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

So my mother in law is trying to get rights to see our daughter but she is mentally unstable before my daughter was born she jumped on my husbands truck whose still alive and we are married and living together, and she was jumping crazy on the back of his truck screaming grab the gun so i can kill myself in front of you. Also she has non stop harrassed me and my husband since my daughter left the hospital after being born shes called me a bitch in front of my child whose now 2 and she knocked on our door just december 3rd and when i told her she needed to leave and shut our door and started banging on it and screaming to take our daughter calling me a bitch saying go ahead call the police i will tell the judge all about you and scaring my daughter. who is still afraid of anyone knocking on our door and is scared of our door. shes has threatened to take our kid or have someone take our daughter for a long time and i dont feel safe with her being around my daughter she thinks its funny that she says bad things about her grandsons mother and he said one day he hated his mother and she praised him for it. please help? and shes doing this because i went for a protection order that got dropped because my witnesses to all her harrassment didnt show to the court date. also she puts my husband down and has since he was a kid and his brother who lives with her they fist fight, his mother and his brother, and my husband has grown up seeing this since he was younger and never cared that it scared my husband. and they still do it i walked in one day before my daughter was born to her choking my husbands brother and him choking her back. His brother has broken walls in the house and the door glass and she Didnt care she got mad cause i called the cops and he was arrested but he attacked my husband grabbing his head and screaming at him for no reason. do you think she would win if my husband says these things in court or should we get a lawyer And she hasnt seen my daughter in over a year because i dont feel safe with her but shes tried but its not safe for my daughter.

motherof231211 on 2013-02-03 06:20:19

I'm new to this group but not to being restricted as grandparents. My daughter is mentally ill and in the last four years have slowly stopped taking her meds. Our now ex-son-law was very good at keeping her centered, but another man came along in my daughter's life and everything has changed. The new husband is arrogant and a bully. Our daughter was already difficult to get along with, but now it is impossbile for us to see our 4 granddaughters (3 of them have our ex-son-in-law as their father). She along with her new husband have filed an unwarranted order of protection on the girls' father before the holidays. We were seeing them through their father. Our ex-son-in-law is now fighting for his parental rights. I have been an elementary school teacher for over 20 years and my granddaughters attended the school where I taught. They used to come in and hug me and love hanging out with me at school. Since this new man came into our lives, everything has changed. My husband and I have come to terms with this as the granddaughters have been totally brainwashed by our daughter and new husband to hate us and their real father. Our daughter's bipolar illness cause her to be paranoid and lie about everything. Her reality is not real, and judges haven't seen or know about her illness. The one judge is getting tired of her filing papers into the court system. She even filed an order of protection on me after I saw the girls at their school in a play. It wasn't granted but it is very hurtful. I have been told to wait until they grow up and they will understand some day. In the meantime, I miss birthdays, holidays and more, but at least I enjoyed them from birth until the youngest was 7 years old. The oldest is now 14 years old. My husband and I have some peace now, resolved in the situation of waiting until they get older. I never dreamed that adult children can be so selfish, disrespectful and hateful towards their parents. Where did our genereation go wrong? Or, did our liberalism allow such disrespect for our elders?

danirene on 2013-01-31 14:33:56

*son* not husband!

kmccullars on 2013-01-02 03:26:38

@clbowden, I can sympathize with you, for I am in a very similar situation. My husband and his wife continuously put more and more restrictions on being able to spend time with the grandchildren. It is very sad and very frustrating. I hope that both of our situations will improve quickly....it is sad for the grandchildren to innocently suffer due to arrogance, pride and selfishness of the parents!

kmccullars on 2013-01-02 03:25:54