The court case that is most relevant to grandparents’ visitation rights is Troxel v. Granville, decided in 2000 by the U.S. Supreme Court. Although it is generally considered to constitute a blow to grandparents’ rights, it offers no clearly defined standard for granting or disallowing grandparent visitation. Moreover, the Washington State law in question didn’t specifically mention grandparents but concerned “third-party” visitation. In addition, six opinions were offered in the case: three majority decisions and three dissenting decisions. Clearly the topic of visitation rights is a knotty legal issue.
Tommie Granville and Brad Troxel were the unmarried parents of two daughters. When their relationship ended, Troxel, the father, often took the girls to his parents’ home for visits. After Troxel committed suicide two years later, his parents continued to see the girls. After Tommie Granville remarried and her husband adopted the girls, she tried to limit the visits of the Troxel grandparents. The Troxels filed suit based on the Washington Statue Statute, which didn’t actually mention grandparents but granted “third parties” the right to file for visitation. The case made its way through the Washington State court system, arriving at the State Supreme Court. That court ruled that the Washington state statute should have required a demonstration of harm or potential harm to the child if the visitation was denied. The court ruled the statute invalid on federal constitutional grounds. The U. S. Supreme Court then agreed to hear the case.
U.S. Supreme Court Decision
The Supreme Court affirmed the decision of the Supreme Court of Washington. The heart of the decision is a statement that “fit parents” are presumed to act in their children’s best interests. The state should not, therefore, “inject itself into the private realm of the family” to question the decisions of those parents. The court also characterized the Washington statute as “breathtakingly broad.”
The decision in Troxel v. Granville was what as known as a plurality decision, meaning that a majority of the justices did not agree. In this case, Justices O’Connor, Rehnquist, Ginsburg and Breyer agreed on a decision. Justices Souter and Thomas filed concurring opinions but had some differences with the decision of the other four. Justices Stevens, Scalia and Kennedy filed dissenting opinions.
Impact of the Decision
Many states have rewritten or amended their statutes in the wake of Troxel v. Granville. In some states, suits for visitation may be filed only if there has been a divorce, death or other disruptive circumstance in the family. An intact family, usually meaning a married couple, is allocated the right to make decisions about grandparent visitation. For an example of a post-Troxel case involving the intact family issue, see Iowa's Santi v. Santi.
In families that are not intact, grandparents suing for visitation must provide evidence, usually described as “clear and convincing” evidence, that visitation is in the best interests of the child. In states with more stringent statutes, the grandparents may be required to show that the child will suffer harm if visitation is not allowed. Examples of case law involving the harm issue include Kentucky's Vibbert v. Vibbert and the Massachusetts case of Sher v. Desmond. States are sometimes classified as permissive or restrictive according to this requirement.
Future of Visitation Rights
It is possible that the U.S. Supreme Court will revisit this issue in the future, but in 2012 the court declined to hear a controversial Alabama case, E.R.G. v. E.H.G. Alabama was joined in this petition by the states of Ohio, Hawaii, Louisiana, Michigan and Washington, but the Supreme Court still declined, quashing hopes for any judicial enlightenment in the near future. It is certain that current state statutes will continue to be revised and also that those statutes will be impacted by case law as they are tested in court.
Advice for Grandparents
Given this uncertain state of affairs, grandparents would be well advised to try to resolve conflicts before suing for visitation. Another option is to consider mediation. In mediation, a third party is charged with helping the differing parties reach a legally binding agreement. In some states, a suit for visitation cannot be filed unless the parties have been through mediation.