Does Troxel vs. Granville impact joint physical custody? 6 Answers as of April 18, 2011

Do all states have a presumption of joint physical custody based upon a Supreme Court ruling in 2000? If so, could you tell me what ruling that was? I was told it was Troxel vs. Granville; however, I do not see how that ruling set a standard for all states to enact a presumption of joint physical custody and move away from the "Best Interest of the Child" Standard, can you please explain this to me?

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Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
The U.S. Supreme Court case to which you refer is indeed Troxel v. Granville, 530 U.S. 57 (2000). It is ironic that your question just arrived, since I am in a mediation right now with a fact issue that required me to investigate Troxel and it's progeny to determine it's application with the facts I am dealing with in this case. Accordingly, your timing is excellent. First, Troxel did not dismiss or affect the "Best Interest of the Child Rule" rather Troxel addressed what rights a grandparent has to maintain a relationship with a grandchild. As part of that discussion, the Supreme Court did recognize that it is presumed that continued contact with BOTH PARENTS is presumed to be in the "Best Interest of the Child". Stated a little differently, the Supreme Court held that there is no presumption that it is in the best interest of the child to spend time with grandma and grandpa because such a presumption would not protect the parent's fundamental constitutional right to make decisions concerning the rearing of their own children. The crux, I believe, of your question is the definition of "joint custody". I have to explain this on a routine basis - in Texas, we do not have "joint custody" as most people think of it. We have joint managing conservatorship. Conservatorship is not custody. Conservatorship is the right to make decisions. Custody as the lay person thinks of it is possession. So, for the purposes of this discussion, separate physical possession and power to make decisions - the law in Texas does. Accordingly, there is in Texas, a presumption that joint decision power (both parents can attend doctor's appointments, school functions, consult with the teachers, etc.) would be in the best interest of the child. Continued contact with both parents is also presumed to be in the best interest of the child. These presumptions can be overcome by showing the other parent does not act in the child's best interest and "I don't want him/her to have power to make decisions" or "I don't want him/her to see my child" is not evidence. Your feelings on the matter are important to you and your attorney, but the law does not care. The law deals with facts, not feelings. That said, many times your feelings are based on facts. For example, I had a client that did not want her ex-husband to see the kids, she had very strong feelings on the matter and her feelings were based on the fact that her ex had beat her so badly that she spent several days in a hospital right before she left him. The law may not have recognized her feelings/fear as evidence but her testimony of what caused this fear was very convincing. Possession in Texas is presumed to be divided into Primary and Possessory. The Primary Conservator is the parent with the right to determine where the children live (his/her house is where the children live for school purposes, records purposes, etc. ) it is the main home for the child. The Possessory Conservator has the right to possession and access to the children on a set schedule - generally the 1st, 3rd, and 5th weekends of the month, 2 hours on one week night each week, half of the holidays and 30 days in the summer. The Primary Conservator has possession at all other times. This said, parties can arrange, and Court's are getting a little more flexible about awarding what we routinely call "Split Custody". Split Custody is what most people think of as "joint custody" - half of the time with Mom, half with Dad. However, this remains the exception, not the rule.
Answer Applies to: Texas
Replied: 4/18/2011
John E. Kirchner, Attorney at Law
John E. Kirchner, Attorney at Law | John Kirchner
Troxel has virtually nothing to do with the concept of joint physical custody, nor with joint legal custody for that matter. Based upon multiple views by the Supreme Court Justices, the only generally accepted consensus about Troxel is that a parent has a constitutionally sanctioned fundamental liberty interest in being a parent and, when everything else is equal, that interest trumps the interest of all nonparents. When the dispute concerning custody of a child is between two parents, the constitutional interests are equal, so decisions must be based on other factors. Almost universally, those other factors relate to the best interest of the child standard. So, the only impact Troxel has on the best interest standard is, potentially, in the area of disputes between parents and nonparents where the parent's constitutional interest outweighs best interest of the child when everything else is equal something that is rarely true.
Answer Applies to: Colorado
Replied: 4/15/2011
Glenn E. Tanner
Glenn E. Tanner | Glenn E. Tanner
Troxel v. Granville was a rare US Supreme Court decision regarding family law. It concerned and impacted grandparent visitation rights vs. the rights of the actual parent(s). It would take a more creative legal mind than me to understand how it impacts parenting plan decisions in any way between parents in Washington. Good luck.
Answer Applies to: Washington
Replied: 4/14/2011
Warner Center Law Offices of Donald F. Conviser
Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
No. Troxel vs. Granville was a U.S. Supreme Court decision relating to grandparent visitation rights, and it does not impact joint physical custody - it affirmed a Washington Supreme Court holding 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. The deceased father's parents sought, in that case, visitation rights with their grandchildren.The U.S. Supreme Court held that a Washington statute which allowed the grandparents to seek visitation, irrespective of whether a custody action was pending, unconstitutionally infringes on the fundamental right of parents to make decisions concerning the care, custody and control of their children.
Answer Applies to: California
Replied: 4/15/2011
Beaulier Law Office
Beaulier Law Office | Maury Beaulier
Although it affirms that parenting is a fundamental right, the case was very narrowly tailored. It struck to a statute in Washington State that broadly allowed Grandparent's rights over the objection of living parents. To do so, the court reasoned, required a strict scrutiny test.
Answer Applies to: Minnesota
Replied: 4/14/2011
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