Historically, following the death of a child, an acrimonious divorce that resulted in a custody placement with a child's former spouse, or the breakdown of their relationship with their own child, grandparents had no legal right to secure grandparenting time visitation with their grandchildren. With the aging of the population, and with increased divorce rates, state legislatures started to enact statutes that 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 enormously from state to state.
In 2000, in the case of Troxel v. Granville,1 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, six Justices joined opinions holding the Washington statute to be unconstitutional. The Troxel decision made clear that there were certain prerequisites that grandparenting time statutes must meet in order to be constitutional:
A trial court must defer to the decisions of a fit parent about third party visitation, including the decision to deny access; and
Any third party custody or visitation statute must include a presumption of parental fitness, that can only be overcome if the third party proves by clear and convincing evidence that a denial of their access to the child will create a substantial risk of harm to the child or that the parent is unfit.
The standard set by Troxel makes it very difficult for a third party, no matter how loving or concerned, to obtain visitation rights to a child against the wishes of the child's custodial parent.
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 grandparent'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.
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.
Following Troxel and subsequent state court rulings relating to the constitutionality of their grandparenting time statutes, most state legislatures have revised their statutes that relate to third party custody and grandparent access. States laws typically codify the requirement that the third party seeking visitation rights prove by clear and convincing evidence that the parent or parents denying access are unfit or prove that denial of access would be harmful to the child.
Statutes may narrow the circumstances in which a third party may seek visitation rights, for example, to cases in which there has been a break in the parent-child relationship such as divorce or the death of a parent. Statutes may consider whether the person seeking access has been a member of the child's household or has served as the child's primary custodian.
Although it has been argued by opponents of third party rights that Troxel requires that the grandparents demonstrate that a child will suffer harm in the absence of grandparental visitation, state courts have not required a showing of harm.2
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 state courts have on the whole been deferential to the Troxel decision.
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 during the period of time the children are in their care.
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.
Your grandparenting time will ordinarily be governed by the laws of the state where your grandchildren reside. If you obtain a grandparenting time order in one state, and the children are later relocated to a different state, you will likely have to relitigate the issue of access in the children's new state before you can enforce your rights, with a risk that the new state won't be receptive to your petition due to alleged changes in the children's circumstances since the prior order, due to differences in state law, or due to the beliefs of the judge who is assigned to hear your petition.
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 refrain from intervening or seeking the involvement of a child protective agency in the event of abuse or potential harm to a grandchild.
1. Troxel v Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
2. 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.)