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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.
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