Do Grandparents Have the Rights They Should?

The experts report on the state of grandparent rights in the U.S. today

By John Bringardner

See our state-by-state guide to grandparents' rights.

Coming Soon: As a service to our readers, Grandparents.com is establishing the American Grandparents AssociationTM with the goal of becoming a key resource for grandparents who are physically removed from their grandchildren and would like to find a way to visit them.

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.

"I think it's absurd that a boy's father can legally keep his grandparents out of his life," says Kent, who wrote Solomon's Choice: A Guide to Custody for Ex-Husbands, Spurned Partners, & Forgotten Grandparents (Taylor Trade Publishing).

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. Outside the U.S., grandparents may be surprised to learn how limited their rights are.

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.

Comments

In the Troxel v Granville case...the US Supreme Court cited all fifty state grandparent visitation statutes and hold that they WERE NOT unconstitutional. Judge O'Connor writing for the majority stated: "Because we rest our decision on the sweeping breadth of sec .26.10.160 (3) and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court - whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. we do not, and need not, define today the precise scope of the parental due process right in the visitation context...Because much state-court adjudication in this context occurs on a case-by case basis, we would be hesitate to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter."

Should a parent, only one in the chain of three generations, be given constitutional sanction to amputate the family unit of the child? Fortunately the U.S. Supreme Court said NO!!! By holding that these cases must be decided on a "case by case basis", the majority of the Supreme Court held that the millions of grandparents and grandchildren who have been reunited because of laws protecting their rights, will not be threatened with amputation by critics who claimed that these laws were unconstitutional. Contact the Grandparent Rights Organization and fight for your rights as a light in your grandchildren's lives!

dengles1@gmail.com on 2014-10-28 16:16:00

I am a grandmother who helped raise my grandson and who mother lived with me while her husband was in the service. My daughter never resided with her husband but let him take my grandson when get was a little over a year old stay with him because my daughter had mental challenges and wanted the father to be more involved in showing fatherly duties. Well he never returned him! He kept him away from his own mother and us! In August of 2012 my daughter passed from an accidental overdose. She never got over never seeing her baby. My so called soninlaw has let me see my grandson once!!! He is 4 years old. He never came to see his own wife when she passed. And Yes he was still married to her and still in the army...he never called me nothing.... in my mind I can never forgive such behavior and there is no reason for any of it. If someone is showing that they are getting help in my daughters case addiction and had support from her family... there is no reason to keep her child from her and certainly not when she leaves this world thru death! It hurts me that my grandson is the only memory I have left of her and she lives on thru him...my grandson father has literally removed him from our lives for no godly reason and these so called grandparents rights do not apply I am finding out!!! I DON'T even know where my grandson resides and until I find that out I can't even hire a lawyer to even help me!!! I just pray!!! That's all I can do Right now. I live in Indiana and my grandson is somewhere either in Georgia or maybe Florida. I NEED HELP AND HAVE NO ONE TO TURN TO! I guess a private detective is my next move. I've not only lost my 23 year old daughter ..I'VE lost my only grandchild!

caronvaughn62@gmail.com on 2014-10-04 20:22:10

Why can't we have the right to visit our grandchildren? I ask this because when our children need a baby sitter they call the grandparent first in a lot of case's. Then it gets taken away all because we have no right to see them. I can under stand in some case's the parents are no longer together and one gets a full custody of the children do to drug's. But why take the children a way from the grandparent? We as grandparents didn't do anything wrong. Here is My case.
We lived next door to our daughter and her four children. Yes she was married to him. My husband got sick and we where told he was going to die. So I sold my house and moved to Tennessee where my husband wanted to die. It wasn't long after we had moved my son-in-law at the time moves our daughter and our grandchildren in a rat infested house. Then he gets her drunk and beats her up. Yes she had him put in jail for it. She files for divorce and some how the judge gives him joint custody. She gets them six months and he gets them six month. He took up on his self to keep the children away from her and us. He said the children have night mares. When we got to see the children back in June of last year, I had noticed that our oldest granddaughter was with drawn. My ex- son-in-law said she was to have glasses but medicad only pays for one set of glasses and she hasn't been back to the eye doctor since. our grandson hasn't seen a dentist and he has rotten teeth. Any way there is more to this story and it is long. the short story is our grandchildren are not being taken care of and it hurts to know that and not being able to do something about it. Down deep I know our oldest granddaughter has been touched in a bad way and I want to know for sure if she was. It sickens me to no end that our ex-son-n-law is hiding our grandchildren from us and their Mother.

sweetlove2 on 2014-02-16 13:40:39

I have 4 grandchildren that I am seeking custody of they were taken away 2 years ago and at the time there were only 3 and then last year the newest one was taken right for the hospital the day he was released. I have not seen johnathen since he was 2 days old and now he is a year old, I had the two girls from the time they were born till the time they took them from my daughter, D.H.S in Standish Michigan has prevented me from seeing the kids and they have treated me so unfairly, they think I should not be around the kids , they keep giving numerous reasons why I should not be a good candidate for the kids but when this all started and cps got involved they allowed the kids to stay with me they knew all of the situations and agreed they were in a safe inviorment, then a physical altercation between my daughter and her boyfriend( which is johnathen's dad) but my daughter and him had a physical altercation in front of my grandson that lead to the cops showing up at their house 5 times in one night that was gounds to remove all 3 of the kids and I had the 2 girls with me in bay city Michigan, but they still removed the kids and now Im not allowed to see them, this town is so corruput that its pretty sad I wonder what ever happened to family first, they never tried to keep the family together or put any programs onto place to try to keep the kids with their family the lady that has the kids in foster care she wants to adopt them and she has been a foster care mother for years and has always wanted a child and now they are doing everything in their power to make sure she gets to keep the kids so I am waiting on a finialized report so my attorney and I can take it to court of appeals and we have been waiting on this report for 2 moths and sent e-mails requesting this report and not response, but all the way through all of this they have worked so hard to keep us apart and me and the oldest kids are very close they were always with me at my house and I have totally supported them since they have been in the world and now im treated like a deivet im so sick of this, and Michigan laws suck they don't protect family only if its conveienent for them, I would love to tell my story to the media so if anyone has any ideas please shoot me an e-mail or get a hold of me please thank you Donna Cuykendall

audryonnasgrandma on 2014-02-15 10:00:16