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A U.S. Supreme Court decision in 2000 put in motion a roiling debate that pits parents against grandparents in a struggle for child visitation rights.
Richard Kent, a family lawyer at Fairfield, Conn.-based Meyers Breiner & Kent, frequently goes to courtroom battle for grandparents seeking visitation with, or custody of, grandchildren.
"The state of grandparents' rights is terrible," says Kent. Under the current laws, if a couple's adult daughter dies, he says, those grandparents could be denied visitation with their grandchild by the child's father.
Even if they had what most people would consider a classic grandparent-grandchild relationship and, let's say, saw their grandchild every Sunday afternoon. But in the eyes of Connecticut law, says Kent, unless grandparents have functioned as de facto parents — meaning they lived with their grandchildren or took care of them while the parents were at work — they are treated no differently than strangers.
Families crumble for any number of reasons: divorce, the death of a parent, drug and alcohol abuse, incarceration. Grandparents in the U.S. do have rights and can seek visitation with grandchildren, but those rights vary from state to state. Understanding your basic rights can help ensure that your relationship with the grandchildren doesn't end should that with their parents. Of course, every case involves a unique set of facts and grandparents who find themselves suddenly cut off from grandchildren should consult a lawyer to discuss the course of action their specific situations require.
When Grandparents' Rights Changed
In June 2000, the U.S. Supreme Court issued a 6-3 decision on grandparents' visitation rights in the Troxel v. Granville case. This canceled out a Washington State law that permitted judges to grant visitation to any interested party so long as the visits were in the best interest of the child — even if the parents objected.
The Troxel v. Granville decision was ambiguous because while the majority of the justices agreed that Troxel should be decided a certain way, each had a different reason for doing so which resulted in six written opinions.
This makes it hard for state courts to interpret the decision. Despite this and the narrow set of facts in which the case dealt, Troxel v. Granville has become the basis for all subsequent discussion of grandparents' rights.
Parent Vs. Grandparent: Whose Call Is It?
The case dates back to 1993, when Brad Troxel committed suicide in Washington State. Brad left behind two daughters and their mother, Tommie Granville, whom he had never married. Brad and Tommie were estranged at the time of his death, but Brad's parents, Gary and Jenifer, kept visiting their grandchildren after the suicide. When Tommie remarried and her new husband adopted the daughters she'd had with Brad, Tommie limited the grandparents' visits.
The Troxels wanted more time with their grandchildren and went to court for it, citing Washington State's third-party visitation law, which said they had the right to visit so long as it was in the best interest of the children. A trial judge agreed.
The Supreme Court, however, did not and found the Washington State law "breathtakingly broad," arguing that it infringed upon parental rights. It struck down the Washington Supreme Court’s decision, which had granted the Troxel grandparents rights to more visitation.
While groups such as AARP filed court papers in favor of grandparents' rights, the parents' rights groups hailed the Supreme Court decision in favor of Tommie Granville a victory. Groups such as the Coalition for the Restoration of Parental Rights and the American Civil Liberties Union applauded the decision which gave “fit” parents the final say on how to raise their children — including whether grandparents could see them.
Laws Differ State by State
At the most basic level, all states require grandparents to prove that the visits they seek are in the best interest of the grandchild. This generally means grandparents must show that their visits won’t be harmful in any way, and that they aren’t abusive or otherwise dangerous to the child. Beyond this initial hurdle, each state has a different threshold for when it will allow grandparents to take a case to court.
Some states are more permissive when it comes to filing for visitation. Connecticut, Hawaii, Idaho, Kentucky, Maryland and New York require only the ground rule mentioned above — that visitation is in the best interest of the child — before grandparents can take a case to court.
Other states set more stringent requirements allowing grandparents to file a suit only if they were denied visitation altogether. Under current laws in Alabama, Florida, Iowa, Mississippi, Oregon, Rhode Island and Utah, grandparents don't have a case if parents permit them to see their grandchildren — no matter how infrequently.
In Minnesota and Pennsylvania, grandparents cannot make a legal case unless their grandchildren previously lived with them.
Burden of Proof
The most restrictive states, such as Florida, Minnesota and Pennsylvania, require proof that grandparents have a parent-child relationship with their grandchild, meaning they have often stood in for the child’s parents.
Depending on the state, these requirements can be as extreme. Grandparents may have to show they took care of the child full-time while parents were gone for extended periods of time or that they participated in typical parental duties — taking the child to doctor appointments or attending PTA meetings.
It's difficult to document a pre-established relationship with a grandchild, says Marsha Temlock, MA, the psychologist who wrote Your Child’s Divorce: What to Expect — What You Can Do (Impact Publishers, 2006). "You've got to get people to sign affidavits that document you've visited the children a certain number of times, or you may have to bring the children into the courtroom," she says.
The Trickle-Down from Troxel
The law is evolving in response to Troxel, on a state by state basis. The Ohio Supreme Court issued a 2005 decision finding that Troxel does not affect Ohio's laws on visitation rights. In Harrold v. Collier, Ohio's court differed from Troxel when it decided that grandparents could visit the children of their deceased daughter — against the wishes of the children's father.
In contrast, recent cases in the Texas Supreme Court have kept the state's grandparents' visitation laws in line with Troxel. In 2005, the Texas state legislature amended its old laws on grandparents' rights, stiffening the requirements by permitting grandparents access over a parent's objection only if denial of access would "significantly impair the child's physical health or emotional well-being."
The word "significantly" sets an extremely high bar for grandparents, says family lawyer Jimmy Verner of Dallas-based Verner & Brumley. "Your grandkids might be sad they won't be able to see you, but that's just not enough," he says.
Unless there is uniform guidance on a national level, say Kent, state laws will continue to fluctuate in ways that potentially harm grandparents’ rights.
Who's Guarding Grandparents?
On a national level, Senators Hillary Clinton (D) of New York and Olympia Snowe (R) of Maine introduced a bipartisan bill in March 2007 that could assist grandparents and other relatives taking over primary caretaker responsibilities for children. The Kinship Caregiver Support Act does not address custody or visitation issues specifically, but does offer support for the more than 6 million children in the United States living in households headed by grandparents or other relatives by expanding access to federal assistance programs for schooling, medical treatment and legal services.
The bill, supported by AARP and grandparents’ lobbying groups such as Generations United and Grandparents for Children's Rights, is still in the first stages of the legislative process and could undergo several revisions before going to a vote in the full Congress.
On a grassroots level, there is growing support for grandparents facing visitation or custodial issues with their grandchildren. AARP provides some informational resources on a national level, as does Grandparents Rights Organization, a Michigan-based nonprofit. Additionally, local groups such as California-based Grandparents as Parents, offer support programs to lend a caring hand to grandparents coping with the challenge of seeking visitation and custodial rights in their state.
John Bringardner is News Editor at Law.com. Additional reporting by Elena Naughton, an attorney and freelance writer. She lives with her husband and daughter in New York City.
Who should have the final say on child visitation?
521 Answers
A) The Grandparents
9.8%
B) The Parents
25.3%
C) This should be decided case-by-case
64.9%
If a grandparent has been in their grandchildrens life and they are very close and had been there when the parent needed help why can't the grandparents have rights? I think it is cruel when a parent keeps them away.
I think it should be decided case by case. There are so meny different things that may be going on in with each family. They should look more at what's best for the children than the rights of the parents. Parents sometimes use the kids as a weapon against the Grandparents and this only hurts the children even more.Some one needs to speak for the children, they are the ones who need the protection from any type of abuse at all, even emotional abuse. That hurts them too.
If it can't be agreed upon by the parents or third party with the parent and it apears in anyway that they do not have the best interest of the children at heart then the court should appoint a mediator and an attorney for the child(ren) to resolve. Especially in the case where PAS may exist. Many grandparents are in situations where they are refused visitation when "gifts" as the court calls it are no longer available to the custodial parent or that same custodial parent tries little by little to cut the grandparents out of the child(ren's) lives.
I think everyone is forgetting one thing in this and that is what keeping a grandparent away from their grandchildren is doing to the grandchildren. We live quite a distance from all our grandchildren. We have some that we talk to by phone and they come visit all the time and then we have others that for quite some time were not allowed to keep in touch with us. Until recently, do to some situations, we weren't allowed to see them either. I thank God that has changed but my point in this is look at all the years those kids have missed getting to know and be loved and to love in return their grandparents just for some petty differences. If the law wants to be fair, then they should stop and think about the kids they are hurting who need a grandparents love. Its the children who suffer for these petty grievances in the long run.
In California the courts use pretty much their own discretion but very seldom are grand parents awarded any rights over the objection of even one parent. In some cases that can be their own child getting back at them for something. The courts in my county (I'm a family law paralegal and see lots of cases) are of the opinion that the parents have a constitutional right to determine what is best for their children. Unfortunately, there are parents and then there are parents. We know there is no aptitude test for being a parent. Just about anyone can take their baby home from the hospital without a clue as to what it takes to raise a happy and healthy child. Only in cases where the courts take jurisdiction over unfit parents does the subject of parenting classes or early childhood development courses ever come up.
