Most grandparents find the idea of being unable to see their grandchildren inconceivable. In actuality, however, thousands of grandparents have faced the loss of their visitation rights. Some have successfully negotiated, either in or out of court, for grandparent rights, including their right to see their grandchildren. Others have had to face the sad reality of going for years without the prospect of a visit.
History of Grandparents Rights
The concept of grandparents rights is a relatively new development, the product of several factors. These factors include greater longevity, which has given many grandparents larger roles in their grandchildren’s lives, and a rising divorce rate, which in many cases has put those relationships in peril. Grandparents facing the loss of their visitation rights have sought legal relief from a patchwork of laws and legal precedents which vary greatly from location to location. In the United States, grandparents rights are governed primarily by state statute, but no less an authority than the U.S. Supreme Court has weighed in on the subject.
Laws About Grandparent Rights
State statutes on the subject of grandparent visitation rights vary from statutes considered to be permissive to those considered to be stringent. The Supreme Court case which applies to grandparenting visitation rights, Troxel v. Granville, involved a statute of Washington State that governed the rights of third parties to seek court-enforced visitation. Although the statute did not specifically mention grandparents, those were the persons most likely to seek visitation under the statute. The Supreme Court decided that the statute was overbroad, as it required only that such visits be in the best interests of the children. Generally, the court decided that the statute violated a parent’s right to make decisions concerning the care, custody, and control of children.
Other Remedies
Laws governing grandparents rights are constantly being revisited, and there is a definite possibility that the Supreme Court will hear another case on the topic. In the meantime, grandparents whose access to their grandchildren has been restricted should fully investigate other possibilities before resorting to the remedy of the law. Besides family members attempting to reach an agreement on their own, the option of mediation is another venue that can often avoid the divisiveness of a lawsuit.
Chances of Success With a Lawsuit
If no other remedy is found, grandparents need to be aware of their chances for success before commencing a lawsuit. A number of factors can influence the outcome of a suit for visitation rights.
First, have the grandparents been denied any visitation, or has their access to grandchildren merely been restricted? Obviously, if all visitation has been denied, the grandparents have a better case. Indeed, in some states, those with stringent statutes, grandparents cannot file a suit if they are allowed to see their grandchildren, even if the visitation is very infrequent.
Second, what is the family situation of the children in the dispute? If the family is “intact”--not affected by death or divorce--grandparents have a weaker claim. Grandparents of children born out of wedlock also may have a more difficult time, as paternity must be established before the suit can proceed. Adoption can also terminate grandparents rights just as it terminates parental rights, unless the adoptive parties are stepparents or other grandparents, in which case grandparents’ rights may survive the adoption.
Third, have the grandparents served as custodial parents or served in the role of parents? If grandparents have provided child care, taken children for doctor’s visits or otherwise filled roles normally filled by parents, the rights of the grandparents are generally strengthened.
The Best Interest Test
All suits for grandparents rights involve the question of whether grandparents’ visits are in the best interest of the grandchildren. Grandparents must generally prove that their visits will not be harmful to the children involved. This isn’t as simple a task as it at first seems, as some jurists believe that overruling parental decisions can have a destabilizing effect on the family unit.
Special Concerns for Custodial Grandparents
Grandparents rights are of the greatest concern when grandparents have served as parents, even in a temporary capacity, as the loss of the relationship usually causes greater distress on both sides. Grandparents who are raising their grandchildren should consider formal adoption, legal guardianship or an order of custody to formalize their relationship. Otherwise, they face the possibility of having the children restored to their parent or parents, who could then decide to sever the grandparents’ relationship with their grandchildren. Since grandparents are most often put in the parental role by parents who are incarcerated, addicted to drugs or otherwise unstable, the chance of the parents making such a decision is generally higher than in more stable families.
Arguments For and Against Grandparents Rights
Those who are in favor of strengthening grandparents visitation rights usually cite the stabilizing effect of grandparents in grandchildren’s lives and the trauma which truncating that relationship can cause. The problem with court-ordered grandparent visitation is that it significantly compromises the right of parents to make decisions about their own children. In addition, just as some parents are not good parents, some grandparents are not good grandparents, especially if they stir up family conflict in the absence of any evidence that the parents are not fit.
Avoiding the Courtroom
In conclusion, although it is difficult for many grandparents to see their roles as anything other than legitimate and even sanctified, parents rights do trump grandparents rights unless the parents can be proven unfit. Therefore, many suits for grandparents rights present knotty legal problems and are best avoided. If personal negotiation or legal mediation can resolve the conflict, such issues are best kept out of courts of law.
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