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Grandparents' Rights to Visitation

Contents

Background

Historically, following the death of a child, an acrimonious divorce leaving custody with a child's former spouse, or the breakdown of their relationship with a child, grandparents have been without any legal right to secure granparenting time visitation with their grandchildren. With the aging of the population, and with increased divorce rates, state legislatures started to enact statutes which granted grandparents some rights to seek court-enforced time with their grandchildren, even against the wishes of the grandchild's parents. The circumstances under which grandparents could seek grandparenting time, and the nature and amount of grandparenting time which could be made available, varied from state to state.

In 2000, in the case of "Troxel v Granville", the United States Supreme Court addressed the issue of third party rights to seek court-enforced time with children. Within this context, a "third party" is somebody other than the child's parents. The Washington State statute examined in Troxel was not technically a "grandparenting time" statute, as it allowed “[a]ny person” to petition for visitation rights “at any time”. The Supreme Court had little difficulty in determining that the Washington statute was overbroad. While the Troxel opinion is a "plurality" decision, meaning that there is no single opinion of the court which was signed by a majority of the Justices, the decision made clear that there were certain prerequisites that grandparenting time statutes must meet in order to be constitutional. Six Justices joined opinions holding the Washington statute to be unconstitutional. While there can be significant divergence of opinion with regard to what Troxel means, many practitioners believe that it requires

Arguments For Grandparents' Rights

Advocates of grandparents' rights take positions including the following:

  • Grandparents may provide a stabilizing role in their grandchildren's lives, particularly after a divorce or crisis (such as the death of a parent).

  • Where grandparents have been involved in a child's life, it can be traumatic to the child to suddenly be denied access.

  • The mere fact that parents are divorced, or the grandparents's child dies or is incarcerated, should not automatically serve to grant the custodial parent the right to sever a positive relationship between the grandparents and their grandchildren.

Arguments Against Grandparents' Rights

Opponents of grandparents' rights take positions including the following:

  • The the state has no business interfering with the child-rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted.

  • Some grandparents are excluded from their grandchildren's lives for good cause - for example, because they were abusive to their own children and cannot be trusted with the grandchildren. Some grandparents interfere with ordinary parental decision-making, or badmouth one or both parents to the grandchildren, creating unnecessary conflict.

  • Where conflict exists between parents and grandparents, even if the parents are being unreasonable, court interference can destabilize the home environment of the grandchildren.

The State of the Law

Following Troxel, many state courts have addressed the constitutionality of their grandparenting time statutes, and many state legislatures have revisited (or are in the process of revisiting) their statutes, either following or in anticipation of court decisions finding them to be wholly or partially unconstitutional. It remains possible that the Supreme Court will revisit this issue in the future, as this new generation of grandparenting time statutes faces constitutional challenge. Until that time, the circumstances under which court enforced grandparenting time can be obtained will continue to vary from state to state, depending upon each state's interpretation of Troxel, although perhaps to a lesser degree than prior to the Troxel decision.

It is likely that most statutes created or amended after Troxel will require first that there be some form of break in the parent-child relationship - perhaps a divorce, perhaps the placement of the grandchild in the custody of the grandparents, or perhaps the DEATH - and that the grandparents provide "clear and convincing evidence" that grandparent visitation is in the best interests of the grandchild. Some argue that Troxel demands that the grandparents demonstrate that the child will suffer harm in the absence of grandparental visitation, although it does not appear that a majority of states will require a showing of harm.[FN1]

Considerations for Grandparents

Grandparents who are actually caring for their grandchildren should take affirmative steps to protect their rights. This can often be done by obtaining legal guardianship over the grandchildren, or by actually obtaining an order of custody. Absent a formal legal grant of rights, grandparents may find it much more difficult to preserve their relationship with their grandchildren, or to protect their grandchildren from being restored to the custody of a parent who is not ready to assume responsibility for them. (For example, grandparents may care for grandchildren while a parent goes through rehabilitation for a drug addiction, and have legitimate concern that the parent has relapsed, but without a legal grant of custody or guardianship be without any power to prevent the parent from taking the grandchildren out of their care.)

It is usually best to try to resolve grandparenting time problems amicably, as opposed to through the courts. It may be that the parent who is refusing access will be amenable to having the dispute mediated by a qualified professional. It is usually best not to make threats, and to make litigation a last resort - to be used only when all else has failed.

Don't make negative comments to your grandchildren about their parents, or make them part of an emotional conflict between you and their parents. The children don't need the stress, and that is perhaps the fastest way to get their parents to decide that your grandchildren don't need you in their lives.

Don't use access to your grandchildren as an opportunity to interfere with the way in which your grandchildren are raised by their parents. The parents have the right to make ordinary parenting decisions, and are likely to resent your attempts to interfere with their parental authority. Please note that this does not mean that you should not intervene or seek the involvement of a child protective agency in the event of abuse or potential harm to a grandchild.

Your grandparenting time will ordinarily be governed by the laws of the state where your grandchildren reside.

Footnotes

1. When the ACLU submitted a brief to the Supreme Court in Troxel, it argued that the grandparents should be required to show that a denial of grandparental visitation would substantially harm a grandchild before grandparenting time should be allowed.)