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Children’s time: the real issue in grandparents’ rights case

by Dahlia Lithwick
FindLaw Contributor
Special to CNN Interactive

June 23, 2000
Web posted at: 12:20 p.m. EST (1620 GMT)

(FindLaw) — Much of the commentary about
Troxel v. Granville — the so-called grandparents’
rights case decided in the Supreme Court in June
— has focused on what the modern “family”
means, both practically and as a matter of
constitutional law. This question has become more
difficult as non-traditional households boom, and
two-parent-heterosexual-stain-removing-mom
households decline.

In the 1950s, grandparents who sought visitation
would have been looked upon as odd — perhaps
even a bit tetched. Now, however, it’s common
for non-parents to seek visitation and even
custody. (Indeed, under the first lady’s theory,
even an entire village might have the right to
visitation.)

This sea change is partly due to the expansion of our definition of family. Which
is why the holding in Troxel — that grandparents cannot visit their grandchildren
over their mother’s objection — has had national resonance. But it’s not the only
reason. Troxel was not just about redefining family. It was also about our
society’s increasing obsession with time, and our lack of it. As time with children
becomes more rare and more precious, it’s no surprise that adults have started
battling over it – and taking their fights all the way the Supreme Court.

Splitting the baby’s time

At its heart, Troxel was a fight over a unique commodity: children’s time. The
precise amount of time at issue was 1,200 hours per year — the difference
between the amount of visitation the girls’ paternal grandparents sought, and the
amount their mother was willing to permit.

Before the Troxel girls’ father died, their grandparents had frequent visits. They
were exceedingly close to the girls. Afterwards, they wanted to continue the
pattern, with twice-monthly weekend visits and summer visits (the typical
non-custodial parent package Mr. Troxel might have received, had he lived).
However, the girls’ mother, now involved with another man, sought to limit the
grandparents’ visitation, instead, to one visit per month and participation in family
holidays.

Was the mother’s position unreasonable? Not necessarily, because splitting
children’s time is not as simple as it might initially seem. As family court judges
across the country take on this task, many have started to wonder whether the
physicists splitting the atom had an easier job.

First, because, ironically, splitting children’s time often means doubling it. After a
divorce, children often celebrate two birthdays and two Thanksgivings. They
may take on a double schedule of extracurricular activities: pottery class on
mom’s time, soccer on dad’s. Then, as parents swap weekends, kids often
suffer. Lulu misses every third swim meet; Benny gets turfed off the t-ball team
for missed practices. And often hours of a child’s time are consumed in transit
between two homes. No wonder so many children of divorce are constantly
exhausted.

Children’s time, parents’ rights

Parents — who are working longer hours with less vacation than ever before —
are exhausted, too. And when they have precious “quality time” with their
children, they don’t want to share it. For a contemporary working mother,
weekends and summer vacations are the only time she can see her kids — and
she may reasonably resent others’ attempts to encroach on that time. A 1950s
stay-at-home mom might have loved to dump the kids with grandma for a few
weekends, or even all of July; she had the whole rest of the year with them. The
Washington state trial court judge in Troxel — who hearkened back to fond
memories of visiting his own grandparents in awarding grandparental visitation
rights — may have had that kind of mom. But most parents today don’t see
enough of their kids to be able happily to part with them during summer
vacation. No wonder they fight to see them.

In his dissent in Troxel, Justice Stevens criticized the majority for treating the
grandchildren as “chattel.” His metaphor aptly conveys the way custody and
visitation fights seem to go on above children’s heads, pushing and pulling at
their bodies, without true consideration of their interests — as if they were
merely calves to be moved from pasture to pasture. But in important respects,
the metaphor is wrong.

The “chattel” metaphor suggests that relatives seeking visitation seek property
rights over the children’s actual bodies. But Troxel was not a Solomonic fight
over whether to split a child’s body in two. It was a fight over children’s time or,
more subtly, about who has the right to allocate that time.

Recall that, even before the grandparents’ petition was filed in Troxel, the girls’
mother was willing to allow them to visit with the girls — just not as frequently
as they would have liked. When she won the case, she didn’t win the right to a
ration of child; she won the right to decide who her children saw, and when.
That right, according to the majority, is not necessarily a right to her children,
but to their “care and control.” And perhaps “care and control” means little more
than “decisions about their time.”

For parents not to have such a right in contemporary society would only cause
children more misery. Until a child is old enough to do it for himself, a child
requires a custodian who will monitor the ebb and flow of his hours and days.
Otherwise, they will snap, and not under the pressure of love, but rather, under
the pressure of time.

Dahlia Lithwick covers the Supreme Court for “Slate,” and is a senior editor at Writ,
an online publication of FindLaw. Dahlia Lithwick is also a FindLaw contributor.

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