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Why Can't Grandparent Visitation Laws Be Uniform?

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The Supreme Court decision of Troxel v. Granville has impacted grandparent visitation laws.

Congress cannot legislate matters of family law, but the Supreme Court can render opinions.

Photo © Visions of America / Joe Sohm
Question: Why Can't Grandparent Visitation Laws Be Uniform?
Our mobile modern society often creates difficulties for grandparents seeking visitation with grandchildren, as each state has its own grandparent visitation laws. Grandparents and their supporters often wonder, why can't Congress enact a uniform grandparent visitation law? Not only would a uniform law simplify legal actions, but also it would seem to be a more equitable solution than the current state of affairs.
Answer:

In the United States, the Constitution specifies the areas subject to legislation by the federal government. Family matters are not mentioned; therefore, they are reserved for the states to regulate. Any move toward creating more uniformity in grandparent visitation laws must be directed toward encouraging the states to cooperate toward this end.

What Role Can the Federal Government Play?

Although the federal government cannot enact legislation controlling family matters, federal influence can be exerted through two other avenues. The first is the court system, and the influence of the judicial branch in the area of visitation rights has been considerable, although most would argue that the impact has been negative for grandparents. The Supreme Court's decision in the 2000 case of Troxel v. Granville had the effect of undermining many state statutes about visitation without offering any any clear guidelines for when visitation should be granted. In 2012 the Supreme Court refused to revisit the issue.

The second way in which the federal government can influence state statutes is through passing a non-binding resolution in favor of a uniform law. Sometimes Congress can encourage states to get in line by tying federal funds to their compliance. Grandparent visitation entails no federal spending, however, so no monetary pressure can be brought to bear.

The Role of the ULC

There is, however, another force working for uniform statutes: the Uniform Law Commission (ULC). Most state laws that have the word "uniform" in their titles are a product of the ULC. The process is not, however, an easy one. Typically it takes years for the ULC to draft and approve a Uniform Act. At that point, state legislatures are asked to consider adopting the Uniform Act. The more states that adopt it, the more effective it will be in reducing chaos in the judicial system. The ULC has been quite active in the area of family law, being responsible for laws such as the Uniform Child Custody Jurisdiction and Enforcement Act.

What Grandparents Can Do

Twice a year the ULC seeks proposals for new projects. The association will accept suggestions from individuals or larger entities. If a group is able to assist with research or funding, that is allowed, but funding must be outcome-neutral--in other words, not tied to a specific result.

If they ever wish to be a force for change, grandparents must organize. Groups such as AARP are already active in exploring and deciding public policy. Grandparents could work through existing groups such as AARP, but age-related issues are already too numerous to address, encompassing health care, caregiving, end-of-life, senior housing and the like. The issue of grandparent visitation rights may reside permanently on the back burner. An organization dedicated solely to grandparenting issues would be more practical, but at this time there is no truly national organization of the sort. For the foreseeable future, grandparents are doomed to working with the statutes of the state that has jurisdiction in their particular case, and to hoping that there are no relocations in their grandchildren's futures.

Learn most about grandparent visitation cases after Troxel.

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