CH 5 Grandparent Visitation

Would you allow a grandparent to have visitation rights with a grandchild over the objections of the parent(s)? What factors do you think a court should weigh in making these determinations?

Include evidence, examples, particular laws, or references from the textbooks with your answers.

Chapter Five . Child Custody 236 The Custodial and Visitation Rights of Grandparents between a and Stepparents ing reality in the upbr In loo Until this point, the focus of this chapter has been on custody and visitation questions: disputes between divorcing parents. In these disputes, the rights of each tion rights, party, at least in a formal legal sense, are deemed to be equal. Each is enti. dispute? TH tled to try to establish that an award of custody to him or her would further Standing is the best interest of the child. In this section, we turn to a consideration cient stake i of custody and visitation disputes between parents and "nonparents"_ tain a legal namely grandparents and stepparents.77 Some state In light of the fact that parents have a fundamental constitutional right such as divo to direct the upbringing of their children, including deciding who will have ing. In other access to them, in a dispute between a parent and a "nonparent," there is an more genera automatic preference in favor of the parent based on the assumption that under which he or she is best able to meet the child's needs. Accordingly, as discussed family priva in this section, the basic rule is that a nonparent must establish something such as a pre more than best interest in order to maintain an ongoing relationship with a Once it child in the face of opposition from a parent. tion rights, th the dispute. ever, the dis Grandparents something m tionship with At common law, grandparents had no legal right of access to their of proof, mos grandchildren. Parents were said to have a moral but not a legal obliga- the denial of tion to permit grandparents to see their grandchildren. In essence, this As grand meant that a grandparent's right of access was derivative; he or she had grandchildren no direct link to the child as the connection flowed through the related ter (or by a da parent. This rule was based on a number of considerations, including ing the consti the right of parents to control the upbringing of their children and the such laws wer concern that a legal dispute between grandparent and parent would be Initially, court destructive to the child, particularly if the child blamed him- or herself any intrusion for the controversy. children was This approach began to change in the 1960s, and today all states have with his or her statutes that, to varying degrees, modify the common law rule of no access in the case of Some states have enacted specific grandparent visitation statutes, while the grandparer others include grandparents within a broader third-party visitation stature While the The enhanced legal status of grandparents reflects a number of develop without un ments. First, with the graying of the population, the organizational and In an political clout of senior citizens, an important force behind these laws, has family, it is increased. Second, as the divorce rate has risen, increased attention has strengthen focused on the importance of providing children with con h continued access between a to essential relationships in order to help buffer the dislocation of divorce ent and gra And closely related is an increased awareness of how important the bond between theThe Custodial and Visitation Rights of Grandparents and Stepparents 237 between a grandparent and child can be.78 These statutes reflect the chang- ing reality of the U.S. family and the often-vital role that nonparents play in the upbringing of children. In looking at grandparent visitation statutes, it is helpful to ask two questions: (1) Under what circumstances may a grandparent seek visita- tion rights, and (2) what substantive standard will be used to resolve the dispute? The first question is often characterized as a matter of standing. Standing is a jurisdictional concept that requires a person to have a suffi- cient stake in the outcome of a controversy in order to be allowed to main- tain a legal action; if a party lacks standing, his or her action is dismissed. Some state statutes require that there be some kind of family disruption, such as divorce or parental death, in order for a grandparent to have stand- ing. In other states, however, the applicable statute gives grandparents a more general right to seek visitation without specifying the circumstances under which a petition can be filed; however, based on considerations of family privacy, some courts have sought to impose limiting qualifications, such as a prerequisite of family disruption. Once it is determined that a grandparent has standing to seek visita- tion rights, the next consideration is the standard to be used for resolving the dispute. Some states have adopted a best interest standard (see, how- ever, the discussion of Troxel), although judges generally require proof of something more than simply that the child would enjoy a continued rela- tionship with the grandparent. Other states have adopted a higher burden of proof, most frequently by requiring the grandparent(s) to establish that the denial of visitation rights would harm the child. As grandparents began turning to the courts to gain access to their grandchildren after contact had been denied or limited by a son or daugh- ter (or by a daughter- or son-in-law), some parents responded by challenge ing the constitutionality of the grandparent visitation laws, arguing that such laws were an unwarranted intrusion into the realm of family privacy. Initially, courts tended to uphold the validity of the statutes, finding that any intrusion into a fit parent's right to direct the upbringing of his or her Children was offset by the benefit to the child of a continued relationship with his or her grandparent. As expressed by the Kentucky Supreme Court " the case of King v. King, these early decisions tended to sentimentalize the grandparent-grandchild relationship: While the Constitution . . . does recognize the right to rear children without undue governmental interference, that right is not inviolate. . . . In an era in which society has seen a general disintegration of the family , it is not not unreasonable for the General Assembly to attempt to Strengthen familial bonds. . . . There is no reason that a petty dispute between a father and son should be allowed to deprive a grandpar- font and grandchild of the unique relationship that ordinarily exists between those individuals . ...Chapter Five . Child Custody 238 If a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent. . suici Each benefits from contact with the other. The child can learn respect invigorated then a sense of responsibility and love. The grandparent can be invig acces by exposure to youth, can gain an insight into our changing society, and can avoid the loneliness which is so often a part of an aging parent's life. These considerations by the state do not go too far in intruding into statin sions the fundamental rights of the parents.79 'better In 1993, however, starting with the decision of Tennessee Supreme invali Court, in the case of Hawk v. Hawk, courts began to give greater conside only eration to the rights of parents to decide who should have access to their Court a judg children: a fit p . . Bill and Sue Hawk argue that grandparent visitation is a "com- pelling state interest" that warrants use of the state's parens patriae O power to impose visitation in "best interests of the children."... We ita find, however, that without a substantial danger of harm to the child, . . tio a court may not constitutionally impose its own subjective notions of pa the "best interests of the child" when an intact, nuclear family with fit, ess married parents is involved. col The requirement of harm is the sole protection that parents have cor against pervasive state interference in the parenting process. file . . . [Ijt is not within the power of a court, . . . to make significant the decisions concerning the custody of children, merely because it could make a better decision or disposition. The State is parens patriae and As always has been, but it has not displaced the parent in right or respon tion is p sibility. .. . 80 real wei tion that The court goes on to critique the Kentucky Supreme Court's King lower co decision: granted, [The King majority engaged in a sentimental reflection on the "special disprovin bond" between grandparent and grandchild. . . . In his dissent, how- It is ever, Justice Lambert disputed the constitutionality of a statute "which made cle has as its only standard the subjective requirement of 'best interest of ple that a the child'" adding that "mere improvement in quality of life is not a on the rig compelling state interest and is insufficient to justify invasion of consti- allowing tutional rights."81 minimum In 2000, the U.S. Supreme Court, in the case of Troxel v. Granvia a fit paren entered the fray. Under consideration in this case was the star, deference Washington's opened-ended statute that gave "any person" the rite understoo more than petition the court for visitation rights at "any time" based on ed on the bestinter est of the child. This case involved an unmarried couple with two dress hildren is cut off, i After the relationship ended, the father moved in with his parents. her the result his children on a regular basis, with the visits often taking place at hitta siderable v ents' home. About two years after the separation, the father comm constitutionThe Custodial and Visitation Rights of Grandparents and Stepparents 239 suicide. The grandparents continued to visit with the children. The mother then decided to limit the visits, and the grandparents sued for increased access to their granddaughters. The Washington Supreme Court declared the law unconstitutional, stating, "It is not within the province of the state to make significant deci- sions concerning the custody of children merely because it could make a "better' decision."$2 The U.S. Supreme Court agreed that the statute was me invalid, but it did so on far narrower grounds, finding that it was invalid sid- only as applied to the facts of the case before it. Of primary concern to the heir Court was the "sweeping breadth" of the statute, which effectively allowed a fit parent: a judge to substitute his or her views regarding visitation for the views of Once . . . the matter is placed before a judge, a parent's decision that vis- itation would not be in the child's best interest is accorded no deference. . . . Instead, the Washington statute places the best-interest determina- tion 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 nec- essarily 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. 83 As the Court explained, an exercise of such unfettered judicial discre- tion is precisely what happened in Troxel. The trial court failed to give any real weight to the mother's views, thus disregarding the usual presump- tion that fit parents act in the best interest of their children. Moreover, the King lower court seemed to have presumed that the visitation request should be granted, thus placing "on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters."84 It is critical to recognize that in deciding this case, the Troxel Court made clear that it was not declaring as a matter of constitutional princi- ple that all third-party visitation laws are an impermissible encroachment on the rights of parents, or that actual harm must be established before tie allowing visitation over the wishes of a parent. Rather, it held that, at a minimum, some "special weight" must be given to the stated preference of a fit parent. Read broadly, it can be understood to require almost complete anville, deference to parents, so long as they are fit; read more narrowly, it can be state of stood to place a burden on grandparents to show that something ight to more than the child's best interest, such as proof of actual harm if visitation st inter- is cut off , is off, is needed in order to override the wishes of a fit parent, 85 In short, hildren. ghe result is far from definitive, and states thus continue to exhibit con- He saw siderable variability in their grandparent visitation laws within the broad his par- constitutional parameters established by the Court in Troxel. mmitted