Troxel 2

By Washington State Representative Rob Chase

In 2000, a Washington State Supreme Court Family Law case went to the US Supreme Court. It became known as Troxel vs Granville. The Court held that parents have a fundamental right to direct the upbringing of their children, and that right is protected by the Due Process clause of the Fourteenth Amendment. After that, everyone went on their merry way. Until that is, attorney Daniel Sturtevant, wrote a 200+ page abstract applying Troxel v. Granville to family law and child custody. Sturtevant’s interest was that he was embroiled in a child custody case. This paper became known as Troxel 2.

Last summer, I was contacted by Attorney Jack Loop, who is also going through a child custody battle. He has been trying to get Troxel 2 implemented in the Judicial System, and asked me in my capacity as a Washington State Representative and activist with the Spokane Fatherhood Initiative, if I could help?

As an aside, Spokane Fatherhood Initiative is a nonprofit founded to help fathers obtain visitation rights and/or partial or full custody of their children. Around 90% of incarcerated males had no father or an abusive father. Such fathers who have lost custody of their children want to end the generational curse and raise their children with stronger values. Spofi gives classes designed by experts to teach them how to be fathers. Having taken these classes demonstrates to judges that they are serious about being a fit parent.

While no parent is perfect, Troxel 2 starts from the premise that most parents can be fit parents, unless there is concrete proof they are not. It is reasonable to believe that fit parents will cooperate in doing what is best for their child out of love. Per the 1st Amendment, there will be freedom of speech, so no parent will face jail unless there is concrete proof of harm, and due process per the 14th Amendment.

When parents make a child, there is an accompanying societal contract that parents will meet that child’s needs, nurturing them physically, mentally, and spiritually until adulthood and, hopefully, lifelong.

I was intrigued by this challenge, so I introduced WA State  House Bill 2735, aka Troxel 2. This bill was too late to make it to the floor, but Civil Rights and Judiciary Committee Chair Jamilla Taylor was gracious enough to allow a hearing on February 25th after the cutoff had expired. There were over 750 for, with only 6 against, from those watching the hearing. There are other states starting to wake up to Troxel 2, notably Idaho and Oregon.

Troxel 2 puts a Constitutional Floor of a starting point of 50/50 custody for fit parents, along with:

• a presumption of parental fitness;
• equal standing for similarly situated parents;
• Any intrusion on the parent-child relationship must be the least restrictive to parental rights.
• a parental duty to cooperate;
• and the requirement that court orders must be clear and contestable.

Following these precepts would significantly reduce the need for attorneys, Guardian Ad Litems, and psychologists.

If we can improve the bill to reintroduce it next session in 2027, it will make child custody disputes less painful and more healing, not to mention being in the child’s best interests.