release.

Wethington v. Swainson, 2015 U.S. Dist. LEXIS 169145

State: Oklahoma, United States District Court for the Western District of Oklahoma

Plaintiff: Holly Wethington and Makenzie Wethington

Defendant: Robert Swainson, d/b/a/ Pegasus Airsport

Plaintiff Claims: (1) provided inadequate training to [*2]  Makenzie in preparation for the parachute jump, (2) selected a person to provide radio assistance who had no prior experience, (3) provided old equipment that malfunctioned during Makenzie’s jump, and (4) permitted Makenzie to use a parachute she was ill-prepared to use and which was inappropriate for her skill level

Defendant Defenses: Release

Holding: for the defendant for the claims of the parents, for the plaintiff for her claims

Year: 2015

The minor plaintiff was sixteen years old when she wanted to check another item off her bucket list. She went to the defendant’s sky-diving business along with her parents.

First, the minor plaintiff completed a Registration Form and Medical Statement which included a notice that sky diving was dangerous. The minor plaintiff also signed a release. Her parents also signed the release. The release required the minor plaintiff to write out a statement that she knew she was signing a release and understood the risks. She wrote this out and signed it. The bottom of the release also had a ratification paragraph which the Parent/Guardian was required to sign that stated they understood the risks and released the defendants. Both parents signed this.

In total, a warning in one document, a release signed by all three parents, an additional clause signed by the paragraphs and a written paragraph written and signed by the minor plaintiff is normally far in excess of what a party signs before engaging in recreational activities.

The minor plaintiff then received four houses of training. On her first jump, her parachute malfunctioned, and she hit the ground sustaining injuries.

The defendants filed for a motion for summary judgment based on the release.

Analysis: making sense of the law based on these facts.

The court started by looking at the issues surrounding release law in Oklahoma. “An exculpatory clause releases in advance the second party for any harm the second party might cause the first party after the contract is entered.” Releases are enforceable in Oklahoma but are “distasteful.”

At the same time, releases in Oklahoma should not be voided because of public policy grounds. “Notwithstanding this admonition, courts should void contract clauses on public-policy grounds “rarely, with great caution and in cases that are free from doubt.” Public policy grounds are the normal way releases signed by minors are voided.

Releases in Oklahoma have to meet three criteria to be valid.

(1) Their language must evidence a clear and unambiguous intent to exonerate the would-be defendant from liability for the sought-to-be-recovered damages;

(2) At the time the contract was executed, there must have been no vast difference in bargaining power between parties; and

(3) Enforcement of the clause would not (a) be injurious to public health, public morals or confidence in administration of the law or (b) so undermine the security of individual rights vis-a-vis personal safety or private property as to violate public policy.

The court also stated that under Oklahoma law releases cannot work to prevent “liability for intentional, willful or fraudulent acts or gross, wanton negligence.”

After reviewing the release the court found the release was valid.

First, the Release states in clear and unequivocal terms the intention of the parties to excuse Defendant from liability caused by Defendant’s negligence, equipment failure, or inadequate instruction. Plaintiffs signed and initialed several clauses containing the headings, RELEASE FROM LIABILITY, COVENANT NOT TO SUE, and ACKNOWLEDGMENT OF RISK. Mrs. Wethington and her husband signed a ratification stating they had read the Release, understood its terms, and agreed to be bound thereby.

The court then looked at whether there was inequality in the bargaining power of the plaintiff and found none.

Second, there is no evidence of unequal bargaining power. “Oklahoma courts consider two factors in determining parties’ relative bargaining power: ‘(1) the importance of the subject matter to the physical or economic wellbeing of the party agreeing to the release, and (2) the amount of free choice that party could have exercised when seeking alternate services.'” There is no evidence that skydiving was necessary or important to Plaintiffs’ wellbeing. In fact, when asked why she wanted to skydive, Makenzie answered, “It’s on my bucket list.”

The court found the plaintiffs were not bound to sky dive with the defendant; she was free to sky dive with anyone. Therefore, the plaintiff was not under any pressure or requirement to sky dive with the defendant.

The court then looked at Oklahoma law to see if parents could sign away a minor’s right to sue.

It is also true that as a matter of public policy, courts have protected minors from improvident and imprudent contractual commitments by declaring the contract of a minor is voidable at the election of the minor after she attains majority. Under Oklahoma law, a minor’s right to rescind a contract is unaffected by the approval or consent of a parent.

The court also found that for a claim to be approved for a minor for an injury resulting in a settlement, the court had to approve the settlement.

However, the court found this case was complicated by the fact the minor plaintiff’s parents had also signed the release. “In this case, however, Makenzie’s parents also knowingly signed the Release on her behalf, ratifying and affirming its exculpatory content, and agreeing to be bound thereby.”

The Oklahoma Supreme Court did not rule on the issue. Federal courts hearing cases based on the diversity of the parties dealing with state law issues must apply the law of the state where the lawsuit is based or the law that applies.

…federal court sitting in diversity must apply state law as propounded by the forum’s highest court. Absent controlling precedent, the federal court must attempt to predict how the state’s highest court would resolve the issue.

The next issue is disaffirmance of the contract. A minor must disaffirm a contract after reaching the age of majority or the contract is valid. The plaintiffs argued, and the court agreed that the filing of the lawsuit disaffirmed the release. “Plaintiffs correctly argue that commencement of this lawsuit constitutes a disaffirmance of the Release, and the contract is void ab initio.”

For more on this see Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18. However, this decision was later overturned in Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.

The court also examined the issue that the parents signed the release and found it had no bearing on the case. However, the release did stop claims by the parents.

The ratification signed by Makenzie’s parents is, likewise, unenforceable as a bar to Makenzie’s claims. The Release, however, is otherwise conspicuous and clear so as to bar the parents’ cause of action based upon injury to their child.

When a minor is injured, the minor can sue and the parents can sue. Dependent upon the state, the claims of the parents may include those of the minor or may be solely based on the parents’ loss.

The court then ruled that the minor claim was valid and not barred by the release. The parent’s claims, specifically the named plaintiff, the minor plaintiff’s mother, were barred by the release.

Defendant’s motion is granted as to Plaintiff Holly Wethington’s claims and denied as to Plaintiff Makenzie Wethington’s claim for negligence. Since the skydiving contract is rendered void ab initio by means of Makenzie’s lawsuit, her breach of contract claim cannot proceed as a matter of law.

So Now What?

The minor plaintiff can sue, and the mother cannot.

This decision is not controlling in Oklahoma. The Oklahoma Supreme Court could still rule that a parent can sign away a minor’s right to sue.

At the same time, this decision outlines release law in Oklahoma and does a great job. As far as how the Oklahoma Supreme Court will rule, the Federal District Court knows the Supreme Court in the state where they sit better than any other person, and I would vote with the Federal Court.

As in other cases in the majority of states, a parent cannot sign away a minor’s right to sue.  To see the States where a parent can sign away a minor’s right to sue and the decisions deciding that issue see States that allow a parent to sign away a minor’s right to sue.

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Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458

Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458
Jenifer Troxel, et vir v. Tommie Granville
No. 99-138
Supreme Court of the United States
530 U.S. 57; 120 S. Ct. 2054; 147 L. Ed. 2d 49; 2000 U.S. LEXIS 3767; 68 U.S.L.W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 2000 Colo. J. C.A.R. 3199; 13 Fla. L. Weekly Fed. S 365
January 12, 2000, Argued

June 5, 2000, Decided

Prior History: On Writ of Certiorari to the Supreme Court of Washington.
Disposition: 137 Wash. 2d 1, 969 P. 2d 21, affirmed.

Decision:

Application of Washington state child-visitation-rights statute to allow visitation rights to paternal grandparents held to violate mother’s Fourteenth Amendment due process right to bring up her children.

Summary:

A Washington state statute (1) permitted any person to petition a state court for child visitation rights at any time, and (2) authorized the court to order visitation rights for any person when visitation might serve the best interest of the child. Pursuant to the statute, paternal grandparents filed a petition to obtain visitation rights with their deceased son’s children. After the Washington Superior Court for Skagit County granted the grandparents more visitation time than the children’s mother desired, the mother appealed. While the appeal was pending, the mother, who had never married the children’s father, was married to a father of six, who adopted the two children. The Washington Court of Appeals reversed the visitation order and dismissed the petition for visitation (87 Wash App 131, 940 P2d 698). The Washington Supreme Court, affirming the judgment of the Court of Appeals, expressed the view that the statute infringed on the fundamental right, under the Federal Constitution, of parents to rear their children (137 Wash 2d 1, 969 P2d 21).
On certiorari, the United States Supreme Court affirmed. Although unable to agree on an opinion, six members of the court agreed that application of the state statute to allow visitation rights to the paternal grandparents violated the mother’s right, under the due process clause of the Constitution’s Fourteenth Amendment, to bring up her children.
O’Connor, J., announced the judgment of the court and, in an opinion joined by Rehnquist, Ch. J., and Ginsburg and Breyer, JJ., expressed the view that (1) the Fourteenth Amendment’s due process clause protected the fundamental right of parents to make decisions concerning the care, custody, and control of their children; and (2) as applied to the mother and her family in the instant case, the state statute unconstitutionally infringed on that fundamental right, as (a) the grandparents did not allege, and no court had found, that the mother was an unfit parent, (b) there was a traditional presumption that fit parents acted in the best interests of their children, and (c) there was no allegation that the mother ever sought to cut off visitation entirely.
Souter, J., concurring in the judgment, expressed the view that there should be a simple affirmance of the facial invalidation, by the Supreme Court of Washington, of its own state statute.
Thomas, J., concurring in the judgment, expressed the view that (1) the appropriate standard of review for the alleged infringement of fundamental constitutional rights was strict scrutiny, and (2) in the case at hand, the state lacked even a legitimate interest in second-guessing a fit parent’s decision regarding visitation with third parties.
Stevens, J., dissenting, expressed the view that (1) certiorari should have been denied, because there was no pressing need to review a decision of a state’s highest court that merely required the state legislature to draft a better statute; and (2) the due process clause left room for states to consider the impact on a child of possibly arbitrary parental decisions that neither served nor were motivated by the best interests of the child.
Scalia, J., dissenting, expressed the view that the power that the Constitution conferred upon a judge, as a judge, did not entitle the judge to deny legal effect to laws that, in the judge’s view, infringed upon what was, in the judge’s view, parents’ unenumerated constitutional right to rear their children.
Kennedy, J., dissenting, expressed the view that the Washington Supreme Court’s judgment ought to be vacated and the case ought to be remanded for further proceedings, because the Washington Supreme Court had erred in its central conclusion that the best-interests-of-the-child standard was never appropriate in third-party visitation cases.

Lawyers’ Edition Headnotes:

[***LEdHN1]

Constitutional Law §528.5

· due process—parental right to raise children—grandparents’ visitation rights Headnote:[1A][1B][1C][1D][1E]
Application of a state statute—which (1) permits any person to petition a state court for child visitation rights at any time, and (2) authorizes the court to order visitation rights for any person when visitation may serve the best interest of the child—to allow visitation rights to two children’s paternal grandparents violates the mother’s due process right, under the Federal Constitution’s Fourteenth Amendment, to bring up her children. [Per O’Connor, J., Rehnquist, Ch. J., and Ginsburg, Breyer, Souter, and Thomas, JJ. Dissenting:
Stevens, Scalia, and Kennedy, JJ.]
[***LEdHN2]

Constitutional Law §528.5

· due process—child visitation
Headnote:[2A][2B]
With respect to the right, under the due process clause of the Federal Constitution’s Fourteenth Amendment, of a custodial parent to bring up his or her children without governmental interference, the constitutionality of the application of a standard for awarding child visitation rights depends on specific factors; the constitutionality protections in this area are best elaborated with care. [Per O’Connor, J., Rehnquist, Ch. J., and Ginsburg, Breyer, and Kennedy, JJ. Dissenting in part: Scalia, J.] SYLLABUS: Washington Rev. Code § 26.10.160(3) 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. Petitioners Troxel petitioned for the right to visit their deceased son’s daughters. Respondent Granville, the girls’ mother, did not oppose all visitation, but objected to the amount sought by the Troxels. The Superior Court ordered more visitation than Granville desired, and she appealed. The State Court of Appeals reversed and dismissed the Troxels’ petition. In affirming, the State Supreme Court held, inter alia, that § 26.10.160(3) unconstitutionally infringes on parents’ fundamental right to rear their children. Reasoning that the Federal Constitution permits a State to interfere with this right only to prevent harm or potential harm to the child, it found that § 26.10.160(3) does not require a threshold showing of harm and sweeps too broadly by permitting any person to petition at any time with the only requirement being that the visitation serve the best interest of the child.
Held: The judgment is affirmed.
137 Wn.2d 1, 969 P.2d 21, affirmed.
Justice O’Connor, joined by The Chief Justice, Justice Ginsburg, and Justice Breyer, concluded that § 26.10.160(3), as applied to Granville and her family, violates her due process right to make decisions concerning the care, custody, and control of her daughters. Pp. 5-17.
(a) The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 117 S. Ct. 2258, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e.g., Stanley v. Illinois, 405 U.S. 645, 651. Pp. 5-8, 31 L. Ed. 2d 551, 92 S. Ct. 1208.
(b) Washington’s breathtakingly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interest. A parent’s estimation of the child’s best interest is accorded no deference. The State Supreme Court had the opportunity, but declined, to give § 26.10.160(3) a narrower reading. A combination of several factors compels the conclusion that § 26.10.160(3), as applied here, exceeded the bounds of the Due Process Clause. First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U.S. 292, 304, 123 L. Ed. 2d 1, 113 S. Ct. 1439. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville’s determination of her daughters’ best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters’ best interest and thus failed to provide any protection for her fundamental right. The court also gave no weight to Granville’s having assented to visitation even before the filing of the petition or subsequent court intervention. These factors, when considered with the Superior Court’s slender findings, show that this case involves nothing more than a simple disagreement between the court and Granville concerning her children’s best interests, and that the visitation order was an unconstitutional infringement on Granville’s right to make decisions regarding the rearing of her children. Pp. 8-14.
(c) Because the instant decision rests on § 26.10.160(3)’s sweeping breadth and its application here, there is no need to consider the question whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation or to decide the precise scope of the parental due process right in the visitation context. There is also no reason to remand this case for further proceedings. The visitation order clearly violated the Constitution, and the parties should not be forced into additional litigation that would further burden Granville’s parental right. Pp. 14-17.
JUSTICE SOUTER concluded that the Washington Supreme Court’s second reason for invalidating its own state statute—that it sweeps too broadly in authorizing any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular best-interests standard—is consistent with this Court’s prior cases. This ends the case, and there is no need to decide whether harm is required or to consider the precise scope of a parent’s right or its necessary protections. Pp. 1-5.
JUSTICE THOMAS agreed that this Court’s recognition of a fundamental right of parents to direct their children’s upbringing resolves this case, but concluded that strict scrutiny is the appropriate standard of review to apply to infringements of fundamental rights. Here, the State lacks a compelling interest in second-guessing a fit parent’s decision regarding visitation with third parties. Pp. 1-2.
COUNSEL: Mark D. Olson argued the cause for petitioners.
Catherine W. Smith argued the cause for respondent. JUDGES: O’CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and GINSBURG and BREYER, JJ., joined. SOUTER, J., and THOMAS, J., filed opinions concurring in the judgment. STEVENS, J., SCALIA, J., and KENNEDY, J., filed dissenting opinions.

Opinion by: O’Connor

Opinion: [*60] [**2057] [***53] [***LEdHR1A] [1A] Justice O’Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, justice Ginsburg, and Justice Breyer join.
Section 26.10.160(3) of the Revised Code of Washington permits “any person” to petition a superior court for visitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of the child.” Petitioners Jenifer and Gary Troxel petitioned a Washington Superior Court for the right to visit their grandchildren, Isabelle and Natalie Troxel. Respondent Tommie Granville, the mother of Isabelle and Natalie, opposed the petition. The case ultimately reached the Washington Supreme Court, which held that § 26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children.

I

Tommie Granville and Brad Troxel shared a relationship that ended in June 1991. The two never married, but they had two daughters, Isabelle and Natalie. Jenifer and Gary Troxel are Brad’s parents, and thus the paternal grandparents of Isabelle and Natalie. After Tommie and Brad separated in 1991, Brad lived with his parents and regularly brought his daughters to his parents’ home for weekend visitation. Brad committed suicide in May 1993. Although the Troxels at first continued to see Isabelle and Natalie on a regular basis after their son’s death, Tommie Granville informed [*61] the Troxels in October 1993 that she wished to limit their visitation with her daughters to one short visit per month. In re Smith, 137 Wn.2d 1, 6, 969 P.2d 21, 23-24 (1998); In re Troxel, 87 Wn. App. 131, 133, 940 P.2d 698, 698-699 (1997). [***54]
In December 1993, the Troxels commenced the present action by filing, in the Washington Superior Court for Skagit County, a petition to obtain visitation rights with Isabelle and Natalie. The Troxels filed their petition under two Washington statutes, Wash. Rev. Code §§ 26.09.240 and 26.10.160(3) (1994). Only the latter statute is at issue in this case. Section 26.10.160(3) provides: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The [**2058] court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. Granville did not oppose visitation altogether, but instead asked the court to order one day of visitation per month with no overnight stay. 87 Wn. App. at 133-134, 940 P.2d at 699. In 1995, the Superior Court issued an oral ruling and entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents’ birthdays. 137 Wn.2d at 6, 969 P.2d at 23; App. to Pet. for Cert. 76a-78a.
Granville appealed, during which time she married Kelly Wynn. Before addressing the merits of Granville’s appeal, the Washington Court of Appeals remanded the case to the Superior Court for entry of written findings of fact and conclusions of law. 137 Wn.2d at 6, 969 P.2d at 23. On remand, the Superior Court found that visitation was in Isabelle and Natalie’s best interests:
“The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Petitioners [*62] can provide opportunities for the children in the areas of cousins and music.
“ . . . The court took into consideration all factors regarding the best interest of the children and considered all the testimony before it. The children would be benefitted from spending quality time with the Petitioners, provided that that time is balanced with time with the childrens’ [sic] nuclear family. The court finds that the childrens’ [sic] best interests are served by spending time with their mother and stepfather’s other six children.” App. 70a.
Approximately nine months after the Superior Court entered its order on remand, Granville’s husband formally adopted Isabelle and Natalie. Id. at 60a-67a.
The Washington Court of Appeals reversed the lower court’s visitation order and dismissed the Troxels’ petition for visitation, holding that nonparents lack standing to seek visitation under § 26.10.160(3) unless a custody action is pending. In the Court of Appeals’ view, that limitation on nonparental visitation actions was “consistent with the constitutional restrictions on state interference with parents’ fundamental liberty interest in the care, custody, and management of their children.” 87 Wn. App. at 135, 940 P.2d at 700 (internal quotation marks omitted). Having resolved the case on the statutory ground, however, the Court of Appeals did not expressly pass on Granville’s constitutional challenge to the visitation statute. Id. at 138, 940 P.2d at 701.
The Washington Supreme Court [***55] granted the Troxels’ petition for review and, after consolidating their case with two other visitation cases, affirmed. The court disagreed with the Court of Appeals’ decision on the statutory issue and found that the plain language of § 26.10.160(3) gave the Troxels standing to seek visitation, irrespective of whether a custody action was pending. 137 Wn.2d at 12, 969 P. [*63] 2d at 26-27. The Washington Supreme Court nevertheless agreed with the Court of Appeals’ ultimate conclusion that the Troxels could not obtain visitation of Isabelle and Natalie pursuant to § 26.10.160(3). The court rested its decision on the Federal Constitution, holding that § 26.10.160(3) unconstitutionally infringes on the fundamental right of parents to rear their children. In the court’s view, there were at least two problems with the nonparental visitation statute. First, according to the Washington Supreme Court, the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Id. at 15-20, 969 P.2d at 28-30. Second, [**2059] by allowing “’any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child,” the Washington visitation statute sweeps too broadly. Id. at 20, 969 P.2d at 30. “It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a ‘better’ decision.” Ibid., 969 P.2d at 31. The Washington Supreme Court held that “parents have a right to limit visitation of their children with third persons,” and that between parents and judges, “the parents should be the ones to choose whether to expose their children to certain people or ideas.” Id. at 21, 969 P.2d at 31. Four justices dissented from the Washington Supreme Court’s holding on the constitutionality of the statute. Id. at 23-43, 969 P.2d at 32-42.
We granted certiorari, 527 U.S. 1069 (1999), and now affirm the judgment.

II

The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household. While many children may have two married parents and [*64] grandparents who visit regularly, many other children are raised in single-parent households. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. U.S. Dept. of Commerce, Bureau of Census, Current Population Reports, 1997 Population Profile of the United States 27 (1998). Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children—or 5.6 percent of all children under age 18 — lived in the household of their grandparents. U.S. Dept. of Commerce, Bureau of Census, Current Population Reports, Marital Status and Living Arrangements: March 1998 (Update), p. i (1998).
The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States’ recognition of these changing realities [***56] of the American family. Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States’ nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons—for example, their grandparents. The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvious cost. For example, the State’s recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. Contrary to Justice Stevens’ accusation, our description of state nonparental visitation statutes in these terms, of course, is not meant to suggest that “children are so much chattel.” Post, at 10 (dissenting opinion). Rather, our terminology is intended to highlight the fact that these [*65] statutes can present questions of constitutional import. In this case, we are presented with just such a question. Specifically, we are asked to decide whether § 26.10.160(3), as applied to Tommie Granville and her family, violates the Federal Constitution.
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, 138 L. Ed. 2d 772, [**2060] 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.” 521 U.S. at 720; see also Reno v. Flores, 507 U.S. 292, 301-302, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993).
The 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. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” 268 U.S. at 535. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary [*66] function and freedom include preparation for obligations the state can neither supply nor [***57] hinder.” 321 U.S. at 166.
[***LEdHR1B] [1B] In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘comes to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). 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. [*67]
Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental [**2061] parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute’s text, “any person may petition the court for visitation rights at any time,” and the court may grant such visitation rights whenever “visitation may serve the best interest of the child.” § 26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any [***58] decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests. The Washington Supreme Court had the opportunity to give § 26.10.160(3) a narrower reading, but it declined to do so. See, e.g., 137 Wn.2d at 5, 969 P.2d at 23 (“[The statute] allows any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm”); id. at 20, 969 P.2d at 30 (“[The statute] allows ‘any person’ to petition for forced visitation of a child at ‘any time’ with the only requirement being that the visitation serve the best interest of the child”). [*68]
Turning to the facts of this case, the record reveals that the Superior Court’s order was based on precisely the type of mere disagreement we have just described and nothing more. The Superior Court’s order was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters. To be sure, this case involves a visitation petition filed by grandparents soon after the death of their son—the father of Isabelle and Natalie—but the combination of several factors here compels our conclusion that § 26.10.160(3), as applied, exceeded the bounds of the Due Process Clause.
First, the Troxels did not allege, and no court has found, that Granville was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham:
“Our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations. . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 U.S. at 602 (alteration in original) (internal quotation marks and citations omitted).
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 [*69] best decisions concerning the rearing of that parent’s children. See, e.g., Flores, 507 U.S. at 304. [**2062]
The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination of her daughters’ best interests. More importantly, it appears that the Superior Court applied exactly the opposite presumption. In reciting its oral ruling after the conclusion of closing arguments, the Superior Court judge explained:
“The burden is to show that it is in the best interest of the children to have some visitation and some quality time with their grandparents. [***59] I think in most situations a commonsensical approach [is that] it is normally in the best interest of the children to spend quality time with the grandparent, unless the grandparent, [sic] there are some issues or problems involved wherein the grandparents, their lifestyles are going to impact adversely upon the children. That certainly isn’t the case here from what I can tell.” Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 19, 1994), p. 213 (hereinafter Verbatim Report).
The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impacted adversely.” In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters. The judge reiterated moments later: “I think [visitation with the Troxels] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.” Id. at 214.
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. See Parham, supra, at 602. In that respect, the court’s presumption [*70] failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters. Cf., e.g., Cal. Fam. Code Ann. § 3104(e) (West 1994) (rebuttable presumption that grandparent visitation is not in child’s best interest if parents agree that visitation rights should not be granted); Me. Rev. Stat. Ann., Tit. 19A, § 1803(3) (1998) (court may award grandparent visitation if in best interest of child and “would not significantly interfere with any parent-child relationship or with the parent’s rightful authority over the child”); Minn. Stat. § 257.022(2)(a)(2) (1998) (court may award grandparent visitation if in best interest of child and “such visitation would not interfere with the parent-child relationship”); Neb. Rev. Stat. § 43-1802(2) (1998) (court must find “by clear and convincing evidence” that grandparent visitation “will not adversely interfere with the parent-child relationship”); R. I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp. 1999) (grandparent must rebut, by clear and convincing evidence, presumption that parent’s decision to refuse grandparent visitation was reasonable); Utah Code Ann. § 30-5-2(2)(e) (1998) (same); Hoff v. Berg, 1999 ND 115, 595 N.W.2d 285, 291-292 (N. D. 1999) (holding North Dakota grandparent visitation statute unconstitutional because State has no “compelling interest in presuming visitation rights of grandparents to an unmarried minor are in the child’s best interests and forcing parents to accede to court-ordered grandparental visitation unless the parents are first able to prove such visitation is not in the best interests of their minor 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. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination. [*71] [***60]
Finally, we note that there is no allegation that Granville ever sought to cut off [**2063] visitation entirely. Rather, the present dispute originated when Granville informed the Troxels that she would prefer to restrict their visitation with Isabelle and Natalie to one short visit per month and special holidays. See 87 Wn. App. at 133, 940 P.2d at 699; Verbatim Report 12. In the Superior Court proceedings Granville did not oppose visitation but instead asked that the duration of any visitation order be shorter than that requested by the Troxels. While the Troxels requested two weekends per month and two full weeks in the summer, Granville asked the Superior Court to order only one day of visitation per month (with no overnight stay) and participation in the Granville family’s holiday celebrations. See 87 Wn. App. at 133, 940 P.2d at 699; Verbatim Report 9 (“Right off the bat we’d like to say that our position is that grandparent visitation is in the best interest of the children. It is a matter of how much and how it is going to be structured”) (opening statement by Granville’s attorney). The Superior Court gave no weight to Granville’s having assented to visitation even before the filing of any visitation petition or subsequent court intervention. The court instead rejected Granville’s proposal and settled on a middle ground, ordering one weekend of visitation per month, one week in the summer, and time on both of the petitioning grandparents’ birthdays. See 87 Wn. App. at 133-134, 940 P.2d at 699; Verbatim Report 216-221. Significantly, many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. See, e.g., Miss. Code Ann. § 93-16-3(2)(a) (1994) (court must find that “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child”); Ore. Rev. Stat. § 109.121(1)(a)(B) (1997) (court may award visitation if the “custodian of the child has denied the grandparent reasonable opportunity to visit the child”); R. I. Gen. Laws § 15-5-24.3(a)(2)(iii)-(iv) [*72] (Supp. 1999) (court must find that parents prevented grandparent from visiting grandchild and that “there is no other way the petitioner is able to visit his or her grandchild without court intervention”).
Considered together with the Superior Court’s reasons for awarding visitation to the Troxels, the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on Granville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters. The Washington Superior Court failed to accord the determination of Granville, a fit custodial parent, any material weight. In fact, the Superior Court made only two formal findings in support of its visitation order. First, the Troxels “are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music.” App. 70a. Second, “the children would be benefitted from spending quality time with the [Troxels], provided that that time is balanced with time with the childrens’ [sic] nuclear family.” Ibid. These slender findings, in combination with the court’s announced presumption in favor of grandparent visitation and its failure to accord significant weight to Granville’s already having offered meaningful visitation to the Troxels, show that this case involves nothing [***61] more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interests. The Superior Court’s announced reason for ordering one week of visitation in the summer demonstrates our conclusion well: “I look back on some personal experiences . . . . We always spent as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience. Maybe that can, in this family, if that is how it works out.” Verbatim Report 220-221. As we have explained, [**2064] the Due Process Clause does not permit a State to infringe on the fundamental right [*73] of parents to make childrearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally—which places no limits on either the persons who may petition for visitation or the circumstances in which such a petition may be granted—nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional. [***LEdHR2A] [2A] Because we rest our decision on the sweeping breadth of § 26.10.160(3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best “elaborated with care.” Post, at 9 (dissenting opinion). Because much state-court adjudication in this context occurs on a case-by-case basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter. n1 See, e.g., Fairbanks [*74] v. McCarter, 330 Md. 39, 49-50, 622 A.2d 121, 126-127 (1993) (interpreting best-interest standard in grandparent visitation statute normally to [***62] require court’s consideration of certain factors); Williams v. Williams, 256 Va. 19, 501 S.E.2d 417, 418 (1998) (interpreting Virginia nonparental visitation statute to require finding of harm as condition precedent to awarding visitation).

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n1 All 50 States have statutes that provide for grandparent visitation in some form. See Ala. Code § 30-3-4.1 (1989); Alaska Stat. Ann. § 25.20.065 (1998); Ariz. Rev. Stat. Ann. § 25-409 (1994); Ark. Code Ann. § 9-13-103 (1998);
Cal. Fam. Code Ann. § 3104 (West 1994); Colo. Rev. Stat. § 19-1-117 (1999);
Conn. Gen. Stat. § 46b-59 (1995); Del. Code Ann., Tit. 10, § 1031(7) (1999);
Fla. Stat. § 752.01 (1997); Ga. Code Ann. § 19-7-3 (1991); Haw. Rev. Stat. § 571-46.3 (1999); Idaho Code § 32-719 (1999); Ill. Comp. Stat., ch. 750, § 5/607 (1998); Ind. Code § 31-17-5-1 (1999); Iowa Code § 598.35 (1999); Kan. Stat. Ann. § 38-129 (1993); Ky. Rev. Stat. Ann. § 405.021 (Baldw. 1990); La. Rev. Stat.
Ann. § 9:344 (West Supp. 2000); La. Civ. Code Ann., Art. 136 (West Supp. 2000);
Me. Rev. Stat. Ann., Tit. 19A, § 1803 (1998); Md. Fam. Law Code Ann. § 9-102 (1999); Mass. Gen. Laws § 119:39D (1996); Mich. Comp. Laws Ann. § 722.27b (Supp. 1999); Minn. Stat. § 257.022 (1998); Miss. Code Ann. § 93-16-3 (1994); Mo. Rev.
Stat. § 452.402 (Supp. 1999); Mont. Code Ann. § 40-9-102 (1997); Neb. Rev. Stat.
§ 43-1802 (1998); Nev. Rev. Stat. § 125C.050 (Supp. 1999); N. H. Rev. Stat. Ann.
§ 458:17-d (1992); N. J. Stat. Ann. § 9:2-7.1 (West Supp. 1999-2000); N. M.
Stat. Ann. § 40-9-2 (1999); N. Y. Dom. Rel. Law § 72 (McKinney 1999); N. C. Gen. Stat. §§ 50-13.2, 50-13.2A (1999); N. D. Cent. Code § 14-09-05.1 (1997); Ohio Rev. Code Ann. §§ 3109.051, 3109.11 (Supp. 1999); Okla. Stat., Tit. 10, § 5 (Supp. 1999); Ore. Rev. Stat. § 109.121 (1997); 23 Pa. Cons. Stat. §§ 5311-5313 (1991); R. I. Gen. Laws §§ 15-5-24 to 15-5-24.3 (Supp. 1999); S. C. Code Ann. § 20-7-420(33) (Supp. 1999); S. D. Codified Laws § 25-4-52 (1999); Tenn. Code Ann. §§ 36-6-306, 36-6-307 (Supp. 1999); Tex. Fam. Code Ann. § 153.433 (Supp. 2000);
Utah Code Ann. § 30-5-2 (1998); Vt. Stat. Ann., Tit. 15, §§ 1011-1013 (1989);
Va. Code Ann. § 20-124.2 (1995); W. Va. Code §§ 48-2B-1 to 48-2B-7 (1999); Wis.
Stat. §§ 767.245, 880.155 (1993-1994); Wyo. Stat. Ann. § 20-7-101 (1999).

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Justice Stevens criticizes our reliance on what he characterizes as merely “a guess” about the Washington courts’ interpretation of § 26.10.160(3). Post, at 2. Justice Kennedy likewise states that “more specific guidance should await a case in which a State’s highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself.” Post, at 10. [**2065] We respectfully disagree. There is no need to hypothesize about how the Washington courts might apply § 26.10.160(3) because the Washington Superior Court did apply the statute in this very case. Like the Washington Supreme Court, then, we are presented with an actual visitation order and the reasons why the Superior Court believed [*75] entry of the order was appropriate in this case. Faced with the Superior Court’s application of § 26.10.160(3) to Granville and her family, the Washington Supreme Court chose not to give the statute a narrower construction. Rather, that court gave § 26.10.160(3) a literal and expansive interpretation. As we have explained, that broad construction plainly encompassed the Superior Court’s application of the statute. See supra, at 8-9.
[***LEdHR1C] [1C] There is thus no reason to remand the case for further proceedings in the Washington Supreme Court. As Justice Kennedy recognizes, the burden of litigating a domestic relations proceeding can itself be “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.” Post at 9. In this case, the litigation costs incurred by Granville on her trip through the Washington court system and to this Court are without a doubt already substantial. As we have explained, it is apparent that the entry of the visitation order in this case violated the Constitution. We should say so now, without forcing the parties into additional litigation that would further burden Granville’s parental right. We therefore hold that the application of § 26.10.160(3) to Granville and her family violated her due process right to make decisions concerning the care, custody, and control of her daughters.
Accordingly, the judgment of the Washington Supreme Court is affirmed.
It is so ordered.

Concur By: Souter; Thomas

Concur:
Justice Souter, concurring in the judgment. [***LEdHR1D] [1D] I concur in the judgment affirming the decision of the Supreme Court of Washington, whose facial invalidation of its own state statute is consistent with this Court’s prior cases addressing the substantive interests at stake. I would say no [***63] more. The issues that might well be presented by reviewing a decision addressing the specific application of the [*76] state statute by the trial court, ante, at 9-14, are not before us and do not call for turning any fresh furrows in the “treacherous field” of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 502, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977) (opinion of Powell, J.).
The Supreme Court of Washington invalidated its state statute based on the
text of the statute alone, not its application to any particular case. n1 Its
ruling rested on two independently sufficient grounds: the [**2066] failure of
the statute to require harm to the child to justify a disputed visitation order,
In re Smith, 137 Wn.2d 1, 17, 969 P.2d 21, 29 (1998), and the statute’s
authorization of “any person” at “any time” to petition and to receive visitation rights subject only to a free-ranging best-interests-of-the-child standard, 137 Wn.2d at 20-21, 969 P.2d at 30-31. Ante, at 4. I see no error in the second reason, that because the state statute authorizes any person at any time to request (and a judge to award) visitation rights, subject only to the State’s particular best-interests [*77] standard, the state statute sweeps too broadly and is unconstitutional on its face. Consequently, there is no need to decide whether harm is required or to consider the precise scope of the parent’s right or its necessary protections.

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n1 The Supreme Court of Washington made its ruling in an action where three separate cases, including the Troxels’, had been consolidated. In re Smith, 137 Wn.2d 1, 6-7, 969 P.2d 21, 23-24 (1998). The court also addressed two statutes, Wash. Rev. Code § 26.10.160(3) (Supp. 1996) and former Wash. Rev. Code § 26.09.240 (1994), 137 Wn.2d at 7, 969 P.2d at 24, the latter of which is not even at issue in this case. See Brief for Petitioners 6, n. 9; see also ante, at 2. Its constitutional analysis discussed only the statutory language and neither mentioned the facts of any of the three cases nor reviewed the records of their trial court proceedings below. 137 Wn.2d at 13-21, 969 P.2d at 27-31. The decision invalidated both statutes without addressing their application to particular facts: “We conclude petitioners have standing but, as written, the statutes violate the parents’ constitutionally protected interests. These statutes allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.” Id. at 5, 969 P.2d at 23 (emphasis added); see also id. at 21, 969 P.2d at 31 (“RCW 26.10.160(3) and former RCW 26.09.240 impermissibly interfere with a parent’s fundamental interest in the care, custody and companionship of the child” (citations and internal quotation marks omitted)).

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We have long recognized that a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Stanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978); Parham v. J.
R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982); Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997). As we first acknowledged in Meyer, the right of parents to “bring up children,” 262 U.S. at 399, and “to control the education of their own” is protected by the Constitution, 262 U.S. at 401. See also Glucksberg, supra, at 761 [***64] (SOUTER, J., concurring in judgment).
On the basis of this settled principle, the Supreme Court of Washington invalidated its statute because it authorized a contested visitation order at the intrusive behest of any person at any time subject only to a best-interests-of-the-child standard. In construing the statute, the state court explained that the “any person” at “any time” language was to be read literally, at 137 Wn.2d at 10-11, 969 P.2d at 25-27, and that “most notably the statute does not require the petitioner to establish that he or she has a substantial relationship with the child,” 137 Wn.2d at 20-21, 969 P.2d at 31. Although the statute speaks of granting visitation rights whenever “visitation may serve the best interest of the child,” Wash. Rev. Code § 26.10.160(3) (1994), the state court authoritatively read this provision as placing hardly any limit on a court’s discretion to award visitation rights. As the court understood it, the specific best-interests provision in the [*78] statute would allow a court to award visitation whenever it thought it could make a better decision than a child’s parent had done. See 137 Wn.2d at 20, 969 P.2d at 31 (“It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a ‘better’ decision”). n2 On that basis in part, the Supreme Court of Washington invalidated the State’s own statute:
“Parents have a right to limit visitation of their children with third persons.”
Id. at 21, 969 P.2d at 31.

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n2 As JUSTICE O’CONNOR points out, the best-interests provision “contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge.” Ante, at 8.

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Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child, but Meyer’s repeatedly recognized right of upbringing would be a sham if it failed to encompass the right to be free of judicially compelled visitation by “any party” at “any time” a judge believed [**2067] he “could make a ‘better’ decision” n3 than the objecting parent had done. 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 [*79] to prevail over a parent’s choice of private school. Pierce, supra, at 535 (“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature [***65] of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations”). 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. n4 To say the least (and as the Court implied in Pierce), parental choice in such matters is not merely a default rule in the absence of either governmental choice or the government’s designation of an official with the power to choose for whatever reason and in whatever circumstances.

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n3 Cf. Chicago v. Morales, 527 U.S. 41, 71, 144 L. Ed. 2d 67, 119 S. Ct.
1849 (1999) (BREYER, J., concurring in part and concurring in judgment) (“The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications”).
n4 The Supreme Court of Washington invalidated the broadly sweeping statute at issue on similarly limited reasoning: “Some parents and judges will not care if their child is physically disciplined by a third person; some parents and judges will not care if a third person teaches the child a religion inconsistent with the parents’ religion; and some judges and parents will not care if the child is exposed to or taught racist or sexist beliefs. But many parents and judges will care, and, between the two, the parents should be the ones to choose whether to expose their children to certain people or ideas.” 137 Wn.2d at 21, 969 P.2d at 31 (citation omitted).

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Since I do not question the power of a State’s highest court to construe its domestic statute and to apply a demanding standard when ruling on its facial constitutionality, n5 see Chicago v. Morales, 527 U.S. 41, 55, n. 22, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999) (opinion of STEVENS, J.), this for me is the end of the case. I would simply affirm the decision of the Supreme Court of Washington that its statute, authorizing courts to grant visitation rights to any person at any time, is unconstitutional. I therefore respectfully concur in the judgment.

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n5 This is the pivot between JUSTICE KENNEDY’s approach and mine.
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JUSTICE THOMAS, concurring in the judgment.
I write separately to note that neither party has argued that our substantive
due process cases were wrongly decided and that the original understanding of
the Due Process Clause precludes judicial enforcement of unenumerated rights
under that constitutional provision. As a result, I express no view on the
merits of this matter, and I understand the plurality as well to leave the
resolution of that issue for another day. * n1
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n1 * This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause. See Saenz v. Roe, 526 U.S. 489, 527-528, 143 L. Ed. 2d 689, 119 S. Ct. 1518 (1999) (THOMAS, J., dissenting).

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[**2068]
[***LEdHR1E] [1E] Consequently, I agree with the plurality that this Court’s
recognition of a fundamental right of parents to direct the upbringing of their
children resolves this case. Our decision in Pierce v. Society of Sisters, 268
U.S. 510, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), holds that parents have a
fundamental constitutional right to rear their children, including the right to
determine who shall educate and socialize them. The opinions of the plurality,
JUSTICE KENNEDY, and JUSTICE SOUTER recognize such a right, but curiously none
of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. 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. On this basis, I would affirm the judgment below.

DISSENT BY: STEVENS; SCALIA; KENNEDY

DISSENT: [***66] JUSTICE STEVENS, dissenting.
The Court today wisely declines to endorse either the holding or the reasoning of the Supreme Court of Washington. In my opinion, the Court would have been even wiser to deny certiorari. Given the problematic character of the trial court’s decision and the uniqueness of the Washington statute, there was no pressing need to review a State Supreme [*81] Court decision that merely requires the state legislature to draft a better statute.
Having decided to address the merits, however, the Court should begin by recognizing that the State Supreme Court rendered a federal constitutional judgment holding a state law invalid on its face. In light of that judgment, I believe that we should confront the federal questions presented directly. For the Washington statute is not made facially invalid either because it may be invoked by too many hypothetical plaintiffs, or because it leaves open the possibility that someone may be permitted to sustain a relationship with a child without having to prove that serious harm to the child would otherwise result.

I

In response to Tommie Granville’s federal constitutional challenge, the State Supreme Court broadly held that Wash. Rev. Code § 26.10.160(3) (Supp. 1996) was invalid on its face under the Federal Constitution. n1 Despite the nature of this judgment, JUSTICE O’CONNOR would hold that the Washington visitation statute violated the Due Process Clause of the Fourteenth Amendment only as applied. Ante, at 6, 8, 14-15. I agree with JUSTICE SOUTER, ANTE, at 1, and n. 1 (opinion concurring in judgment), that this approach is untenable.

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n1 The State Supreme Court held that, “as written, the statutes violate the parents’ constitutionally protected interests.” In re Smith, 137 Wn.2d 1, 5, 969 P.2d 21, 23 (1998).

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The task of reviewing a trial court’s application of a state statute to the
particular facts of a case is one that should be performed in the first instance
by the state appellate courts. In this case, because of their views of the
Federal Constitution, the Washington state appeals courts have yet to decide
whether the trial court’s findings were adequate under the [*82] statute. n2
Any as-applied critique of the trial court’s judgment that this Court might
offer could only be based upon a guess about the state courts’ application of
that State’s statute, [**2069] and an independent assessment of the facts in
this case—both judgments that we are ill-suited and ill-advised to make. n3
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n2 As the dissenting judge on the state appeals court noted, “the trial court here was not presented with any guidance as to the proper test to be applied in a case such as this.” In re Troxel, 87 Wn. App. 131, 143, 940 P.2d 698, 703 (1997) (opinion of Ellington, J.). While disagreeing with the appeals court majority’s conclusion that the state statute was constitutionally infirm, Judge Ellington recognized that despite this disagreement, the appropriate result would not be simply to affirm. Rather, because there had been no definitive guidance as to the proper construction of the statute, “the findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings.” Ibid.
n3 Unlike JUSTICE O’CONNOR, ante, at 10-11, I find no suggestion in the trial court’s decision in this case that the court was applying any presumptions at all in its analysis, much less one in favor of the grandparents. The first excerpt JUSTICE O’CONNOR quotes from the trial court’s ruling, ante, at 10, says nothing one way or another about who bears the burden under the statute of demonstrating “best interests.” There is certainly no indication of a presumption against the parents’ judgment, only a “’commonsensical’” estimation that, usually but not always, visiting with grandparents can be good for children. Ibid. The second quotation, ante, at 11, “’I think [visitation] would be in the best interest of the children and I haven’t been shown that it is not in [the] best interest of the children,’” sounds as though the judge has simply concluded, based on the evidence before him, that visitation in this case would be in the best interests of both girls. Verbatim Report of Proceedings in In re Troxel, No. 93-3-00650-7 (Wash. Super. Ct., Dec. 14, 1994), p. 214. These statements do not provide us with a definitive assessment of the law the court applied regarding a “presumption” either way. Indeed, a different impression is conveyed by the judge’s very next comment: “That has to be balanced, of course, with Mr. and Mrs. Wynn [a.k.a. Tommie Granville], who are trying to put together a family that includes eight children, . . . trying to get all those children together at the same time and put together some sort of functional unit wherein the children can be raised as brothers and sisters and spend lots of quality time together.” Ibid. The judge then went on to reject the Troxels’ efforts to attain the same level of visitation that their son, the girls’ biological father, would have had, had he been alive. “The fact that Mr. Troxel is deceased and he was the natural parent and as much as the grandparents would maybe like to step into the shoes of Brad, under our law that is not what we can do. The grandparents cannot step into the shoes of a deceased parent, per say [sic], as far as whole gamut of visitation rights are concerned.” Id. at 215. Rather, as the judge put it, “I understand your desire to do that as loving grandparents. Unfortunately that would impact too dramatically on the children and their ability to be integrated into the nuclear unit with the mother.” Id. at 222-223.
However one understands the trial court’s decision—and my point is merely to demonstrate that it is surely open to interpretation—its validity under the state statute as written is a judgment for the state appellate courts to make in the first instance.
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While I thus agree with JUSTICE [***67] SOUTER in this respect, I do not agree with his conclusion that the State Supreme Court made a definitive construction of the visitation statute that necessitates the constitutional conclusion he would draw. n4 As I read the State Supreme Court’s opinion, In re Smith, 137 Wn.2d 1, 19-20, 969 P.2d 21, 30-31 (1998), its interpretation of the Federal Constitution made it unnecessary to adopt a definitive construction of the statutory text, or, critically, to decide whether the statute had been correctly applied in this case. In particular, the state court gave no content to the phrase, “best interest of the child,” Wash. Rev. Code § 26.10.160(3) (Supp. 1996) — content that might well be gleaned from that State’s own statutes or decisional law employing the same phrase in different contexts, [*84] and from the myriad other state statutes and court decisions at least nominally applying the same standard. n5 Thus, [**2070] I believe that JUSTICE SOUTER’s conclusion that the statute unconstitutionally imbues state trial [***68] court judges with “’too much discretion in every case,’” ante, at 4, n. 3 (opinion concurring in judgment) (quoting Chicago v. Morales, 527 U.S. 41, 71, 144 L. Ed. 2d 67, 119 S. Ct. 1849 (1999) (BREYER, J., concurring)), is premature.

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n4 JUSTICE SOUTER would conclude from the state court’s statement that the statute “does not require the petitioner to establish that he or she has a substantial relationship with the child,” In re Smith, 137 Wn.2d 1, 21, 969 P.2d 21, 31 (1998), that the state court has “authoritatively read [the ‘best interests’] provision as placing hardly any limit on a court’s discretion to award visitation rights,” ante, at 3 (SOUTER, J., concurring in judgment). Apart from the question whether one can deem this description of the statute an “authoritative” construction, it seems to me exceedingly unlikely that the state court held the statute unconstitutional because it believed that the “best interests” standard imposes “hardly any limit” on courts’ discretion. See n. 5, infra.
n5 The phrase “best interests of the child” appears in no less than 10 current Washington state statutory provisions governing determinations from guardianship to termination to custody to adoption. See, e.g., Wash. Rev. Code § 26.09.240 (6) (Supp. 1996) (amended version of visitation statute enumerating eight factors courts may consider in evaluating a child’s best interests); § 26.09.002 (in cases of parental separation or divorce “best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care”; “best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm”); § 26.10.100 (“The court shall determine custody in accordance with the best interests of the child”). Indeed, the Washington state courts have invoked the standard on numerous occasions in applying these statutory provisions—just as if the phrase had quite specific and apparent meaning. See, e.g., In re McDole, 122 Wn.2d 604, 859 P.2d 1239 (1993) (upholding trial court “best interest” assessment in custody dispute); McDaniels v. Carlson , 108 Wn.2d 299, 310, 738 P.2d 254, 261 (1987) (elucidating “best interests” standard in paternity suit context). More broadly, a search of current state custody and visitation laws reveals fully 698 separate references to the “best interest of the child” standard, a number that, at a minimum, should give the Court some pause before it upholds a decision implying that those words, on their face, may be too boundless to pass muster under the Federal Constitution.

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We are thus presented with the unconstrued terms of a state statute and a State Supreme Court opinion that, in my view, significantly misstates the effect of the Federal Constitution upon any construction of that statute. Given that posture, I believe the Court should identify and correct the two flaws in the reasoning of the state court’s majority opinion, [*85] and remand for further review of the trial court’s disposition of this specific case.

II

In my view, the State Supreme Court erred in its federal constitutional analysis because neither the provision granting “any person” the right to petition the court for visitation, 137 Wn.2d at 20, 969 P.2d at 30, nor the absence of a provision requiring a “threshold . . . finding of harm to the child,” ibid., provides a sufficient basis for holding that the statute is invalid in all its applications. I believe that a facial challenge should fail whenever a statute has “a ‘plainly legitimate sweep,’” Washington v. Glucksberg, 521 U.S. 702, 739-740, 138 L. Ed. 2d 772, 117 S. Ct. 2258 and n. 7 (1997) (STEVENS, J., concurring in judgment). n6 Under the Washington statute, there are plainly any number of cases—indeed, one suspects, the most common to arise—in which the “person” among “any” seeking visitation is a once-custodial caregiver, an intimate relation, or even a genetic parent. Even the Court would seem to agree that in many circumstances, it would be constitutionally permissible for a court to award some visitation of a child to a parent or previous caregiver in cases of parental separation or divorce, cases of disputed custody, cases involving temporary foster care or guardianship, and so forth. As the statute plainly sweeps in a great deal of the permissible, the State Supreme Court majority incorrectly concluded that a statute authorizing “any person” to file a petition seeking visitation privileges would invariably run afoul of the Fourteenth Amendment.

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n6 It necessarily follows that under the far more stringent demands suggested by the majority in United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987) (plaintiff seeking facial invalidation “must establish that no set of circumstances exists under which the Act would be valid”), respondent’s facial challenge must fail.

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The second key aspect of the Washington Supreme Court’s holding—that the Federal Constitution requires a showing of actual or potential “harm” to the child before a court may [*86] order visitation continued over a parent’s objections—finds no support in this Court’s case law. [***69] While, as [**2071] the Court recognizes, the Federal Constitution certainly protects the parent-child relationship from arbitrary impairment by the State, see infra, at 7-8 we have never held that the parent’s liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm. n7 The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession.

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n7 The suggestion by JUSTICE THOMAS that this case may be resolved solely with reference to our decision in Pierce v. Society of Sisters, 268 U.S. 510, 535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925), is unpersuasive. Pierce involved a parent’s choice whether to send a child to public or private school. While that case is a source of broad language about the scope of parents’ due process rights with respect to their children, the constitutional principles and interests involved in the schooling context do not necessarily have parallel implications in this family law visitation context, in which multiple overlapping and competing prerogatives of various plausibly interested parties are at stake.

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Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies—the child.
It has become standard practice in our substantive due process jurisprudence to begin our analysis with an identification of the “fundamental” liberty interests implicated by the challenged state action. See, e.g., ante, at 6-8 (opinion of O’CONNOR, J.); Washington v. Glucksberg, 521 U.S. 702, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992). My colleagues are of course correct to recognize that the right of a parent to maintain a relationship with his or her child is among the interests included [*87] most often in the constellation of liberties protected through the Fourteenth Amendment. Ante, at 6-8 (opinion of O’CONNOR, J.). Our cases leave no doubt that parents have a fundamental liberty interest in caring for and guiding their children, and a corresponding privacy interest—absent exceptional circumstances—in doing so without the undue interference of strangers to them and to their child. Moreover, and critical in this case, our cases applying this principle have explained that with this constitutional liberty comes a presumption (albeit a rebuttable one) that “natural bonds of affection lead parents to act in the best interests of their children.” Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979); see also Casey, 505 U.S. at 895; Santosky v. Kramer, 455 U.S. 745, 759, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (State may not presume, at factfinding stage of parental rights termination proceeding, that interests of parent and child diverge); see also ante, at 9-10 (opinion of O’CONNOR, J.).
Despite this Court’s repeated recognition of these significant parental liberty interests, these interests have never been seen to be without limits. In Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983), [***70] for example, this Court held that a putative biological father who had never established an actual relationship with his child did not have a constitutional right to notice of his child’s adoption by the man who had married the child’s mother. As this Court had recognized in an earlier case, a parent’s liberty interests “’do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’” 463 U.S. at 260 (quoting Caban v. Mohammed, 441 U.S. 380, 397, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979)). [**2072]
Conversely, in Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989), this Court concluded that despite both biological parenthood and an established relationship with a young child, a father’s due process liberty interest in maintaining some connection with that child was not sufficiently powerful to overcome a state statutory presumption that the husband of the child’s mother was the child’s parent. As a result of the [*88] presumption, the biological father could be denied even visitation with the child because, as a matter of state law, he was not a “parent.” A plurality of this Court there recognized that the parental liberty interest was a function, not simply of “isolated factors” such as biology and intimate connection, but of the broader and apparently independent interest in family. See, e.g., 491 U.S. at 123; see also Lehr, 463 U.S. at 261; Smith v. Organization of Foster Families For Equality & Reform, 431 U.S. 816, 842-847, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977); Moore v. East Cleveland, 431 U.S. 494, 498-504, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977).
A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence of some embodiment of family. These limitations have arisen, not simply out of the definition of parenthood itself, but because of this Court’s assumption that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae, see, e.g., Reno v. Flores, 507 U.S. 292, 303-304, 123 L. Ed. 2d 1, 113 S. Ct. 1439 (1993); Santosky v. Kramer, 455 U.S. at 766; Parham, 442 U.S. at 605; Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct. 438 (1944), and, critically, the child’s own complementary interest in preserving relationships that serve her welfare and protection, Santosky, 455 U.S. at 760.
While this Court has not yet had occasion to elucidate the nature of a
child’s liberty interests in preserving established familial or family-like
bonds, 491 U.S. at 130 (reserving the question), it seems to me extremely
likely that, to the extent parents and families have fundamental liberty
interests in preserving such intimate relationships, so, too, do children have
these interests, and so, too, must their interests be balanced in the equation.
n8 At a minimum, our [***71] prior cases recognizing [*89] that children
are, generally speaking, constitutionally protected actors require that this
Court reject any suggestion that when it comes to parental rights, children are
so much chattel. See ante, at 5-6 (opinion of O’CONNOR, J.) (describing States’
recognition of “an independent third-party interest in a child”). The
constitutional protection against arbitrary state interference with parental
rights should not be extended to prevent the States from protecting children
against the arbitrary exercise of parental authority that is not in fact
motivated by an interest in the welfare of the child. n9
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n8 This Court has on numerous occasions acknowledged that children are in many circumstances possessed of constitutionally protected rights and liberties. See Parham v. J. R., 442 U.S. 584, 600, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (liberty interest in avoiding involuntary confinement); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976) (“Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights”); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506-507, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) (First Amendment right to political speech); In re Gault, 387 U.S. 1, 13, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967) (due process rights in criminal proceedings).
n9 Cf., e.g., Wisconsin v. Yoder, 406 U.S. 205, 241-246, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (Douglas, J., dissenting) (“While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today . . . . It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny.”). The majority’s disagreement with Justice Douglas in that case turned not on any contrary view of children’s interest in their own education, but on the impact of the Free Exercise Clause of the First Amendment on its analysis of school-related decisions by the Amish community.
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This is not, of course, to suggest that a child’s liberty interest in maintaining contact with a particular individual is to be treated invariably as on a par with that child’s parents’ contrary interests. Because our substantive due process case law includes a strong presumption that a parent will act [*90] in the best interest of her child, it would be necessary, were the state appellate courts actually to confront a challenge to the statute as applied, to consider whether the trial court’s assessment of the “best interest of the child” incorporated that presumption. Neither would I decide whether the trial court applied Washington’s statute in a constitutional way in this case, although, as I have explained, n. 3, supra, I think the outcome of this determination is far from clear. For the purpose of a facial challenge like this, I think it safe to assume that trial judges usually give great deference to parents’ wishes, and I am not persuaded otherwise here.
But presumptions notwithstanding, we should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a “person” other than a parent. The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily. It is indisputably the business of the States, rather than a federal court employing a national standard, to assess in [***72] the first instance the relative importance of the conflicting interests that give rise to disputes such as this. n10 Far from guaranteeing that [*91] parents’ interests will be trammeled in the sweep of cases arising under the statute, the Washington 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, between the parent’s protected interests and the child’s. [**2074] It seems clear to me that the Due Process Clause of the Fourteenth Amendment leaves room for States to consider the impact on a child of possibly arbitrary parental decisions that neither serve nor are motivated by the best interests of the child.

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n10 See Palmore v. Sidoti, 466 U.S. 429, 431, 80 L. Ed. 2d 421, 104 S. Ct.
1879 (1984) (“The judgment of a state court determining or reviewing a child custody decision is not ordinarily a likely candidate for review by this Court”); cf. Collins v. City of Harker Heights, 503 U.S. 115, 128, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992) (matters involving competing and multifaceted social and policy decisions best left to local decisionmaking); Regents of the University of Michigan v. Ewing, 474 U.S. 214, 226, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985) (emphasizing “our reluctance to trench on the prerogatives of state and local educational institutions” as federal courts are ill-suited to “evaluate the substance of the multitude of academic decisions that are made daily by” experts in the field evaluating cumulative information”). That caution is never more essential than in the realm of family and intimate relations. In part, this principle is based on long-established, if somewhat arbitrary, tradition in allocating responsibility for resolving disputes of various kinds in our federal system. Ankenbrandt v. Richards, 504 U.S. 689, 119 L. Ed. 2d 468, 112 S. Ct. 2206 (1992). But the instinct against over-regularizing decisions about personal relations is sustained on firmer ground than mere tradition. It flows in equal part from the premise that people and their intimate associations are complex and particular, and imposing a rigid template upon them all risks severing bonds our society would do well to preserve.

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Accordingly, I respectfully dissent.
JUSTICE SCALIA, dissenting.
In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all Men . . . are endowed by their Creator.” And in my view that right is also among the “other [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative [*92] democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the state has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.
Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their [***73] children n1 — two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct. 571 (1925); Wisconsin v. Yoder, 406 U.S. 205, 232-233, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 (1937) (overruling Adkins v. Children’s Hospital of D. C., 261 U.S. 525, 67 L. Ed. 785, 43 S. Ct. 394 (1923)). The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.

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n1 Whether parental rights constitute a “liberty” interest for purposes of procedural due process is a somewhat different question not implicated here. Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), purports to rest in part upon that proposition, see 405 U.S. at 651-652; but see Michael H. v. Gerald D., 491 U.S. 110, 120-121, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989) (plurality opinion), though the holding is independently supported on equal protection grounds, see Stanley, supra, at 658.

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Judicial vindication of “parental rights” under a Constitution that does not
even mention them requires (as JUSTICE KENNEDY’s opinion rightly points out) not
only a judicially crafted definition of parents, but also—unless, as no one
believes, [*93] the parental rights are to be absolute—judicially approved
assessments of “harm to the child” and judicially defined gradations of other
persons (grandparents, extended family, adoptive family in an adoption later
found to be invalid, long-term guardians, etc.) who may have some claim against
the wishes of the parents. If we [**2075] embrace this unenumerated right, I
think it obvious—whether we affirm or reverse the judgment here, or remand as
JUSTICE STEVENS or JUSTICE KENNEDY would do—that we will be ushering in a new
regime of judicially prescribed, and federally prescribed, family law. I have no
reason to believe that federal judges will be better at this than state
legislatures; and state legislatures have the great advantages of doing harm in
a more circumscribed area, of being able to correct their mistakes in a flash,
and of being removable by the people. n2
– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
n2 I note that respondent is asserting only, on her own behalf, a substantive due process right to direct the upbringing of her own children, and is not asserting, on behalf of her children, their First Amendment rights of association or free exercise. I therefore do not have occasion to consider whether, and under what circumstances, the parent could assert the latter enumerated rights.

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For these reasons, I would reverse the judgment below.
JUSTICE KENNEDY, dissenting.
The Supreme Court of Washington has determined that petitioners Jenifer and Gary Troxel have standing under state law to seek court-ordered visitation with their grandchildren, notwithstanding the objections of the children’s parent, respondent Tommie Granville. The statute relied upon provides:
“Any person may petition the court for visitation rights at any time including, but not limited to, custody [***74] proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Wash. Rev. Code § 26.10.160(3) (1994). [*94]
After acknowledging this statutory right to sue for visitation, the State Supreme Court invalidated the statute as violative of the United States Constitution, because it interfered with a parent’s right to raise his or her child free from unwarranted interference. In re Smith, 137 Wn.2d 1, 969 P.2d 21 (1998). Although parts of the court’s decision may be open to differing interpretations, it seems to be agreed that the court invalidated the statute on its face, ruling it a nullity.
The first flaw the State Supreme Court found in the statute is that it allows an award of visitation to a non-parent without a finding that harm to the child would result if visitation were withheld; and the second is that the statute allows any person to seek visitation at any time. In my view the first theory is too broad to be correct, as it appears to contemplate that the best interests of the child standard may not be applied in any visitation case. I acknowledge the distinct possibility that visitation cases may arise where, considering the absence of other protection for the parent under state laws and procedures, the best interests of the child standard would give insufficient protection to the parent’s constitutional right to raise the child without undue intervention by the state; but it is quite a different matter to say, as I understand the Supreme Court of Washington to have said, that a harm to the child standard is required in every instance.
Given the error I see in the State Supreme Court’s central conclusion that the best interests of the child standard is never appropriate in third-party visitation cases, that court should have the first opportunity to reconsider this case. I would remand the case to the state court for further proceedings. If it then found the statute has been applied in an unconstitutional manner because the best interests of the child standard gives insufficient protection to a parent under the circumstances of this case, or if it again declared the statute a nullity because the statute seems to allow any person [*95] at all to seek visitation at any time, the decision would present other issues which may or may not warrant further review in this Court. These include not only the protection the [**2076] Constitution gives parents against state-ordered visitation but also the extent to which federal rules for facial challenges to statutes control in state courts. These matters, however, should await some further case. The judgment now under review should be vacated and remanded on the sole ground that the harm ruling that was so central to the Supreme Court of Washington’s decision was error, given its broad formulation.
Turning to the question whether harm to the child must be the controlling standard in every visitation proceeding, there is a beginning point that commands general, perhaps unanimous, agreement in our separate opinions: As our case law has developed, the custodial parent has a constitutional right to determine, without undue interference by the state, how best to raise, nurture, and educate the child. The parental right stems from the liberty protected by the Due Process Clause of the Fourteenth Amendment. See, e.g., Meyer [***75] v. Nebraska, 262 U.S. 390, 399, 401, 67 L. Ed. 1042, 43 S. Ct. 625 (1923);
Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 69 L. Ed. 1070, 45 S. Ct.
571 (1925); Prince v. Massachusetts, 321 U.S. 158, 166, 88 L. Ed. 645, 64 S. Ct.
438 (1944); Stanley v. Illinois, 405 U.S. 645, 651-652, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972); Wisconsin v. Yoder, 406 U.S. 205, 232-233, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972); Santosky v. Kramer, 455 U.S. 745, 753-754, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion. Their formulation and subsequent interpretation have been quite different, of course; and they long have been interpreted to have found in Fourteenth Amendment concepts of liberty an independent right of the parent in the “custody, care and nurture of the child,” free from state intervention. Prince, supra, at 166. The principle exists, then, in broad formulation; yet courts must use considerable restraint, including careful adherence to the incremental instruction [*96] given by the precise facts of particular cases, as they seek to give further and more precise definition to the right.
The State Supreme Court sought to give content to the parent’s right by announcing a categorical rule that third parties who seek visitation must always prove the denial of visitation would harm the child. After reviewing some of the relevant precedents, the Supreme Court of Washington concluded “’the requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.’” In re Smith, 137 Wn.2d at 19-20, 969 P.2d at 30 (quoting Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993)). For that reason, “short of preventing harm to the child,” the court considered the best interests of the child to be “insufficient to serve as a compelling state interest overruling a parent’s fundamental rights.” In re Smith, supra, at 20, 969 P.2d at 30.
While it might be argued as an abstract matter that in some sense the child is always harmed if his or her best interests are not considered, the law of domestic relations, as it has evolved to this point, treats as distinct the two standards, one harm to the child and the other the best interests of the child. The judgment of the Supreme Court of Washington rests on that assumption, and I, too, shall assume that there are real and consequential differences between the two standards.
On the question whether one standard must always take precedence over the other in order to protect the right of the parent or parents, “our Nation’s history, legal traditions, and practices” do not give us clear or definitive answers. Washington v. Glucksberg, 521 U.S. 702, 721, 138 L. Ed. 2d 772, 117 S. Ct. 2258 (1997). The consensus among courts and commentators is that at least through the 19th century there was no legal right of visitation; court-ordered visitation appears to be a 20th-century phenomenon. [**2077] See, e.g., 1 D. Kramer, Legal Rights of Children 124, 136 (2d ed. 1994); 2 J. Atkinson, Modern [*97] Child Custody Practice § 8.10 (1986). A case often cited as one of the earliest visitation decisions, Succession of Reiss, 46 La. Ann. 347, 353, 15 So. 151, 152 (1894), explained that “the obligation ordinarily to visit grandparents is moral and not legal” [***76] — a conclusion which appears consistent with that of American common law jurisdictions of the time. Early 20th-century exceptions did occur, often in cases where a relative had acted in a parental capacity, or where one of a child’s parents had died. See Douglass v. Merriman, 163 S.C. 210, 161 S.E. 452 (1931) (maternal grandparent awarded visitation with child when custody was awarded to father; mother had died); Solomon v. Solomon, 319 Ill. App. 618, 49 N.E.2d 807 (1943) (paternal grandparents could be given visitation with child in custody of his mother when their son was stationed abroad; case remanded for fitness hearing); Consaul v. Consaul, 63 N.Y.S.2d 688 (Sup. Ct. Jefferson Cty. 1946) (paternal grandparents awarded visitation with child in custody of his mother; father had become incompetent). As a general matter, however, contemporary state-court decisions acknowledge that “historically, grandparents had no legal right of visitation,” Campbell v. Campbell, 896 P.2d 635, 642, n. 15 (Utah App. 1995), and it is safe to assume other third parties would have fared no better in court.
To say that third parties have had no historical right to petition for visitation does not necessarily imply, as the Supreme Court of Washington concluded, that a parent has a constitutional right to prevent visitation in all cases not involving harm. True, this Court has acknowledged that States have the authority to intervene to prevent harm to children, see, e.g., Prince, 321 U.S. at 168-169; Yoder, 406 U.S. at 233-234, but that is not the same as saying that a heightened harm to the child standard must be satisfied in every case in which a third party seeks a visitation order. It is also true that the law’s traditional presumption has been “that natural bonds of affection lead parents to act in the [*98] best interests of their children,” Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979); and “simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state,” 442 U.S. at 603. The State Supreme Court’s conclusion that the Constitution forbids the application of the best interests of the child standard in any visitation proceeding, however, appears to rest upon assumptions the Constitution does not require.
My principal concern is that the holding seems to proceed from the assumption that the parent or parents who resist visitation have always been the child’s primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child. That idea, in turn, appears influenced by the concept that the conventional nuclear family ought to establish the visitation standard for every domestic relations case. As we all know, this is simply not the structure or prevailing condition in many households. See, e.g., Moore v. East Cleveland, 431 U.S. 494, 52 L. Ed. 2d 531, 97 S. Ct. 1932 (1977). For many boys and girls a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood. This may be so whether their childhood has been marked by tragedy or filled with considerable happiness and fulfillment.
Cases are sure to arise—perhaps a [***77] substantial number of cases— in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto. See Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989) (putative natural father not entitled to rebut state law presumption that child born in a [**2078] marriage is a child of the marriage); Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (best interests standard sufficient in adoption proceeding to protect interests of natural father who had not legitimated the child); see also Lehr v. Robertson, 463 U.S. 248, 261, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983) (“’The importance of the familial relationship, to the individuals involved [*99] and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promoting a way of life’ through the instruction of children . . . as well as from the fact of blood relationship.’” (quoting Smith v. Organization of Foster Families For Equality & Reform, 431 U.S. 816, 844, 53 L. Ed. 2d 14, 97 S. Ct. 2094 (1977) (in turn quoting Yoder, 406 U.S. at 231-233))). Some pre-existing relationships, then, serve to identify persons who have a strong attachment to the child with the concomitant motivation to act in a responsible way to ensure the child’s welfare. As the State Supreme Court was correct to acknowledge, those relationships can be so enduring that “in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child,” In re Smith, 137 Wn.2d at 20, 969 P.2d at 30; and harm to the adult may also ensue. In the design and elaboration of their visitation laws, States may be entitled to consider that certain relationships are such that to avoid the risk of harm, a best interests standard can be employed by their domestic relations courts in some circumstances.
Indeed, contemporary practice should give us some pause before rejecting the best interests of the child standard in all third-party visitation cases, as the Washington court has done. The standard has been recognized for many years as a basic tool of domestic relations law in visitation proceedings. Since 1965 all 50 States have enacted a third-party visitation statute of some sort. See ante, at 15, n. (plurality opinion). Each of these statutes, save one, permits a court order to issue in certain cases if visitation is found to be in the best interests of the child. While it is unnecessary for us to consider the constitutionality of any particular provision in the case now before us, it can be noted that the statutes also include a variety of methods for limiting parents’ exposure to third-party visitation petitions and for ensuring parental decisions are given respect. Many States [*100] limit the identity of permissible petitioners by restricting visitation petitions to grandparents, or by requiring petitioners to show a substantial relationship with a child, or both. See, e.g., Kan. Stat. Ann. § 38-129 (1993 and Supp. 1998) (grandparent visitation authorized under certain circumstances if a substantial relationship exists); N. C. Gen. Stat. §§ 50-13.2, 50-13. 2 A. 50-13.5 (1999) (same); Iowa Code § 598.35 (Supp. 1999) (same; visitation also authorized for great-grandparents); Wis. Stat. § 767.245 [***78] (Supp. 1999) (visitation authorized under certain circumstances for “a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child”). The statutes vary in other respects—for instance, some permit visitation petitions when there has been a change in circumstances such as divorce or death of a parent, see, e.g., N. H. Rev. Stat. Ann. § 458:17-d (1992), and some apply a presumption that parental decisions should control, see, e.g., Cal. Fam. Code Ann. §§ 3104(e)-(f) (West 1994); R. I. Gen. Laws § 15-5-24.3(a)(2)(v) (Supp. 1999). Georgia’s is the sole State Legislature to have adopted a general harm to the child standard, see Ga. Code Ann. § 19-7-3(c) (1999), and it did so only after the Georgia Supreme Court held the State’s prior visitation statute invalid under the Federal and Georgia Constitutions, see Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, cert. denied, 516 U.S. 942, 133 L. Ed. 2d 301, 116 S. Ct. 377 (1995). [**2079] [***LEdHR2B] [2B] In light of the inconclusive historical record and case law, as well as the almost universal adoption of the best interests standard for visitation disputes, I would be hard pressed to conclude the right to be free of such review in all cases is itself “’implicit in the concept of ordered liberty.’” Glucksberg, 521 U.S. at 721 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 82 L. Ed. 288, 58 S. Ct. 149 (1937)). In my view, it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. In short, a fit parent’s right vis-a-vis a complete [*101] stranger is one thing; her right vis-a-vis another parent or a de facto parent may be another. The protection the Constitution requires, then, must be elaborated with care, using the discipline and instruction of the case law system. We must keep in mind that family courts in the 50 States confront these factual variations each day, and are best situated to consider the unpredictable, yet inevitable, issues that arise. Cf. Ankenbrandt v. Richards, 504 U.S. 689, 703-704, 119 L. Ed. 2d 468, 112 S. Ct.
2206 (1992).
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. The best interests of the child standard has at times been criticized as indeterminate, leading to unpredictable results. See, e.g., American Law Institute, Principles of the Law of Family Dissolution 2, and n. 2 (Tentative Draft No. 3, Mar. 20, 1998). 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. Our system must confront more often the reality that litigation can itself be so disruptive that constitutional protection may be required; and I do not discount the possibility that in some instances the best interests of the child standard may provide insufficient protection to the parent-child relationship. We owe it to the Nation’s domestic relations legal structure, however, to proceed with caution.
It should suffice in this case to reverse the holding of the State Supreme Court that the application of [***79] the best interests of the child standard is always unconstitutional in third-party visitation cases. Whether, under the circumstances of this case, the order requiring visitation over the objection of this fit parent violated the Constitution ought to be reserved for further proceedings. Because of its sweeping ruling requiring [*102] the harm to the child standard, the Supreme Court of Washington did not have the occasion to address the specific visitation order the Troxels obtained. More specific guidance should await a case in which a State’s highest court has considered all of the facts in the course of elaborating the protection afforded to parents by the laws of the State and by the Constitution itself. Furthermore, in my view, we need not address whether, under the correct constitutional standards, the Washington statute can be invalidated on its face. This question, too, ought to be addressed by the state court in the first instance.
In my view the judgment under review should be vacated and the case remanded for further proceedings.
REFERENCES: Return To Full Text Opinion
Go to Supreme Court Brief(s)
Go to Oral Argument Transcript
16A Am Jur 2d, Constitutional Law 575
USCS, Constitution, Amendment 14
L Ed Digest, Constitutional Law 528.5
L Ed Index, Children and Minors; Visits and Visitation
Annotation References:
Supreme Court’s views as to concept of “liberty” under due process clauses of Fifth and Fourteenth Amendments. 47 L Ed 2d 975.