How Are State Courts Doing In Navigating Troxels Ambiguities?
Is this legal landscape too confusing? It is often the case that the Supreme Court announces a general constitutional rule, leaves lower courts to implement it, and then steps back in later to reconcile and clean-up the resulting mess. (In the sexual harassment arena, for example, there was a troubled twelve years between the time the Court announced that employers could be held liable for sexual harassment at work and the time it clarified the specific circumstances under which liability is appropriate.) It may be, however, that – when it comes to third-party visitation with children — state courts are proving themselves capable of implementing a general standard without further guidance from the U.S. Supreme Court. While the outcomes have been mixed, as noted above, a core set of common factors and rationales have emerged to create a sensible framework for analyzing third-party visitation claims – one that does not vary very greatly, as one moves from state to state. Through Troxel,
