The changing rights of grandparents - What you should know about your legal rights to be involved in the lives of your grandchildren

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The changing rights of grandparents

What you should know about your legal rights to be involved in the lives of your grandchildren
By Alan S. Kopit
May 22 —  While more than two million grandparents take care of their children’s children every day, a growing number are finding it more and more difficult to spend a day, or even just an hour with their grandchildren. Why? Because nationwide, the rights of grandparents are being successfully challenged. On NBC’s “Today” show, consumer attorney Alan Kopit discusses these changing rights and offers some tips for grandparents and families. Read some of his advice below.
 
       
 
 
 
 



 

 

        GRANDPARENTS CAN PLAY an important role in the raising of their grandchildren, and the bond between a grandparent and a grandchild may be as loving and nurturing as a parent’s bond. In today’s family, the grandparent may provide daycare support if both parents work or financial support if the parents can’t make ends meet. But with death, divorce and single parent homes, sometimes the desire of grandparents to maintain a relationship with their grandchildren conflicts with the wishes of the custodial parent. This article will help you understand the rapidly changing rights of grandparents.
       
THE RIGHTS OF GRANDPARENTS HAVE NEVER BEEN MORE TIMELY
       With more divorces, single-parent homes, unmarried parents and remarriages, family life has become more complicated. Care for children is at a premium, especially in single-parent homes or in families where both parents work outside of the home. In these situations, grandparents may have developed relationships with their grandchildren, which may be stronger than the traditional relationships. As grandparents live longer and their relationships with their grandchildren grow deeper, their desire to be with their grandchildren — in the face of death or divorce where the surviving or custodial parent doesn’t want such a relationship — has become a difficult societal issue. Grandparents may have developed nurturing and loving relationships with their grandchildren, which they don’t want to see end just because their child may have died or no longer has custody of their grandchildren.
       
PARENTS’ RIGHTS TO RAISE THEIR CHILDREN ARE NOT ABSOLUTE
       Parents have an almost unfettered right to make key decisions relating to their children, but the right is not absolute. There are many cases in which the states limit parental rights to raise their children as they see fit. For example, with respect to laws regarding school attendance, child labor, driving cars, the use of child safety seats while driving, and the vaccination of children, the state’s interest in the health and welfare of the community supersedes parental rights because there are no severe restrictions on the parents in these instances.
       In many situations, the needs of children to maintain relationships with grandparents may outweigh parental concerns, and many states have said that permitting grandparents to visit their grandchildren is a minor imposition on parental rights. What must be examined in most cases is what is “in the best interests of the child.” That is exactly the issue that the U.S. Supreme Court addressed in the Troxel case, decided in 2000: Do competent parents have a constitutional right to deny grandparents visitation with their children, and does the state have the right to order visitation over a parent’s objection if it is determined that grandparent visitation is in the children’s best interest? Unfortunately, this decision seems to have brought more confusion than clarity to the issue.
       
STATES DEAL DIFFERENTLY WITH THE VISITATION RIGHTS OF GRANDPARENTS
       Yes, but the laws are being challenged, and visitation rights are changing. Since the Supreme Court decision, more than ten states have ruled their visitation laws unconstitutional. For example, lawsuits currently in Michigan and New Jersey are testing the legal right of a grandparent to sue for visits with their grandchildren. Groups like the AARP filed a “friend of the court” brief in the New Jersey Supreme Court in support of grandparent visitation rights. Experts are concerned because decisions are not consistent from state to state. The trend is going against grandparent visitation rights, because as some experts have said, parental rights to raise their children had eroded too far and the erosion had to stop. As a result, when grandparents do go to court, they are not winning as much as they once did. Even in states where the visitation laws remain “constitutional,” the courts have substantially narrowed them. 		 
 
 		  

       
HOW THE VARIOUS STATE LAWS WORK
       The laws basically take two forms. At one end of the spectrum are the state laws that allow a grandparent (and only a grandparent) to petition a court for the legal right to maintain their relationship with the grandchildren only if there has been a divorce or death of one of the parents. Other states are more permissive, allowing a grandparent to petition a court for visitation rights if such visitation is deemed to be “in the best interests of the child.”
       
FACTORS COURTS CONSIDER TO DETERMINE VISITATION RIGHTS
       The most important factor is the nature and extent of the grandparent-grandchild relationship. If a court believes that the bond is strong and has been in existence for a long time, the likelihood that a court will grant visitation rights is greater than if the relationship is superficial.
       Courts also look at the reasons why visitation is being denied by a parent. Is there mere animosity between the parent and grandparent or is there something in the grandparent-grandchild relationship that the parent believes will be harmful to the child if the relationship continues? All of these factors come down to one critical point in most cases: Is granting visitation rights to the grandparent in the best interests of the child so as to outweigh the parent’s right to raise the child as he or she deems appropriate?
       
WHAT QUESTIONS SHOULD GRANDPARENTS ASK TO DETERMINE WHETHER THEY HAVE ANY LEGAL RIGHTS?
       Be sure to consult with a family law attorney. The law in your particular state may be complex, and a family law specialist may be needed to explain your legal rights.
       Find out who may ask a court for relief. Can only a grandparent go to court or does your state allow any caregiver, like a stepparent or other relative to petition the court?
       Find out when the petition may be filed. Does there have to be, for example, a divorce, a death, or a child born out of wedlock, or may the petition be filed even if both parents are alive, but are denying grandparents the right to visit their grandchildren?
       Find out what factors a court considers in making its decision. Also ask who has the burden of proving their case — the parent who wants to raise his/her child as he/she sees fit or the grandparent who believes that visitation should be allowed.
       

 
 
 		  
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OTHER WAYS TO RESOLVE THESE DISPUTES:
       Courts are often not the best place to resolve personal disputes involving children. Litigation is, obviously, quite adversarial (and expensive), and putting the children in the middle of litigation can be emotionally difficult. Another way to resolve these disputes is for the parents and grandparents to engage in mediation, so that with the help of a trained family mediator, the parties themselves, rather than an outside party like a judge, can reach an accommodation to keep these issues from being litigated in public. Finally, all parties should do their best to keep the children from getting involved in the animosity that may exist between the grandparents and parents as these issues are being resolved.
       
HELP IS AVAILABLE:
       Contact your local bar association, which may sponsor a family mediation service. Your local bar association may also have a lawyer referral service to assist you in finding a family law attorney.
       The American Bar Association may be able to assist in finding family mediators in your area. Click on www.abanet.org/dispute to reach the ABA.
       Finally, you may want to contact the Association for Conflict Resolution, which specializes in family mediation. The Association can be reached at:
       1015 18th Street, NW
       Suite 1150
       Washington, DC 20036
       Tel: 202-464-9700
       Fax: 202-464-9720
       Web site: www.mediators.org

 

 

 

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