OTHER'S (GRANDPARENTS, SIBLINGS, ETC...) RIGHT TO VISITATION OR CUSTODY

OTHERS' RIGHT TO CUSTODY.  The general rule is that third parties do not have standing to sue for custody except:  1.  The child is in the custody of the third party.  or 2.  A statute provides for third party custody.  In making a custody, the court is going to look at what is in the best interest of the child.  The court generally will not interfere with an intact family.  In Arkansas, if the child has been continuously living with a grandparent for 1 year (6 months if child is under 12 months old), grandparent was primary caretaker and financial supporter, and an action was initiated within 1 year of the continuous custody; then a grandparent may pursue custody.  Parties may be able to become guardians.  See also FAMILY LAW SECTION on GUARDIANSHIPS.

OTHERS' RIGHT TO VISITATION.  The general rule is that third parties do not have standing to sue for visitation except where a statute provides for third party visitation.  In making a visitation decision, the court is going to look at what is in the best interest of the child.  The court generally will not interfere with an intact family.  However, Arkansas will allow interference with an intact family for sibling visitation.  Grandparent visitation rights have been largely curtailed recently by the United States Supreme Court and the Arkansas Supreme Court.  See the two cases below for more detail.  Under the Constitution, the Supreme Court found that so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.  Grandparent visitation rights have been found in Arkansas to be unconstitutionally applied when against a fit parent.  However, grandparents do have visitation rights when the child or children are in the custody of someone other than a parent.  The law is unclear as far as how these recent supreme court decisions may affect sibling visitation.

ARKANSAS CODE OF 1987 ANNOTATED
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 13. CHILD CUSTODY AND VISITATION
SUBCHAPTER 1. GENERAL PROVISIONS

Arkansas Code Annotated Section 9-13-101:  Award of Custody.

(a)(1)(A)  In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent, but solely in accordance with the welfare and best interest of the child. 
         (B)  When a court order holds that it is in the best interest of a child to award custody to a grandparent, the award of custody shall be made without regard to the sex of the grandparent. 
    (2)(A)  Upon petition by a grandparent who meets the requirements of subsection (b) of this section and subdivision (a)(1) of this section, a court shall grant the grandparent a right to intervene pursuant to Rule 24(a) of the Arkansas Rules of Civil Procedure. 
        (B)(i)  A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or younger when: 
                  (a)  A grandchild resides with this grandparent for at least six (6) continuous months prior to its first birthday; 
                  (b)  The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and 
                  (c)  The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated. 
             (ii)  A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or older when: 
                  (a)  A grandchild resides with this grandparent for at least one (1) continuous year regardless of age; 
                  (b)  The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and 
                  (c)  The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated. 
             (iii)  Notice to a grandparent shall be given by the moving party. 
    (3)  For purposes of this section, "grandparent" does not mean a parent of a putative father of a child. 
    (4)(A)  The party that initiates a child custody proceeding shall notify the court of the name and address of any grandparent who is entitled to notice under the provisions of subdivision (a)(1) of this section. 
        (B)  The notice shall be in accordance with § 16-55-114. 
(b)(1)  When in the best interests of a child, custody shall be awarded in such a way so as to assure the frequent and continuing contact of the child with both parents. 
    (2)  If a grandparent meets the requirements of subdivisions (a)(1) and (2)(B) of this section and is a party to the proceedings, the court may consider the continuing contact between the child and a grandparent who is a party, and the court may consider orders to assure the continuing contact between the grandparent and the child. 
    (3)  To this effect, in making an order for custody, the court may consider, among other facts, which party is more likely to allow the child or children frequent and continuing contact with the noncustodial parent and the noncustodial grandparent who meets the requirements of subdivisions (a)(1) and (2)(B) of this section. 
(c)(1)  Where a party to an action concerning custody of, or a right to visitation with, a child has committed an act of domestic violence against the party making the allegation or a family or household member of either party and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, whether or not the child was physically injured or personally witnessed the abuse, together with such facts and circumstances as the court deems relevant in making a direction pursuant to this section. 
    (2)  There shall be a rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent in cases where there is a finding, by a preponderance of the evidence, that the parent has engaged in a pattern of domestic abuse. 
(d)(1)  The Director of the Administrative Office of the Courts is authorized to establish an attorney ad litem program to represent children in chancery court cases where custody is an issue. 
    (2)  When a chancellor determines that the appointment of an attorney ad litem would facilitate a case in which custody is an issue and further protect the rights of the child, the chancellor may appoint a private attorney to represent the child. 
    (3)(A)  The Arkansas Supreme Court, with advice of the chancellors, shall adopt standards of practice and qualifications for service for attorneys who seek to be appointed to provide legal representation for children in custody cases. 
        (B)(i)  In extraordinary cases, the chancery court may appoint an attorney ad litem who does not meet the required standards and qualifications. 
             (ii)  The attorney may not be appointed in subsequent cases until he has made efforts to meet the standards and qualifications. 
    (4)  When attorneys are appointed pursuant to subdivision (d)(2) of this section, the fees for services and reimbursable expenses shall be paid from funds appropriated for that purpose to the Administrative Office of the Courts. 
    (5)(A)  When a chancellor orders the payment of funds for the fees and expenses authorized by this section, the chancellor shall transmit a copy of the order to the Administrative Office of the Courts, which is authorized to pay the funds. 
        (B)  The court may also require the parties to pay all or a portion of the expenses, depending on the ability of the parties to pay. 
    (6)  The Administrative Office of the Courts shall establish guidelines to provide a maximum amount of expenses and fees per hour and per case which will be paid pursuant to this section. 
    (7)  In order to insure that each judicial district will have an appropriate amount of funds to utilize for ad litem representation in custody cases, the funds appropriated shall be apportioned based upon a formula developed by the Administrative Office of the Courts and approved by the Arkansas Judicial Council and the Rules and Regulations Subcommittee of the Arkansas Legislative Council. 
    (8)(A)  The Administrative Office of the Courts shall develop a statistical survey that each attorney who serves as an ad litem shall complete upon the conclusion of the case. 
        (B)  Statistics shall include the ages of children served, whether the custody issue arises at a divorce or post-divorce stage, whether psychological services were ordered, and any other relevant information.

Arkansas Code Annotated Section 9-13-102:  Visitation Rights of Brothers and Sisters.

The chancery courts of this state, upon petition from any person who is a brother or sister, regardless of the degree of blood relationship, or, if the person is a minor, upon petition by a parent, guardian, or next friend in behalf of the minor may grant reasonable visitation rights to the petitioner so as to allow the petitioner the right to visit any brother or sister, regardless of the degree of blood relationship, whose parents have denied such access. The chancery courts may issue any further order which may be necessary to enforce the visitation rights.

Arkansas Code Annotated Section 9-13-103:  Visitation Rights of Grandparents.

(a)  (1)  Upon petition by a person properly before it, a chancery court of this state may grant grandparents and great-grandparents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if: 
            (A)  The marital relationship between the parents of the child has been severed by death, divorce, or legal separation; or 
            (B)  The child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or 
            (C)  The child is illegitimate, and the person is a maternal grandparent of the illegitimate child; or 
            (D)  The child is illegitimate, and the person is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction. 
      (2)  The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor. 
      (3)  (A)  An order denying visitation rights to grandparents and great-grandparents shall be in writing and shall state the reasons for denial. 
            (B)  An order denying visitation rights is a final order for purposes of appeal. 
(b)  If the court denies the petition requesting grandparent visitation rights and determines that the petition for grandparent visitation rights is not well-founded, was filed with malicious intent or purpose, or is not in the best interest and welfare of the child, the court may, upon motion of the respondent, order the petitioner to pay reasonable attorney's fees and court costs to the attorney of the respondent, after taking into consideration the financial ability of the petitioner and the circumstances involved. 
(c)  The provisions of subsections (a) and (b) of this section shall only be applicable in situations: 
      (1)  In which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation; or 
      (2)  In which the child is in the custody or under the guardianship of a person other than one (1) or both of his natural or adoptive parents; or 
      (3)  If the child is illegitimate.

 LINDER v. LINDER

348 Ark. 322

72 S.W.3d 841

(Ark. 04/25/2002)

LEA ANN LINDER, CAROLYN GREENE, AND CLETA JOHNSON, APPELLANTS,

Vs.

BILL LINDER AND MILDRED SIMS, APPELLEES,

 [7]      1. Appeal & error — law-of-case doctrine — serves to effectuate efficiency & finality in judicial process. — The doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal; the doctrine serves to effectuate efficiency and finality in the judicial process; it provides that a decision of an appellate court establishes the law of the case for trial upon remand and for the appellate court itself upon subsequent review; on the second appeal, the decision of the first appeal becomes the law of the case and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented.

[8]      2. Appeal & error — court's previous opinion becomes law-of-case — mere filing of notice of appeal does not. — It is true that under the doctrine of law of the case, the supreme court does not address in a second appeal issues that could have been raised in the first appeal, but were not; however, it is equally clear that it is the supreme court's opinion in a prior appeal that becomes law of the case, not the mere filing of a notice of appeal.
 
[9]      3. Appeal & error — filing of notice of appeal insufficient for application of doctrine — law-of-case doctrine inapplicable. — Where no decision by an appellate court in this

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 state existed for this case, the appellees' motion to dismiss due to law of the case had no merit.
 
[10]     4. Judgment — res judicata — purpose & applicability. — The doctrine of res judicata bars relitigation of claims that were actually litigated in the first suit as well as those that could have been litigated; thus, where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies; the policy of the doctrine is to prevent parties from relitigating issues or raising new issues when they have already been given a fair trial.
 
[11]     5. Judgment — res judicata — modified application to child custody matters. — When the matter is a custody issue, the supreme court takes a more flexible approach to res judicata, i.e., the court recognizes that custody orders are subject to modification in order to respond to changed circumstances and the best interest of the child; the judgment of a chancery court in this state, awarding custody of an infant child to one parent, or to any other person, is a final judgment, from which an appeal lies, but it is not res judicata in the same or another court of this state involving custody of the same child, where it is shown that the conditions under which the former decree was made have changed and that the best interest of the child demands a reconsideration of the order or decree.

[12]     6. Judgment — res judicata — inapplicable. — In the case at hand, what had been involved since 1998 was the paternal grandfather's petition for visitation and, since 1999, the custody of the minor child; the constitutionality of the Arkansas Grandparental Visitation Act (GPVA) was not an issue in the litigation that preceded the September 2, 1998 order; indeed, it was not raised until the paternal grandmother's petition in 1999, and Troxel v. Granville, 530 U.S. 57 (2000), which has become the seminal case on grandparent visitation laws, was not handed down by the United States Supreme Court until 2000; res judicata simply did not govern this situation.

[13]     7. Motions — motion to dismiss & strike — denied. — Appellees' motion to dismiss the 1998 notice of appeal and to strike portions of the appellant's brief, which motion was based on the doctrines of law of the case and res judicata, both of which were found to be inapplicable, was dismissed.

[14]     8. Constitutional law — Due Process Clause — substantive component. — The Fourteenth Amendment provides in relevant part that no state shall deprive any person of life, liberty, or

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 property, without due process of law; this language has been interpreted over the years to have both a procedural and substantive component; the substantive component of the Due Process Clause protects those fundamental rights and liberties that are, objectively, deeply rooted in our nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.

[15]     9. Constitutional law — substantive component of Due Process Clause — liberty right of parent to have & raise children. — One of the substantive components that has emerged from the Fourteenth Amendment's guarantee of due process of law is the liberty right of a parent to have and raise children.

[16]     10. Constitutional law — U.S. Supreme Court's approach to governmental intrusions on parent-child relationship — liberty right of parent to have & raise children long recognized. — In Troxel v. Granville, 530 U.S. 57 (2000), a plurality decision, the U.S. Supreme Court, in summarizing its approach to governmental intrusions on the parent-child relationship, stated that the interest of parents in the care, custody, and control of their children was perhaps the oldest of fundamental liberty interests recognized by the Court; the Court, in a long line of decisions, has recognized that the "liberty" protected by the Due Process Clause includes the right of parents to establish a home, to bring up their children, and to control their education; the Court has repeatedly confirmed the fundamental right of parents to make decisions concerning the care, custody, and control of their children, and that there is a constitutional dimension to the right of parents to direct the upbringing of their children without hindrance from the state; in light of the extensive precedent, the Court found 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.

[17]     11. Constitutional law — liberty right of parent over children — fit parent presumed to be acting in child's best interests. — A parent has a liberty interest in shaping a child's education; a parent also has a right to direct the care and upbringing of a child; accordingly, a fit parent is given a presumption that he or she is acting in a child's best interests; the parental rights protected by the Fourteenth Amendment do not spring from a bare biological connection to a child, but rather must be born of a relationship to a child demonstrated over time.

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[18]     12. Constitutional law — parental "fitness" determination — little guidance offered as to scope. — The only guidance offered by the Supreme Court in Troxel as to the scope of the parental "fitness" determination was the statement that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."

[19]     13. Constitutional law — statute in Troxel did not require court to accord parent's decision any presumption of validity — court's order was not founded on any special factors that might have justified State's interference with parent's fundamental right to make decisions concerning child rearing. — The grandparent visitation statute in Troxel contained no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever; instead, the statute placed the best-interest-of-the-child determination solely in the hands of the judge; if the judge disagreed with the parent's estimation of the child's best interests, the judge's view necessarily prevailed; thus, in practical effect, the court could disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision filed a visitation petition, based solely on the judge's determination of the child's best interests; the Supreme Court determined that the state court order, which found that any statute that allowed any person to petition for visitation under any circumstances was not justified by a compelling interest, was not founded on any special factors that might justify the State's interference with a parent's fundamental right to make decisions concerning the rearing of his or her children.

[20]     14. Constitutional law — impingement on parent's fundamental liberty right to raise children requires heightened review — parental unfitness is one "special factor" that might warrant state interference. — In Troxel, the plurality opinion noted that impingement on a parent's fundamental liberty right to raise children required heightened review and that one "special factor" that might warrant state interference was if the parent was declared unfit; the decision whether cultivation of bonds between grandparents and grandchildren would be beneficial is for the parent to make in the first if a fit parent's decision becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination; thus,

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 if a parent is unfit, then clearly under this approach, state intrusion into the relationship is warranted.
 
[21]     15. Constitutional law — statute infringed on parent's fundamental right to make child-rearing decisions — Troxel statute held unconstitutional. — Because the Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a better decision could be made, and neither the visitation statute in Troxel, which placed no limits on either the persons who could petition for visitation or the circumstances in which such a petition might be granted, nor the state court, required anything more, the Supreme Court held that the statute in issue, as applied in that case, was unconstitutional.

[22]     16. Constitutional law — Fourteenth Amendment — appellant had fundamental right to prohibit state intrusion on her parenting of child. — The supreme court, upon review of the applicable United States Supreme Court precedent, concluded that appellant, as a single parent, had a fundamental right under the Fourteenth Amendment in prohibiting state intrusion on her parenting of her minor child.

[23]     17. Constitutional law — examining constitutionality of state's intrusion upon right to parent — level of scrutiny to be applied. — Although the United States Supreme Court has not directly said that strict scrutiny is appropriate, most courts, when examining constitutionality of the state's intrusion upon the right to parent, have used the analysis of strict-scrutiny review.

[24]     18. Constitutional law — assessment of intrusions on other fundamental rights — strict-scrutiny standard used by U.S. Supreme Court. — Assessment of intrusions on other fundamental rights have traditionally been reviewed by the Supreme Court under the strict-scrutiny standard; the notable exceptions are cases in which the Court has balanced two equally compelling interests or fundamental rights; in these cases, the Court has rejected strict scrutiny and instead adopted a balancing test.

[25]     19. Constitutional law — only fundamental right at issue is parent's right to raise her child — strict-scrutiny standard applicable. — Where there was only one fundamental right at issue, the mother's right to raise her child, and one statutorily created procedure for a judicial award of grandparental visitation, which visitation had no historic roots in the common law but

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 rather was a legislated creature of the late twentieth century, the supreme court held that the strict-scrutiny standard should be applied.

[26]     20. Statutes — facial invalidation — when appropriate. — A facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied.

[27]     21. Statutes — GPVA could be constitutional in cases where there was no fundamental parental right at stake — facial invalidation of GPVA was inappropriate. — The supreme court concluded that the GPVA could be constitutionally applied in a narrow category of cases where it found that, as a prerequisite to filing a petition, the statute required that the sections allowing the circuit court to grant grandparent visitation rights and the section allowing for payment of fees and costs upon a finding that the petition for visitation rights was not well-founded, were only applicable in situations in which there was a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation, or in which the child was in the custody or under the guardianship of a person other than one or both of his or her natural or adoptive parents; thus, Ark. Code Ann. § 9-13-103(c)(2) (Repl. 2002) would allow a grandparental visitation petition to be filed against a person or entity that had no Fourteenth Amendment parental rights and, thus, no fundamental interest at stake; facial invalidation of the GPVA was, therefore, inappropriate.

[28]     22. Constitutional law — state had no compelling interest in judicially interfering with appellant's fundamental parenting rights — statute unconstitutional as applied. — The GPVA was unconstitutional as applied where, rather than giving the parent's decision presumptive or special weight in deciding whether grandparental visitation was in the best interest of the child, as Troxel required, the GPVA left the decision solely to the discretion of the trial court, and where, when denying grandparental visitation, the GPVA required that the trial court state the reasons for the denial in writing, and there was no concomitant requirement that the reasons be stated in writing when a trial court granted visitation; the net result was that the trial court could grant grandparental visitation without the burden of stating its reasons, but denial by the trial court required justification and implicitly placed the burden of proof on the parent; by this requirement, the General Assembly incorporated a procedural preference for granting

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such rights as opposed to denying them; this preference was directly at odds with the presumptive effect given to the parent's wishes under Troxel and, in effect, shifted the burden of proof to the parent; under a strict-scrutiny analysis, the state had no compelling interest in judicially interfering with appellant's fundamental parenting rights.

[29]     23. Constitutional law — unfitness solely to decide visitation matters does not equate to unfitness to parent — state could not interfere without compelling interest. — Where the trial court found the appellant to be a fit parent for all purposes except for making the decision about her child's relationship with his paternal grandparents, the supreme court determined that unfitness solely to decide visitation matters was not a compelling interest sufficient to warrant intrusion on a parent's fundamental parenting right and to overcome the presumption in the parent's favor; there must be some other special factor such as harm to the child or custodial unfitness that justifies state interference; so long as appellant was fit to care for her child on a day-to-day basis, the Fourteenth Amendment right attached, and the state could not interfere without a compelling interest to do so; the state must accord "special weight" to the mother's decision so long as she is a fit mother.

[30]     24. Constitutional law — appellees' contention without merit — cutting off some or all grandparental visitation was not critical point on which Troxel decision turned. — The supreme court disagreed with appellees's contention that this case differed from Troxel in that here the appellant had refused all grandparental visitation whereas in Troxel the parent was agreeable to some visitation; this factual distinction did not represent a basis for rendering Troxel inapposite; the Supreme Court has addressed grandparental visitation in one case since its decision in Troxel, and in it the Court summarily vacated a decision that had limited a parent's right to cut off all grandparental visitation and cited Troxel as authority for doing so; it was apparent that, in the Court's view, cutting off some or all parental visitation, in and of itself, was not the critical point on which the Troxel decision turned.

[31]     25. Constitutional law — supreme court disagreed with appellees' conclusion — case relied upon did not find GPVA to be constitutional. — The supreme court disagreed with appellees' contention that the supreme court had held that the GPVA was constitutional in the case of Reed v. Glover, 319 Ark. 16,

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 889 S.W.2d 729 (1994); at issue in Reed, which was handed down pre-Troxel, was whether the GPVA discriminated against illegitimate children in violation of the Equal Protection Clause of the Fourteenth Amendment; the other issue in Reed was whether a grandparent's due process rights were violated because visitation was taken from her without a hearing; both issues were decided against the grandparent, primarily because no convincing authority was cited by her in support of her contentions; those issues were a far cry from the issues presented here.

[32]     26. Statutes — supreme court reluctant to read language into statute to render it constitutional — court will not legislate to save statute. — The supreme court's jurisprudence has recognized a reluctance to read language into a statute to render it constitutional; it has declined to salvage a facially unconstitutional statute by narrowing its scope; the court stated that doing so would clearly be legislating in order to save the statute, which it will not do.

[33]     27. Statutes — construction of statute to eliminate vagueness is legislating — court will employ factors to use in applying statute whose constitutionality is not in issue. — Where the constitutionality of a vague statute is at issue, the supreme court will decline to construe the statute to eliminate the vagueness as that would be legislating; where however, the constitutionality of the statute is not involved, the court will employ factors for the trial court to consider in applying the statute in issue.

[34]     28. Statutes — rewriting of grandparent visitation law best left to legislature — case reversed & dismissed. — For the supreme court to completely overhaul the GPVA would be a significant task; our GPVA gives no presumption to the parent's wishes, it procedurally favors the granting of grandparental visitation, and, thus, implicitly shifts the burden of proof to the parent, and it fails to spell out under what circumstances parental unfitness or harm to the child would warrant state intrusion; while it might have appeared better on the surface not to dismiss the case altogether, the alternative was to completely rewrite the GPVA, contrary to express legislative intent, which is best left to the General Assembly; in light of the statute's unconstitutionality as applied here, the supreme court reversed and dismissed the case so that the General Assembly could correct the GPVA's constitutional lapses by judicially narrowing the statute.

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[35]     Appeal from Sebastian Chancery Court; Jim Spears, Chancellor; reversed and dismissed.

[36]     Joel W. Price, for appellants.

[37]     Ronald W. Metcalf, P.A., by: Ronald W. Metcalf, for appellees.

[38]     Mark Pryor, Att'y Gen., by: Melanie Winslow, Ass't Att'y Gen., for intervenor.

[39]     The opinion of the court was delivered by: Robert L. Brown, Justice.

[40]     This is a grandparent visitation-rights case. At issue is the constitutionality of the Arkansas Grandparental Visitation Act, codified at Ark. Code Ann. § 9-13-103 (Repl. 2002) (GPVA). There are three appellants in this matter: Lea Ann Linder, mother of Brandon Linder, the minor child around whom this litigation revolves; Cleta Johnson, Lea Ann's mother; and Carolyn Greene, Lea Ann's sister. *fn1 The appellees are Bill Linder, Brandon's paternal grandfather, and Mildred Sims, Brandon's paternal grandmother. Bill Linder and Mildred Sims were granted visitation with Brandon by the trial court. Lea Ann now appeals this grant of visitation. The State of Arkansas has intervened to defend the constitutionality of the GPVA.

[41]     On April 24, 1992, Lea Ann Linder married Steven Linder. They had one child, Brandon, who was born on November 17, 1995. Steven, Lea Ann, and Brandon lived near Alma and close to Bill Linder, Steven's father. Bill and Steven's mother, Mildred Sims, had divorced some years earlier. Bill was remarried to Donna Linder. Bill and Donna had two children, Nikki and Stacey. Steven worked with Bill on a daily basis, and Bill saw Brandon on a regular basis.

[42]     On November 11, 1997, just before Brandon's second birthday, Steven Linder was killed in a four-wheel all-terrain vehicle accident while he was hunting. In the immediate aftermath of Steven's death, Lea Ann and Brandon spent Brandon's birthday, part of Thanksgiving, and part of the Christmas Eve holiday with Bill and Donna Linder. During this time, Bill saw Brandon on a fairly regular basis, though less than when Steven was alive.

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[43]     For about four months after Steven's death, Lea Ann and Brandon remained in the house in which they had all lived, which was in close proximity to Bill's home. According to Lea Ann, she did not feel comfortable living in the house, and she and Brandon moved into a duplex in nearby Van Buren. Lea Ann got a job and put Brandon in day care. While they lived in Van Buren, Lea Ann told Bill that he could see Brandon if he came to their home. He did not do so. In 1998, Lea Ann and Bill had arrangements to spend part of the Easter holiday together, but those plans fell through when Lea Ann called Bill and canceled due to a conflict.

[44]     In the late spring of 1998, relations between Bill and Lea Ann became more strained. At the end of May, Lea Ann moved to a house in Fort Smith. Soon thereafter, on June 11, 1998, Bill contacted Lea Ann and specifically requested to see Brandon. The two were unable to work out a mutually convenient time for the visit. On June 24, 1998, Bill Linder filed a petition for visitation in the Sebastian County Chancery Court.

[45]     In the visitation petition, Bill alleged that he had a close and loving relationship with Brandon, and that Lea Ann was unreasonably denying him access to his grandson. He proceeded in his petition under Ark. Code Ann. § 9-13-101 (Repl. 2002), Arkansas's general custody statute and asserted that that statute, which provided for grandparental custody, gave the chancery court the implied power to grant grandparental visitation. The petition did not invoke rights under the GPVA. Nor did the petition assert that Brandon would suffer harm if he did not see his grandfather, or that Lea Ann Linder was an unfit mother.

[46]     The parties began the discovery process. Lea Ann was deposed, and in her deposition, she asserted that she did not want Bill to have as much visitation as he wanted, but that she would agree to limited visitation. She stated, as her reason for limiting the visitation, that Bill and Steven's mother, Mildred Sims, were locked in a power struggle over family members' loyalties. She further stated that Steven, during his life, had always had problems with his father, and that she did not want Brandon to have the same problems. She also stated that Steven had confided in her that

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[47]     he did not enjoy working with his father, and that his father was a source of emotional anguish to him.

[48]     After the deposition, Bill moved for temporary visitation, alleging that discovery could take some time and that he should be allowed to see Brandon during the interim period. On August 5, 1998, the trial court entered a temporary visitation order pending a hearing on the petition. The order, entered on August 10, 1998, granted Bill temporary visitation. In its order, the trial court required Lea Ann to allow Bill to see Brandon according to the Twelfth Judicial District's standard visitation order and allowed limited weekend visitation with Brandon.

[49]     On August 13, 1998, Lea Ann filed a motion to set aside the temporary order and requested an emergency hearing. She attached several letters from medical professionals and friends expressing the opinion that Brandon should not be separated from his mother during his time of loss and confusion about his father's death. During the pendency of her motion to set aside, Lea Ann did not allow Bill to see Brandon, contrary to the trial court's temporary order. Bill filed a motion to show cause on why she should not be held in contempt of court.

[50]     On August 27, 1998, the chancellor held a hearing on the temporary order and on Bill's motion for contempt. After hearing the testimony of several witnesses for both sides, including Lea Ann and Bill, the trial court ruled from the bench that it was in Brandon's best interests to grant Bill's petition for visitation. In its order, the trial court allowed Bill visitation every other weekend. The court also found Lea Ann to be in contempt of court but did not impose a sanction. The trial court's order was not filed until September 2, 1998.

[51]     On August 31, 1998, Bill filed another motion for contempt due to Lea Ann's failure to comply with the trial court's August 27 bench ruling. On September 2, 1998, another contempt hearing was held. Again, the chancellor found Lea Ann to be in contempt of court but did not sanction her. After this hearing, Lea Ann allowed Bill two visits with Brandon as ordered by the court. This was the first time Bill had seen Brandon since February 1998. Lea Ann, however, did not allow a third visit, because she stated

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[52]     that Brandon had a fever and was too ill to visit. In response, Bill filed his third motion for contempt on September 22, 1998.

[53]     On September 25, 1998, Lea Ann filed a Notice of Appeal from the September 2, 1998 order but did not pursue this appeal and never lodged a record in the matter.
 
[54]     On October 6, 1998, Bill's counsel wrote a letter to the trial court in which he averred that on October 3, 1998, Bill picked up Brandon from Lea Ann's house for an overnight visit. According to the letter, there were several irregularities with this visit. First, Lea Ann's sister, Carolyn, was present at the pick-up and, as was apparently her custom, she videotaped the pick-up. Second, Lea Ann called to check on Brandon nine times during the visit. Third, Lea Ann appeared uninvited and unannounced twice during the visit: first in the parking lot of the county fair, and then at Bill's home at midnight. Subsequent to this overnight visit, the trial court warned the parties to cooperate.
 
[55]     Contrary to the trial court's letter and prior orders, Lea Ann did not make Brandon available for his next visitation. On October 12, 1998, Bill filed a fourth motion for contempt. On October 15, 1998, the trial court held an emergency hearing on this motion. Lea Ann did not appear at the hearing and had fled the jurisdiction, taking Brandon with her. On October 22, 1998, the trial court found Lea Ann in contempt of court and issued a warrant for her arrest. On October 26, 1998, Bill moved for temporary custody of Brandon. The same day, the court granted Bill's motion ex parte and awarded Bill temporary custody of Brandon.
 
[56]     Lea Ann's and Brandon's whereabouts remained unknown for a year, despite the efforts of local, state, and federal law enforcement officers. After months of attempting to locate the two, Bill joined Cleta Johnson (Lea Ann's mother) and Carolyn Greene (Lea Ann's sister) in his visitation action. He then deposed them regarding Lea Ann's and Brandon's location. Both women refused to disclose the information and invoked their Fifth Amendment protection against self-incrimination on the advice of counsel.

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[57]     On October 14, 1999, Bill moved to hold Cleta and Carolyn in contempt of court for their refusal to disclose Lea Ann's location. On October 18, 1999, the trial court ordered them jailed for contempt and conditioned their release on Lea Ann's surrendering herself to the court. That same day, Cleta and Carolyn told the court that Lea Ann and Brandon were living in Columbus, Ohio.
 
[58]     While living in Ohio, Lea Ann had married a man named Wes Carlisle. Ohio law enforcement authorities located Lea Ann and Brandon in Columbus, and Lea Ann surrendered herself to the court that evening. Cleta and Carolyn were released from jail the next day, and Lea Ann was placed in jail until the trial court released her on October 25, 1999. Brandon was delivered to Bill under the trial court's custody order. On October 28, 1999, Lea Ann moved to have custody of Brandon restored to her because she was now back in the jurisdiction of the trial court. The motion further alleged that while in Bill's custody, Brandon was attacked by a dog and suffered lacerations on his face. There is nothing in the record before us to indicate that the trial court took any action on her motion.
 
[59]     On November 4, 1999, Bill moved that all parties to the litigation undergo psychological evaluations. He specifically requested that Dr. Mary "Guen" Wright, a forensic psychologist, be appointed by the trial court for this task. Lea Ann objected to Dr. Wright's performing the requested evaluations because Bill had already hired her to counsel Brandon. On November 8, 1999, the court granted Bill's motion over Lea Ann's objections. Psychological evaluations of all involved parties commenced.
 
[60]     On the weekend of December 10, 1999, Lea Ann had visitation with Brandon, who was still in Bill's custody. As part of her visitation, she took Brandon to Ohio to see her husband and Brandon's step-father. This out-of-state trip violated the terms of the trial court's visitation order, according to Bill's December 20, 1999 Motion for Performance Bond. The motion sought to require Lea Ann to post a bond to fund Bill's efforts to find Brandon and her if she again fled the jurisdiction.

[61]     On December 16, 1999, Lea Ann again moved the trial court to return Brandon to her custody, but the court took no action on

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[62]     this motion. During the months of December 1999, and January and February 2000, a volley of correspondence to the trial court ensued in which Bill and Lea Ann, through counsel, disputed the details of Bill's custody and Lea Ann's visitation. The trial court did not respond to this correspondence. During this time, the psychological evaluations were ongoing.
 
[63]     On February 16, 2000, Mildred Sims intervened in the action in an attempt to obtain the right to visit Brandon under the GPVA. She had seen Brandon sporadically during Bill's custody in the latter months of 1999 and early 2000. In her motion, she alleged that Lea Ann had not made contact with her about Brandon, and that it would be in Brandon's best interest to have a relationship with his paternal grandmother.
 
[64]     On February 22 and 24, 2000, Lea Ann's counsel submitted two extensive motions and memoranda of law requesting that the GPVA be declared unconstitutional and that custody of Brandon be restored to her. She also moved to exclude the reports and testimony of Dr. Wright because she had been hired by Bill before the trial court ever appointed her. She noted that it was Bill who recommended Dr. Wright to the court. The trial court denied the motion to exclude.
 
[65]     On March 6, 2000, the trial court began a lengthy final hearing in this matter. This hearing continued on March 8, 2000, and on March 27-30, 2000. Dr. Guen Wright testified extensively at this hearing over Lea Ann's objections. Dr. Wright prepared and submitted to the court a sixty-page report detailing her psychological evaluations of Lea Ann, Brandon, Wes Carlisle, Bill, Donna, Cleta, and Carolyn.
 
[66]     The crux of Dr. Wright's testimony was that Lea Ann suffered from two psychological disorders. First, Dr. Wright opined that Lea Ann suffered from a psychological disorder known as shared psychotic disorder, or folieá deux. *fn2 Folieá deux is a disorder which occurs when a diagnosed person is so closely connected with and bonded to another person (called the inducer) that the psychosis of the inducer is adopted by the diagnosed person. In

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[67]     this case, Dr. Wright opined that Lea Ann had adopted the persecutory-delusional psychosis of her mother, Cleta Johnson, whom Dr. Wright identified as the inducer. This was Dr. Wright's first diagnosis of folieádeux in her career. On cross-examination, Dr. Wright opined that Cleta and Lea Ann were able to maintain the extraordinarily close relationship required for folieádeux through telephone calls.
 
[68]     Dr. Wright also diagnosed Lea Ann with narcissistic personality disorder, which is characterized primarily by an inflated and unrealistic sense of one's own self-worth. Dr. Wright did not diagnose any other adult as having psychological disorders, although she did diagnose Brandon with three disorders.
 
[69]     In addition to Dr. Wright's testimony, Bill testified. He also presented the testimony of Cleta regarding her relationship with her daughter, and Sebastian County Sheriff's Department warrant officer John Mendenhall, who was involved in the year-long effort to locate Lea Ann in 1998-1999. Lea Ann presented the testimony of Wes Carlisle's mother, Beverly Carlisle, as well as the testimony of Drs. Donald Chambers, Patricia Walz, and Richard Aclin. Dr. Chambers vigorously disputed Dr. Wright's diagnosis of folieá deux.
 
[70]     After the conclusion of the testimony, the trial court made a partial bench ruling. The court declined to hold the GPVA unconstitutional. At the beginning of the final hearing held on March 6, 2000, the trial court first stated that position when it said from the bench that this trial court did not rule acts of the legislature unconstitutional. At the conclusion of the testimony the trial court reiterated its prior statement when it made the following ruling:
 
[71]     I am going to overrule Mr. Price's motion to declare the Arkansas statute unconstitutional. I'll let some other forum address that, but I'm not. I find it to be without merit, and I'm overruling it.
 
[72]     The court gave Lea Ann custody of Brandon and allowed Bill and Mildred the standard visitation associated with noncustodial parents. He required that Lea Ann post a $20,000 bond as assurance that she would permit the visitation.

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[73]     There were several post-hearing pleadings filed by the parties involved. Specifically, on March 24, 2000, Lea Ann moved to strike Dr. Wright's testimony. On June 8, 2000, Lea Ann renewed her motion to have the GPVA declared unconstitutional in light of the United States Supreme Court's opinion in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), which was handed down on June 5, 2000 and which declared Washington state's GPVA unconstitutional as applied.
 
[74]     On June 26, 2000, the State of Arkansas intervened in this matter and filed a brief in the trial court. The State urged the court to find Arkansas's GPVA constitutional under Troxel v. Granville, supra.
 
[75]     In mid-July, 2000, Lea Ann was offered a job transfer to New York within her company, Renaissance Imports, which is a shoe-import outfit operating in New York state. The transfer offered salary and benefits comparable to her job in Arkansas. She requested that the trial court allow her to accept the transfer and move, with Brandon, to New York.
 
[76]     On August 9, 2000, the trial court entered an order formally deciding the outcome of the custody/visitation hearing as well as the other post-hearing matters pending before it. The order declared the Arkansas GPVA to be constitutional as applied and on its face. The order awarded custody of Brandon to Lea Ann and found her to be a fit mother. However, the trial court denied Lea Ann's request to move to New York and required the posting of a $20,000 bond assuring the court that she would not flee the jurisdiction and that she would allow the visitation that Bill was awarded in conformity with the court's standard order. Bill was permitted weekend visitation and Wednesday night visitation. Mildred Sims was assigned Bill's visitation on the first weekend of each month.
 
[77]     Lea Ann now appeals from this order, as do Cleta Johnson and Carolyn Greene. She urges this court to declare GPVA unconstitutional. She also challenges a number of other rulings made by the trial court, which we do not reach as we reverse and dismiss on her first issue raised.

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[78]     I. Motion to dismiss and strike
 
[79]     As an initial point, appellees Bill Linder and Mildred Sims move to dismiss the 1998 appeal in this case. This prior appeal consisted solely of a Notice of Appeal filed by Lea Ann on September 25, 1998, and was not pursued, as Lea Ann fled the jurisdiction some twenty days later. As a result, the appellees argue that the constitutionality of the GPVA and Bill's visitation have become law of the case or, alternatively, that the doctrine of res judicata applies. The appellees ask this court to dismiss the 1998 notice of appeal and to strike those portions of Lea Ann's brief which challenge the constitutionality of the GPVA and the trial court's visitation order.
 
[80]     [1] With respect to law of the case, we note that there was no previous opinion by an appellate court in this state. This court recently observed that the doctrine applied when there had been a previous appellate opinion in the case. See Cadillac Cowboy v. Jackson, 347 Ark. 963, 69 S.W.3d 383 (2002). In Cadillac Cowboy, we said:
 
[81]     The venerable doctrine of law of the case prohibits a court from reconsidering issues of law and fact that have already been decided on appeal. The doctrine serves to effectuate efficiency and finality in the judicial process. Frazier v. Fortenberry, 5 Ark. 200 (1843); see also, 5 Am.Jur.2d Appellate Review § 605 (1995). We have said the following with regard to the law-of-the-case doctrine:
 
[82]     The doctrine provides that a decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). On the second appeal, the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Griffin v. First Nat'l Bank, 318 Ark. 848, 888 S.W.2d 306 (1994).

 [83]     Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 346, 47 S.W.3d 227, 237 (2001).

 [84]     Cadillac Cowboy v. Jackson, 347 Ark. at 970, 69 S.W.3d at 388. 

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[85]     [2, 3] It is true that under our doctrine of law of the case, we do not address in a second appeal issues that could have been raised in the first appeal, but were not. Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002) (citing McDonalds Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994); Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989)). As we said in Morris v. Garmon, 291 Ark. 67, 68-69, 722 S.W.2d 571, 573 (1987): "On second appeal, as in this case, the decision on the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented." However, it is equally clear from our cases that it is this court's opinion in a prior appeal which becomes law of the case, not the mere filing of a notice of appeal. See, e.g., Ghehan v. Ghehan v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001) ("[T]he decision on the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal."); Morris v. Garmon, supra ("[T]he decision on the first appeal becomes the law of the case[.]") There was no decision in a previous appeal in the case before us. We conclude that a motion to dismiss this matter due to law of the case has no merit.
 
[86]     [4] With respect to res judicata, it is true that the doctrine bars the relitigation of claims that were actually litigated in the first suit as well as those that could have been litigated. Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001); Well v. Arkansas Pub. Serv. Comm'n, 272 Ark. 481, 616 S.W.2d 718 (1981). Thus, where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Willis, supra; Swofford v. Swofford, 295 Ark. 433, 748 S.W.2d 660 (1988). The policy of the doctrine is to prevent parties from relitigating issues or raising new issues when they have already been given a fair trial. Willis, supra; McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990).
 
[87]     [5] Custody matters, however, are different when the doctrine of res judicata is called into play. When the matter is a custody issue, our court takes a more flexible approach to res judicata. We recognize, for example, that custody orders are subject to modification 

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[88]     in order to respond to changed circumstances and the best interest of the child. Mood v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987). For example, in Tucker v. Tucker, 195 Ark. 632, 636, 113 S.W.2d 508, 508 (1938), we said;
 
[89]     The judgment of a chancery court in this state, awarding the custody of an infant child to one of the parents, or to any other person, is a final judgment, from which an appeal lies, but it is not res judicata in the same or another court of this state involving the custody of the same child, where it is shown that the conditions under which the former decree was made have changed and that the best interest of said child demand a reconsideration of said order or decree.
 
[90]     [6] In the case at hand, what has been involved since 1998 has been Bill Linder's petition for visitation and, since 1999, the custody of Brandon. Secondly, the constitutionality of the GPVA was not an issue in the litigation that preceded the September 2, 1998 order. Indeed, it was not raised until Mildred Sim's petition in 1999. Troxel v. Granville, supra, which has become the seminal case, was not handed down by the United States Supreme Court until 2000. Res judicata simply does not govern this situation.
 
[91]     [7] We deny the appellees' motion to dismiss and strike.
 
[92]     II. Constitutionality of the GPVA
 
[93]     For her first point on appeal, Lea Ann contends that the GPVA, under which Bill was awarded visitation, is unconstitutional, both facially and as applied. She bases her argument on her Fourteenth Amendment liberty interest in parenting her child without undue interference from the state, as recently addressed by the United States Supreme Court in Troxel v. Granville, supra.
 
[94]     Arkansas's GPVA provides:
 
[95]     (a)(1) Upon petition by a person properly before it, a circuit court of this state may grant grandparents and great-grandparents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if: 

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[96]     (A) The marital relationship between the parents of the child has been severed by death, divorce, or legal separation; or
 
[97]     (B) The child is in the custody or under the guardianship of a person other than one (1) or both of his or her natural or adoptive parents; or
 
[98]     (C) The child is illegitimate, and the person is a maternal grandparent of the illegitimate child; or
 
[99]     (D) The child is illegitimate, and the person is a paternal grandparent of the illegitimate child, and paternity has been established by a court of competent jurisdiction.
 
[100]    (2) The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor.
 
[101]    (3)(A) An order denying visitation rights to grandparents and great-grandparents shall be in writing and shall state the reasons for denial.
 
[102]    (B) An order denying visitation rights is a final order for purposes of appeal.
 
[103]    (b) If the court denies the petition requesting grandparent visitation rights and determines that the petition for grandparent visitation rights is not well-founded, was filed with malicious intent or purpose, or is not in the best interest and welfare of the child, the court may, upon motion of the respondent, order the petitioner to pay reasonable attorney's fees and court costs to the attorney of the respondent, after taking into consideration the financial ability of the petitioner and the circumstances involved.
 
[104]    (c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations:
 
[105]    (1) In which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation; or
 
[106]    (2) In which the child is in the custody or under the guardianship of a person other than one (1) or both of his or her natural or adoptive parents; or
 
[107]    (3) If the child is illegitimate.
 
[108]    Ark. Code Ann. § 9-13-103 (Repl. 2002).

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[109]    a. Fundamental right to parent.
 
[110]    [8] The Fourteenth Amendment provides in relevant part that "[No state shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. 14 § 1. This language has been interpreted over the years to have both a procedural and substantive component. The substantive component of the due process clause protects "those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
 
[111]    [9, 10] One of the substantive components that has emerged from the Fourteenth Amendment's guarantee of due process of law is the liberty right of a parent to have and raise children. Several cases from the United States Supreme Court have dealt with the contours of this right as it has emerged over recent decades. In Troxel v. Granville, supra, Justice O'Connor, speaking for four Justices in a plurality decision, summarized the Court's approach to governmental intrusions on the parent-child relationship:
 
[112]    [T]he 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, 43 S.Ct. 625, 67 L.Ed. 1042 (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, 45 S.Ct. 571, 69 L.Ed. 1070 (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 "[t]he 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." Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of

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[113]    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 function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166, 64 S.Ct. 438.
 
[114]    In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. . . . In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
 
[115]    Troxel, 530 U.S. at 65-66.
 
[116]    [11] Thus, a parent has a liberty interest, for example, in shaping a child's education. Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating Wisconsin statute purporting to require Amish children to attend public school, against the wishes of the parents). A parent also has a right to direct the care and upbringing of a child. Prince v. Massachusetts, supra (affirming application of a child-labor law to the parent of a child distributing religious tracts). Accordingly, a fit parent is given a presumption that he or she is acting in a child's best interests. Parham v. J.R., 442 U.S. 584, 602 (1979) ("[N]atural bonds of affection lead parents to act in the best interests of their children."). The parental rights protected by the Fourteenth Amendment do not spring from a bare biological connection to a child, but rather must be born of a relationship to a child demonstrated over time. Michael H. v. Gerald D., 491 U.S. 110 (1989).
 
[117]    b. Troxel v. Granville
 
[118]    In Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), the United States Supreme Court wrestled with the balance between state statutes granting grandparents the right to petition for visitation rights against a parent's Fourteenth-Amendment due-process liberty interest in parenting a child without undue state interference. The Washington State statute involved in Troxel was considerably broader than the Arkansas statute at issue in the instant case, as it allowed any person the right to petition for visitation

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[119]    at any time. In Troxel, the two children at issue were born to unwed parents, and the father later committed suicide. Before the father's death, the paternal grandparents saw the two children frequently. However, after the father's death, the visits became less regular. The grandparents petitioned for additional visitation time. The mother agreed to some visitation but balked at giving as much visitation as the grandparents wanted.
 
[120]    The Washington Supreme Court declared the Washington statute to be facially invalid due to its breadth. See In re Smith, 137 Wn.2d 1, 969 P.2d 21 (1998). The Washington Supreme Court first determined that strict scrutiny should apply to any intrusion on the parent's Fourteenth Amendment, fundamental interest in parenting the child without state intrusion. The court then identified possible compelling state interests that might offset the parent's fundamental interest, each of which was predicated on harm or threat of harm to a child. Only in the event of harm, the court reasoned, would the State be justified in intruding upon a parent-child relationship by ordering nonparental visitation against the parent's will. The Washington court concluded that a statute that allowed any person to petition for visitation under any circumstances was not justified by a compelling interest.
 
[121]    The United States Supreme Court granted certiorari and affirmed, but took a different tack in the case. In the resulting opinions, all but one justice agreed that the Fourteenth Amendment provided a liberty interest for parents to be free from intrusion by government when making decisions regarding the rearing of children. Instead of addressing the facial challenge to the statute, as the Washington court had done, Justice O'Connor, writing for four justices, addressed only the application of the statute and held that the Washington statute was unconstitutional as applied.
 
[122]    [12, 13] Justice O'Connor's analysis began by characterizing the Washington statute as "breathtakingly broad." Troxel, 530 U.S. at 67. She then focused on the central problem with the statute: It fails to accord a fit parent's wishes any weight whatsoever. The statute, in employing only the best-interest-of-the-child standard, failed to recognize the fit parent's interest in deciding what is in a child's best interest. The only guidance offered by Justice

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[123]    O'Connor as to the scope of the "fitness" determination is her statement that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69 (emphasis added). She then observed:
 
[124]    [The statute] 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 [of the child] 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 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.
 
[125]    . . . 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.
 
[126]    Troxel, 530 U.S. at 67-68 (emphasis added).
 
[127]    [14, 15] Justice O'Connor went on to note that impingement on a parent's fundamental liberty right to raise children requires heightened review and that one "special factor" that might warrant state interference was if the parent were declared unfit. Troxel, 530 U.S. at 68. She summarized:
 
[128]    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.

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[129]    Troxel, 530 U.S. at 70 (emphasis added). Thus, if a parent is unfit, then clearly under this approach, the state intrusion into the relationship is warranted. Justice O'Connor concluded:
 
[130]    As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing 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.
 
[131]    Troxel, 530 U.S. at 72-73. She declined to issue a per se ruling on the constitutionality of grandparental visitation statutes, preferring instead to allow state courts to resolve the issue as well as the disposition.
 
[132]    Justice O'Connor's opinion in the case was joined by Chief Justice Rehnquist and Justices Breyer and Ginsburg. Justices Souter and Thomas concurred in separate opinions. Justice Souter's reasoning departed from Justice O'Connor's opinion in that he would have facially invalidated the Washington statute in the same manner as the Washington Supreme Court did. Justice Thomas also concurred. He initially noted his reservations about substantive-due-process jurisprudence generally but concurred in the judgment because the parties did not ask the court to overrule its precedent holding that parents have a fundamental rights to raise their children. He also noted that none of the opinions set out a standard of scrutiny to which courts should hold nonparental visitation statutes. He urged state courts to apply strict scrutiny to these statutes in the same manner that the Washington Supreme Court did.
 
[133]    Justice Stevens, Scalia, and Kennedy each dissented. Justice Stevens would have reversed and remanded for the Washington Supreme Court to judicially narrow the terms of the statute. Justice Stevens's dissent also noted that Justice O'Connor's opinion focused solely on the parent's liberty interest in raising the child. However, he noted that there are many interests at stake, including

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[134]    the child's interest in forming a relationship with a grandparent. Justice Stevens specifically rejected the notion that there must be a threshold showing of unfitness on the part of the parent before nonparental visitation is permissible. He would instead invoke a balancing approach, weighing all of the interests at stake in any given case.
 
[135]    Justice Scalia would have reversed and dismissed the case. In his opinion, it is the state legislatures that have the power to enact family-law legislation, and he questioned the validity of any substantive due process right to parent a child. He would decline to "federalize" family law, reasoning that state legislatures are better equipped to make law in the family-law area. Justice Kennedy also dissented and would have reversed and remanded the case. He agreed that parents have a Fourteenth Amendment right to parent their children without undue state interference, but he asserted that with today's changing family structure a best-interests balancing test was the most appropriate standard of review.
 
[136]    To summarize, six Justices agreed that the case should be affirmed (O'Connor, Rehnquist, Ginsburg, Breyer, Souter, and Thomas). Eight Justices agreed that the Fourteenth Amendment protects a parent's right to raise his or her child without undue interference from government (all but Scalia; Thomas with reservations). Five Justices agreed that a fit parent is accorded a presumption that the parent acts in the child's best interests (O'Connor, Rehnquist, Ginsburg, Breyer, and Stevens). Four Justices (O'Connor, Rehnquist, Ginsburg, and Breyer) agreed that "special factors" must "justify" the state's intrusion, and that one of those factors is a finding of parental unfitness.
 
[137]    c. Standard of Review.
 
[138]    [16, 17] We begin our analysis of the instant case by concluding that Lea Ann, as a single parent, has a fundamental right under the Fourteenth Amendment in prohibiting state intrusion on her parenting of Brandon. The next question, then, is what level of scrutiny this court should apply when examining the constitutionality of the state's intrusion upon her right. Most courts that have addressed this issue have used the analysis of the

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[139]    strict-scrutiny review. See, e.g., Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002); Santi v. Santi, 633 N.W.2d 312 (Iowa 2001); In re Smith, 137 Wn.2d 1, 969 P.2d 21 (1998). The United States Supreme Court, however, did not directly address whether strict scrutiny is appropriate in Troxel. Only Justice Thomas in his concurring opinion advanced the idea that strict scrutiny should be the standard of review for any impingement on this fundamental right.
 
[140]    [18] Nevertheless, assessment of intrusions on other fundamental rights have traditionally been reviewed by the Court under the strict scrutiny standard. See, e.g., Washington v. Glucksberg, supra; Reno v. Flores, 507 U.S. 292 (1993). The notable exceptions are the cases in which the Court has balanced two equally compelling interests or fundamental rights. In these cases, the Court has rejected strict scrutiny and instead adopted a balancing test. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (plurality opinion) (balancing the state's compelling interest in protecting life of the unborn against the burden on a woman's privacy right to terminate a pregnancy); Cruzan v. Missouri Dep't of Health, 497 U.S. 261 (1990) (balancing a patient's right to refuse medical treatment against the state's equally compelling interest in safeguarding an individual's personal choice between life and death).
 
[141]    [19] We hold that strict scrutiny is the standard that should apply to this case. Here, we have only one fundamental right at issue — Lea Ann's right to raise her child — and one statutorily created procedure for a judicial award of grandparental visitation. As Justice O'Connor noted in Troxel, grandparental visitation has no historic roots in the common law but rather is a legislated creature of the late twentieth century. Troxel, 530 U.S. at 96-97 (plurality opinion); see also Brooks v. Parkerson, 454 S.E.2d 769, 770 n. 2 (Ga. 1995) ("At common law grandparents had no legal right of visitation with their grandchildren over the objections of the parents."); Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
 
[142]    The State argues that we should review the constitutionality of the GPVA under a rational-basis standard, but cites no authority

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[143]    in support of this contention. We disagree and will apply the strict scrutiny standard to our analysis of this case.
 
[144]    d. Facial Unconstitutionality
 
[145]    [20] We turn then to Lea Ann's challenge that the GPVA is unconstitutional on its face. A facial invalidation of a statute is appropriate if it can be shown that under no circumstances can the statute be constitutionally applied. United States v. Salerno, 481 U.S. 739 (1987). Here, we conclude that the GPVA could be constitutionally applied in a narrow category of cases. As a prerequisite to filing a petition, the statute requires the following:
 
[146]    (c) The provisions of subsections (a) and (b) of this section shall only be applicable in situations:
 
[147]    (1) In which there is a severed marital relationship between the parents of the natural or adoptive children by either death, divorce, or legal separation; or
 
[148]    (2) In which the child is in the custody or under the guardianship of a person other than one (1) or both of his or her natural or adoptive parents; . . .
 
[149]    Ark. Code Ann. § 9-13-103 (Repl. 2002). Thus, § 9-13-103(c)(2) would allow a grandparental visitation petition to be filed against a person or entity that had no Fourteenth Amendment parental rights and, thus, no fundamental interest at stake. For example, if a child was in the custody of the State Division of Youth Services, section (c)(2) would allow the grandparents to petition for visitation. In that situation, there would be no fundamental parental right at stake, and a trial court would be perfectly within its legal bounds to decide what is in the best interest of the child and apply the statute accordingly.
 
[150]    [21] Facial invalidation of the GPVA is, therefore, inappropriate. We hold as we do, even though we note that the trial court implored any reviewing court to find that its order either complied with Troxel or that the GPVA is unconstitutional on its face. We decline to declare that the statute is facially invalid for the reasons given.

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[151]    e. Unconstitutional As Applied.
 
[152]    [22] We next address whether the GPVA is unconstitutional as applied. Stated differently, under a strict-scrutiny analysis, we must resolve whether this State has a compelling interest in judicially interfering with Lea Ann's fundamental parenting rights. In assessing our GPVA in light of Troxel, we immediately discern a major deficiency. Rather than giving the parent's decision presumptive or special weight in deciding whether grandparental visitation is in the best interest of the child, as Troxel requires, the GPVA makes no provision for that but leaves the decision solely to the discretion of the trial court. Ark. Code Ann. § 9-13-103(a)(2) (Repl. 2002). Furthermore, when denying grandparental visitation, the GPVA requires that the trial court state the reasons for the denial in writing. Ark. Code Ann. § 9-13-103(a)(3)(A) (Repl. 2002). No concomitant requirement that the reasons be stated in writing is required when a trial court grants grandparental visitation. The net result is that the trial court may grant grandparental visitation without the burden of stating its reasons, but denial by the trial court requires justification and implicitly places the burden of proof on the parent. By this requirement, the General Assembly has incorporated a procedural preference for granting such rights as opposed to denying them. This preference is directly at odds with the presumptive effect given to the parent's wishes under Troxel and, in effect, shifts the burden of proof to the parent.
 
[153]    We next address the fitness issue and the trial court's August 9, 2000 order. According to that order, Lea Ann is found to be a fit mother. That order reads: "The natural mother of the child is suitable to provide day-to-day care of the child" and "she adequately cares for her child and there is an obvious loving parental bond between mother and child." The order concludes "that the custody of the child is to be with Lea Ann as she adequately provides for this [sic] daily needs."
 
[154]    Despite the explicit finding of fitness and the related award of custody to Lea Ann, the trial court's order then discusses grandparental visitation. It describes Lea Ann and her behavior as "irrational concerning the grandfather and not in touch with reality," "not fit to make the decision on behalf of the child as regards

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[155]    contact with the paternal grandfather," "delusional on the point of the court ordered visitation," and "totally unfit to make the decision concerning grand parental visitation." The trial court concludes:
 
[156]    For a person to react as has the defendant in this case is not an exercise in rationality. For a person to react as has the defendant overcomes the presumption of a parent acting in the best interest of a child. This is not just the court disagreeing with a decision made by a parent[.] [I]t is much more and satisfies the Troxel criteria. If it does not then no case ever will and the trial court implores any appellate court that may review this decision to declare the grandparent visitation law unconstitutional in toto. For a person to react as the defendant has in this case exhibits total irrationality and lack of judgment concerning the welfare of a child on the part of the mother. The behavior of the defendant has reached the level that justifies the court interfering in the parents liberties to make all decisions for the minor child.
 
[157]    The trial court concluded that the GPVA was constitutional.
 
[158]    [23] It appears that the trial court found Lea Ann to be a fit parent for all purposes save one: making the decision about Brandon's relationship with his paternal grandparents. This finding of fitness is corroborated by the court's grant of custody to her and his remarks about her suitability as a parent and her loving bond with Brandon. It is only with respect to making visitation decisions that Lea Ann was found to be wanting and unfit. The question then becomes whether unfitness solely to decide visitation matters is a compelling interest on the part of the State that warrants intrusion on a parent's fundamental parenting right and overcomes the presumption in the parent's favor. We conclude that it is not. So long as Lea Ann is fit to care for Brandon on a day-to-day basis, the Fourteenth Amendment right attaches, and the State may not interfere without a compelling interest to do so. As Justice O'Connor wrote in Troxel, the State must accord "special weight" to the mother's decision so long as she is a fit mother. See Troxel at 68-69.
 
[159]    One other jurisdiction has addressed an analogous question regarding unfitness to make a visitation decision. See In re Custody of Nunn, 103 Wn. App. 871, 14 P.3d 175 (2000). In Nunn, the

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[160]    appellate court considered a paternal aunt's argument that the mere fact that the natural mother of the child was rejecting contact with the paternal relatives made her unfit. The court framed the issue as follows:
 
[161]    And so the question boils down to this: Can an otherwise fit parent be found unfit because she chooses to fight a nonparental custody petition, because she openly expresses her dislike of the side of the family that brought the custody petition, because she avoids old family friends who are supporting the other side in the custody litigation, because she doesn't trust the custody evaluators who have been brought into the litigation, and because she doesn't foster a good relationship between her child and all of those people? The answer is no.
 
[162]    Nunn, 103 Wn. App. at 887-88, 14 P.3d at 184. The court went on to say: "It would be an anomaly to consider an otherwise fit parent unfit simply for exercising her fundamental right as a parent to limit visitation of her children with third persons — even if, as in Smith, those third persons are loving family members and close friends of family." Id. at 888, 14 P.3d at 184.
 
[163]    In short, we decline to hold that unfitness to decide visitation matters objectively equates to unfitness to parent sufficient to warrant state intrusion on the parent's fundamental right. Were we to decide otherwise, any custodial parent refusing visitation would be subject to a trial court's nonparental visitation order on grounds that the parent was unfit to decide the matter. Such a conclusion would be at odds with the Supreme Court's decision in Troxel. There must be some other special factor such as harm to the child or custodial unfitness that justifies state interference.
 
[164]    [24] The appellees further contend that the instant case differs from Troxel in that here Lea Ann refused all grandparental visitation whereas in Troxel the parent was agreeable to some visitation. The trial court also mentioned that distinction. We disagree that this factual distinction represents a basis for rendering Troxel inapposite. The Supreme Court has addressed grandparental visitation in one case since its decision in Troxel. See Dodge v. Graville, 121 S.Ct. 2584 (2001) (memorandum decision). In Dodge, the court summarily vacated a decision of the Arizona Court of Appeals, which had limited a parent's right to cut off all

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[165]    grandparental visitation and cited Troxel as authority for doing so. While this court can only speculate on the Court's reasons for vacating the Arizona Court of Appeal's decision in Dodge, it is apparent that, in the Court's view, cutting off some or all parental visitation, in and of itself, was not the critical point on which the Troxel decision turned.

[166]    [25] As a final point, the appellees contend that this court held that the GPVA is constitutional in the case of Reed v. Glover, 319 Ark. 16, 889 A.W.2d 729 (1994). We disagree with the appellees' conclusion. At issue in Reed, which was handed down pre-Troxel, was whether the GPVA discriminated against illegitimate children in violation of the equal protection clause of the Fourteenth Amendment. The other issue in Reed was whether a grandparent's due process rights were violated because visitation was taken from her without a hearing. We decided both issues against the grandparent, primarily because no convincing authority was cited by her in support of her contentions. Those issues are a far cry from what confronts us in the present case. We hold that the GPVA was unconstitutional as applied in this case and, as a result, violated Lea Ann's fundamental liberty interest under the due process clause.
 
[167]    f. Disposition
 
[168]    We are next confronted with how to dispose of this case in light of the GPVA's unconstitutionality, as applied to this case. The options are either reversal and dismissal for the General Assembly to correct the GPVA's constitutional lapses, or a remand to the trial court accompanied by an attempt by this court to correct those lapses by judicially narrowing the statute.
 
[169]    State courts, since Troxel, appear to be equally divided on whether to construe their particular statutes so as to render them constitutional. See, e.g., In re Paternity of Roger D.H., 2002 WL 59233 (Wis.App. Jan. 17, 2002) (publication decision pending) (reversing with instructions to give mother's wishes "presumptive weight" on remand); Zeman v. Stanford, 789 So.2d 798, (Miss. 2001) (using ten pre-Troxel factors to determine best interest of child); Crafton v. Gibson, 752 N.E.2d 78 (Ind. App. 2001) (reversing

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[170]    with instructions to give "special weight" to parent's wishes on remand). But See, e.g., DeRose v. DeRose, 2002 WL 100683, ___ N.W.2d ___ (Mich.App. Jan. 25, 2002); Punsly v. Ho, 87 Cal.App.4th 1099, 105 Cal.Rptr.2d 139 (2001) (reversing, stating that "where it is apparent that a visitation order violated the Constitution, the court should not force the parties into additional litigation"); Kyle O. v. Donald R., 85 Cal.App.4th 848, 102 Cal.Rptr.2d 476 (2000) (same). See also Troxel at 101 (Kennedy, J., dissenting) (noting the harmful effects of protracted visitation litigation).
 
[171]    We note that the states reading factors into their grandparent-visitation statutes for determining the best interest of the child have statutes that differ from our GPVA. For example, the Mississippi statute provides that the trial court must find that (1) the grandparent has established a viable relationship with the grandchild, and (2) that denial of visitation was unreasonable, as well as a finding that such visitation would be in the best interest of the child. See Stacy v. Ross, 798 So.2d 1275 (Miss. 2001). In West Virginia, the statute includes a burden-of-proof standard requiring the grandparents to prove by a preponderance of the evidence that the requested visitation is in the best interest of the child. Brandon L. v. Moats, 209 W. Va. 752, 551 S.E.2d 674 (2001).
 
[172]    [26] This court's jurisprudence has recognized a reluctance to read language into a statute to render it constitutional. In Shoemaker v. State, 343 Ark. 727, 736, 38 S.W.3d 350, 355 (2001), we declined to salvage a facially unconstitutional statute by narrowing its scope. We said:
 
[173]    Were this court to read into the statute a limitation to "fighting words," we would clearly be legislating in order to save the statute. This we will not do.
 
[174]    At issue in Shoemaker was a teacher-harassment statute which we declared unconstitutional as facially offensive to the First Amendment because it criminalized valid free speech.
 
[175]    [27] On the other hand, in Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999), this court remanded a case involving a child's name change for the trial court to consider certain factors

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[176]    in reaching its decision regarding the best interest of the child. The pivotal difference between our opinions in Shoemaker and Huffman is that in Shoemaker the constitutionality of a vague statute was at issue, and we declined to construe the statute to eliminate the vagueness as that would be legislating. In Huffman, the constitutionality of the statute was not involved. We merely employed factors for the trial court to consider in determining the best interest of the child when a name change was the issue under Ark. Code Ann. § 20-18-401 (Repl. 2000).
 
[177]    [28] For this court to completely overhaul our GPVA would be a significant task. Our GPVA gives no presumption to the parent's wishes. But, equally as important, it procedurally favors the granting of grandparental visitation, and, thus, implicitly shifts the burden of proof to the parent. Finally, it fails to spell out under what circumstances would parental unfitness or harm to the child would warrant state intrusion. While it may appear better on the surface not to dismiss this case altogether, the alternative is to completely rewrite the GPVA, contrary to express legislative intent. This is best left to the General Assembly to do, should it be so inclined at its 2003 session.
 
[178]    The Michigan Court of Appeals, considered its own grandparent-visitation statute in light of Troxel, and is convincing in its analysis:
 
[179]    This leads us to the question whether we could and should endeavor to interpret Michigan's statute in a manner consistent with the constitution. However, such an effort would require a significant, substantive rewriting of the statute. To render the statute constitutional, we would have to read into it requirements that go beyond the text of the statute and do more than simply define the term "best interests of the child" more clearly. We would have to go from the judicial robing room to the legislative cloak room and we decline to do so. In short, the rewriting of the grandparent visitation statute is a task best left for the Legislature.
 
[180]    DeRose v. DeRose, 2002 WL 100683, ___ N.W.2d ___ (Mich.App. Jan. 25, 2002). Our decision not to legislate is also consistent with the path taken in other jurisdictions when the issue is whether to depart from legislative intent. See, e.g., Florida v.

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[181]    Cronin, 774 So.2d 871, 874 (Fla.App. 2000), Quoting Meyer v. Caruso, 731 So.2d 118, 126 (Fla.App. 1999) ("It is fundamental that judges do not have the power to edit statutes so as to add requirements that the legislature did not include.")); Salem College & Academy, Inc. v. Employment Div., 298 Or. 471, 695 P.2d 25 (1985).
 
[182]    There is one final point. Justice Kennedy observed in Troxel 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 complicated." Troxel at 101 (Kennedy, J., dissenting). See also Punsly v. Ho, supra. Justice Kennedy's observation is instructive. The Linders have been engaged in this struggle over grandparental visitation for four years — more than half of Brandon's life. Until the General Assembly fashions a statute that meets the requirements of Troxel, this matter should be laid to rest.
 
[183]    Reversed and dismissed.
 
[184]    Hannah, J., concurring in part and dissenting in part.

 [185]    JIM HANNAH, Justice, concurring in part; dissenting in part.
 
[186]    I agree that the grandparents-visitation statute may apply to guardians and other nonparental custodians, and on that basis it is not facially unconstitutional. However, I disagree that this statute is unconstitutional as applied.
 
[187]    I do agree that the language of the statute needs revision. If the legislature were to redraft the statute in light of the long history of decisions of this court concerning the right of a parent to raise their child, and the presumption that a parent is acting in the best interests of their child in making decisions concerning the child, as well as the United States Supreme Court decision in Troxell v. Granville, 530 U.S. 57 (2000), the confusion would be resolved, and the task assigned to the trial courts would be much easier and would produce more predictable results. It is also troublesome that our present statute requires the trial court to state in writing why grandparent visitation is being denied, but requires no statement in writing when grandparent visitation is granted.

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[188]    Inclusion of factors the trial court must consider in its analysis required under the statute would also be helpful. See, Martin v. Coop, 693 So.2d 912 (Miss. 1997). Nonetheless, under the facts of this case, I would affirm the trial court's decision holding the statute was not unconstitutional as applied but I would reverse and remand this case for reconsideration of visitation granted to the grandparent.
 
[189]    As the United States Supreme Court held in United States v. Salerno, 481 U.S. 739 (1986), "the mere fact that [a legislative] Act might operate unconstitutionally under some conceivable circumstances is insufficient to render it wholly invalid." Salerno, 481 U.S. at 745. More specifically, a statute may sometimes be preserved by the courts by simply restricting its application. Shoemaker v. State, 343 Ark. 727, 38 S.W.3d 350 (2001). This could be done by requiring application of the preexisting presumption in favor of parents, as was done by the trial court in this case.

[190]    The trial court specifically noted Troxell, supra, and specifically stated its analysis was intended to comply with the requirements set out therein. When the trial court's nine-page decision is read in total, it is apparent the trial court was considering the grandparent-visitation rights under the statute in light of the mother's parental rights and interests. In fact, on page seven, the trial court states, "The behavior of the defendant has reached the level that justifies the court interfering in the parent's liberties to make all decisions for the minor child." The trial court further found that the presumption in Lea Ann's favor was overcome.
 
[191]    A brief review of the record reveals a parent who behaved irrationally in a number of ways, in directly disobeying orders of the court, and in fleeing the jurisdiction. It is apparent that the trial court was considering both Lea Ann's parental rights and the best interest of Brandon. I do not believe that the trial court's decision to leave Brandon in the custody of Lea Ann may be read so broadly as the majority does. Clearly, the trial court is concerned about Lea Ann's care of Brandon in a much more general sense even if the order might have been worded more clearly.
 
[192]    I also write to emphasize that this decision is narrow in scope and applies only to visitation issues arising from application of Ark.

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[193]    Code Ann. § 9-13-103 (Repl. 2002). In other words, this decision is limited to an attempt by grandparents to obtain visitation under the subject statute. The analysis should not be confused and applied in a case where the State is determining custody, and visitation on other basis, including other statutory schemes, or under the State's exercise of its sovereign parens patriae power in protection of the children of this State.
 
[194]    The issue of grandparent visitation did not originate with the subject statute investing grandparents with a statutory right to commence an action to obtain visitation. Mention of visitation granted grandparents may be found in our case law stretching back to the 1950s at the least. Parks v. Crowley, 221 Ark. 340, 253 S.W.2d 561 (1952); Servaes v. Bryant, 220 Ark. 769, 250 S.W.2d 134 (1952). However, as this court stated in Glover v. Reed, 319 Ark. 16, 889 S.W.2d 729 (1994), grandparent rights are derived from statutes or may be conferred by a court of competent jurisdiction. See also, Cox v. Stayton, 273 Ark. 298, 619, 619 S.W.2d 617 (1981). It is not clear that the action pending in the chancery court is simply an action for grandparents-visitation rights under Ark. Code Ann. § 9-13-103. Bill Linder did not even bring his petition under that statute, but rather under Ark. Code Ann. § 9-13-101 (Repl. 2002) "Award of Custody", and it should be noted that the trial court has considered custody, which is not even mentioned in the grandparents-visitation statute. Nothing in this decision prohibits the grandparents from pursuing any other avenues that might be open to them.
 
[195]    The trial court granted the paternal grandfather the same visitation as a noncustodial parent. Unless this visitation was granted in the context of a custody proceeding, it appears to be granted in error. Even then, absent a finding of an extremely close paternal type relationship, which was absent in the facts of this case, this amount of visitation could not have been in the best interests of this child. I would reverse and remand this case for the trial court to reconsider the paternal grandfather's visitation.

SUPREME COURT OF THE UNITED STATES

No. 99-138

October Term, 1999

June 5, 2000

JENIFER TROXEL, ET VIR, PETITIONERS

Vs.

TOMMIE GRANVILLE

Argued January 12, 2000

Decided June 5, 2000

[16] Washington Rev. Code §26.10.160(3) permits "[a]ny 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.

[17] Held: The judgment is affirmed.

[18] 137 Wash. 2d 1, 969 P. 2d 21, affirmed.

[19] 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.

[20] (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, 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.

[21] (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; 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. 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.

[22] (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.

[23] 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.

[24] 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.

[25] 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.

[26] Court Below: 137 Wash. 2d 1, 969 P. 2d 21

[27] Mark D. Olson argued the cause for petitioners. With him on the briefs was Eric Schnapper.

[28] Catherine W. Smith argued the cause for respondent. With her on the brief was Howard M. Goodfriend.

[29] Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine O. Gregoire, Attorney General of Washington, and Maureen A. Hart, Senior Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Earl I. Anzai of Hawaii, Carla J. Stovall of Kansas, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for AARP et al. by Rochelle Bobroff, Bruce Vignery, and Michael Schuster; for Grandparents United for Children's Rights, Inc., by Judith Sperling Newton and Carol M. Gapen; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for the Grandparent Caregiver Law Center of the Brookdale Center on Aging.

[30] Briefs of amici curiae urging affirmance were filed for the American Academy of Matrimonial Lawyers by Barbara Ellen Handschu and Sanford K. Ain; for the American Center for Law and Justice by Jay Alan Sekulow, Colby May, Vincent McCarthy, and John P. Tuskey; for the American Civil Liberties Union et al. by Matthew A. Coles, Michael P. Adams, Catherine Weiss, and Steven R. Shapiro; for the Coalition for the Restoration of Parental Rights by Karen A. Wyle; for the Institute for Justice et al. by William H.

[31] Mellor, Clint Bolick, and Scott G. Bullock; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby, Gregory S. Baylor, and Carl H. Esbeck; for the Lambda Legal Defense and Education Fund et al. by Patricia M. Logue, Ruth E. Harlow, and Beatrice Dohrn; for the Society of Catholic Social Scientists by Stephen M. Krason and Richard W. Garnett; and for Debra Hein by Stuart M. Wilder.

[32] Briefs of amici curiae were filed for the Center for Children's Policy Practice & Research at the University of Pennsylvania by Barbara Bennett Woodhouse; for the Domestic Violence Project, Inc./Safe House (Michigan) et al. by Anne L. Argiroff and Ann L. Routt; for the National Association of Counsel for Children by Robert C. Fellmeth and Joan Hollinger; and for the Northwest Women's Law Center et al. by Cathy J. Zavis.

[33] On Writ Of Certiorari To The Supreme Court Of Washington

[34] Justice O'Connor announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Breyer join.

[35] Section 26.10.160(3) of the Revised Code of Washington permits "[a]ny 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.

[36] I.

[37] 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 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 Wash. 2d 1, 6, 969 P. 2d 21, 23-24 (1998); In re Troxel, 87 Wash. App. 131, 133, 940 P. 2d 698, 698-699 (1997).

[38] 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 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 Wash. 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 Wash. 2d, at 6, 969 P. 2d, at 23; App. to Pet. for Cert. 76a-78a.

[39] 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 Wash.2d, at 6, 969 P. 2d, at 23. On remand, the Superior Court found that visitation was in Isabelle and Natalie's best interests:

[40] "The Petitioners [the Troxels] are part of a large, central, loving family, all located in this area, and the Petitioners can provide opportunities for the children in the areas of cousins and music.

[41] " ... 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.

[42] Approximately nine months after the Superior Court entered its order on remand, Granville's husband formally adopted Isabelle and Natalie. Id., at 60a-67a.

[43] 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 Wash. 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.

[44] The Washington Supreme Court 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 Wash. 2d, at 12, 969 P. 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, 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 "[p]arents 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.

[45] We granted certiorari, 527 U. S. 1069 (1999), and now affirm the judgment.

[46] II.

[47] 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 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).

[48] The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of these changing realities 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 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.

[49] 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 (1997). The Clause also includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests." Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301-302 (1993).

[50] 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 (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 (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 "[t]he 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." Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (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 function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166.

[51] 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 (1972) ("It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] 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 (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 (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 (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 (1982) (discussing "[t]he 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 righ[t] ... 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.

[52] Section 26.10.160(3), as applied to Granville and her family in this case, unconstitutionally infringes on that fundamental parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute's text, "[a]ny 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 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 Wash. 2d, at 5, 969 P. 2d, at 23 ("[The statute] allow[s] 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] allow[s] `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").

[53] 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.

[54] 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:

[55] "[O]ur 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).

[56] Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. See, e.g., Flores, 507 U. S., at 304.

[57] 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:

[58] "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. 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).

[59] The judge's comments suggest that he presumed the grandparents' request should be granted unless the children would be "impact[ed] 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.

[60] 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 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, 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.

[61] Finally, we note that there is no allegation that Granville ever sought to cut off 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 Wash. 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 Wash. 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 Wash. 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) (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").

[62] 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, "[t]he 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 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 spen[t] 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, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a "better" decision could be made. 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.

[63] 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.*fn1 See, e.g., Fairbanks v. McCarter, 330 Md. 39, 49-50, 622 A. 2d 121, 126-127 (1993) (interpreting best-interest standard in grandparent visitation statute normally to 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).

[64] 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 "[m]ore 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. 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 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.

[65] 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.

[66] Accordingly, the judgment of the Washington Supreme Court is affirmed.

[67] It is so ordered.

[68] Justice Souter, concurring in the judgment.

[69] 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 more. The issues that might well be presented by reviewing a decision addressing the specific application of the 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 (1977) (opinion of Powell, J.).

[70] The Supreme Court of Washington invalidated its state statute based on the text of the statute alone, not its application to any particular case.*fn2 Its ruling rested on two independently sufficient grounds: the failure of the statute to require harm to the child to justify a disputed visitation order, In re Smith, 137 Wash. 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, id., 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 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.

[71] 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 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Stanley v. Illinois, 405 U. S. 645, 651 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972); Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Parham v. J. R., 442 U. S. 584, 602 (1979); Santosky v. Kramer, 455 U. S. 745, 753 (1982); Washington v. Glucksberg, 521 U. S. 702, 720 (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, id., at 401. See also Glucksberg, supra, at 761 (Souter, J., concurring in judgment).

[72] 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 Wash. 2d, at 10-11, 969 P. 2d, at 25-27, and that "[m]ost notably the statut[e] do[es] not require the petitioner to establish that he or she has a substantial relationship with the child," id., 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 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 Wash. 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").*fn3 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.

[73] 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 he "could make a `better' decision"*fn4 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 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 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.*fn5 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.

[74] 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,*fn6 see Chicago v. Morales, 527 U. S. 41, 55, n. 22 (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.

[75] Justice Thomas, concurring in the judgment.

[76] 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.*fn7

[77] 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 (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.

[78] Justice Stevens, dissenting.

[79] 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 Court decision that merely requires the state legislature to draft a better statute.

[80] 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.

[81] I.

[82] 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.*fn8 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.

[83] 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 statute.*fn9 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, and an independent assessment of the facts in this case -- both judgments that we are ill-suited and ill-advised to make.*fn10

[84] While I thus agree with Justice 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.*fn11 As I read the State Supreme Court's opinion, In re Smith, 137 Wash. 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, and from the myriad other state statutes and court decisions at least nominally applying the same standard.*fn12 Thus, I believe that Justice Souter's conclusion that the statute unconstitutionally imbues state trial 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 (1999) (Breyer, J., concurring)), is premature.

[85] 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, and remand for further review of the trial court's disposition of this specific case.

[86] II.

[87] 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 Wash. 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 and n. 7 (1997) (Stevens, J., concurring in judgment).*fn13 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.

[88] 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 order visitation continued over a parent's objections -- finds no support in this Court's case law. While, as 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.*fn14 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.

[89] 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.

[90] 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 (1997); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (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 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 (1979); see also Casey, 505 U.S., at 895; Santosky v. Kramer, 455 U. S. 745, 759 (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.).

[91] 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 (1983), 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.' " Id., at 260 (quoting Caban v. Mohammed, 441 U. S. 380, 397 (1979)).

[92] Conversely, in Michael H. v. Gerald D., 491 U. S. 110 (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 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. . id., 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 (1977); Moore v. East Cleveland, 431 U. S. 494, 498-504 (1977).

[93] 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 (1993); Santosky v. Kramer, 455 U. S., at 766; Parham, 442 U.S., at 605; Prince v. Massachusetts, 321 U. S. 158, 166 (1944), and, critically, the child's own complementary interest in preserving relationships that serve her welfare and protection, Santosky, 455 U. S., at 760.

[94] 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.*fn15 At a minimum, our prior cases recognizing 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.*fn16

[95] 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 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.

[96] 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 the first instance the relative importance of the conflicting interests that give rise to disputes such as this.*fn17 Far from guaranteeing that 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. 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.

[97] Accordingly, I respectfully dissent.

[98] Justice Scalia, dissenting.

[99] 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 "othe[r] [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 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.

[100] 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 children*fn18 -- 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 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972). Cf. West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937) (overruling Adkins v. Children's Hospital of D. C., 261 U. S. 525 (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.

[101] 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, 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 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.*fn19

[102] For these reasons, I would reverse the judgment below.

[103] Justice Kennedy, dissenting.

[104] 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:

[105] "Any person may petition the court for visitation rights at any time including, but not limited to, custody 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).

[106] 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 Wash. 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.

[107] 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.

[108] 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 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 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.

[109] 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 v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972); Santosky v. Kramer, 455 U. S. 745, 753-754 (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 given by the precise facts of particular cases, as they seek to give further and more precise definition to the right.

[110] 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 " `[t]he requirement of harm is the sole protection that parents have against pervasive state interference in the parenting process.' " In re Smith, 137 Wash. 2d, at 19-20, 969 P. 2d, at 30 (quoting Hawk v. Hawk, 855 S. W. 2d 573, 580 (Tenn. 1993)). For that reason, "[s]hort 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.

[111] 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.

[112] On the question whether one standard must always take precedence over the other in order to protect the right of the parent or parents, "[o]ur Nation's history, legal traditions, and practices" do not give us clear or definitive answers. Washington v. Glucksberg, 521 U. S. 702, 721 (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. See, e.g., 1 D. Kramer, Legal Rights of Children 124, 136 (2d ed. 1994); 2 J. Atkinson, Modern 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" -- 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 "[h]istorically, 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.

[113] 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, supra, at 168-169; Yoder, supra, 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 best interests of their children," Parham v. J. R., 442 U. S. 584, 602 (1979); and "[s]imply 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," id., 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.

[114] 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 (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.

[115] Cases are sure to arise -- perhaps a 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 (1989) (putative natural father not entitled to rebut state law presumption that child born in a marriage is a child of the marriage); Quilloin v. Walcott, 434 U. S. 246 (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 (1983) (" `[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in `promot[ing] 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 (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 Wash. 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.

[116] 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 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, 50-13.2A, 50-13.5 (1999) (same); Iowa Code §598.35 (Supp. 1999) (same; visitation also authorized for great-grandparents); Wis. Stat. §767.245 (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 (1995).

[117] 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 (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-à-vis a complete stranger is one thing; her right vis-à-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 (1992).

[118] 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.

[119] It should suffice in this case to reverse the holding of the State Supreme Court that the application of 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 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.

[120] In my view the judgment under review should be vacated and the case remanded for further proceedings.

Last Updated:  July 24, 2003