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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.
How well do you get along with your grandchild and other family members? Want to know if your personalities mesh?Find out here.