Historically, grandparents have had very few rights in regards to visitation or government support, both in the United States and in the United Kingdom. In recent years, as divorce rates and non-parental guardianship have increased, courts have made allowances for greater fluidity in the interpretation of laws governing grandparent visitation rights. However, that changed with the Supreme Court case Troxel v. Granville (2000). This case, in addition to extreme activism by the ACLU, greatly restricted the right of grandparents to achieve visitation unless they met stringent guardianship prerequisites. For this reason, grandparents seeking to secure visitation rights with their grandchildren should make necessary legal preparations before their case is brought before the courts.
Psychological Implications
Those seeking to deny grandparent visitation rights generally push for greater parental control while simultaneously discounting the psychological effect grandparents have on healthy childhood development. Nevertheless, numerous research studies demonstrate that children are typically more healthy and socially adjusted when regularly exposed to their grandparents. A study by Wilks and Melville (1990) concluded, "...the grandparent's role is an integral part of [a child's] self-identity. When the role of grandparent is removed, the physical and emotional effects are severe, resulting in necessary medical and psychological intervention." This confirms Downs and Walz (1981) study that indicated, "...the stronger the tie with grandparents, the less likely children were to develop significant psychopathology in later life." More recently, research by the Institute of Family Studies (2008) noted that grandparents may be the key to raising intelligent, healthy and well-adjusted children. With these facts so well established, there should be little debate that grandparents visitation rights are, in legal terms, "in the best interests of the child." Unfortunately, few courts take this position.
Troxel
In 1993, Brad Troxel committed suicide in Washington State. After his death, Mr. Troxel's parents continued regularly visiting with his two daughters. However, when the children's mother, Tommie, remarried, she dramatically limited the grandparents' visitation time. Consequently, the grandparents filed suit before a Washington State trial judge, citing the state's third-party visitation law that granted fair visitation time so long as it was in the best interests of the child. The judge ruled in favor of the grandparents. The case was then elevated to the Supreme Court as activist groups such as the ACLU and the AARP stepped in to voice their opinions. A major factor in this case was the fact that Washington State's third-party law was not directed at grandparents but at anyone other than the biological parents. The Supreme Court struck down the lower court's decision as unconstitutional, citing that the Washington law was too broad and that parents should have greater control of who receives visitation rights. By submitting a brief to the Supreme Court, the ACLU advocated firm requirements that grandparents must meet before receiving visitation. Their insistence succeeded. From this decision flow modern laws regulating grandparent visitation rights.
Implications
Troxel v. Granville (2000) has three main implications for grandparents and their right to visitation. First, parents have the right to make decisions about their children's custody, care and control. Second, a "fit parent's" decisions concerning these issues are presumed to be in the children's "best interests" unless the parent can be proved to be unfit. The court did not define what makes a parent legally "unfit." Third, although the case addressed the amount of visitation time in question, the Supreme Court ruled that a "fit" parent has the right to make an ultimate determination in such matters, including whether grandparents receive any time at all.
Differing State Laws
Although the Supreme Court ruled Washington State's decision to be unconstitutional, it did not invalidate the state's third-party visitation law. As in other states, Washington retains the right to make visitation decisions on a case-by-case basis. Various states have made differing interpretations of Troxel. For example, the most restrictive states are Minnesota and Pennsylvania, which have ruled that grandparents do not have a case for visitation rights unless the child previously lived with them. Alabama, Iowa, Mississippi, Oregon, Florida, Utah and Rhode Island have enacted laws that state grandparents may only file suit if their visitation rights have been completely denied. New York, Hawaii, Idaho, Kentucky, Connecticut and Maryland are among the most permissive states, siding with traditional laws that require only that the grandparents show visitation rights are in the best interests of the child. Two major cases in 2005 are diametrically opposed. The first, in Ohio, ruled that grandparents could receive visitation rights against the wishes of the parents. The second, in Texas, ruled that grandparents must be able to demonstrate that loss of visitation would significantly impair the children's physical or emotional well-being. Unfortunately, proving harm or "impairment" is generally impossible until it has occurred.
Grandparents' Rights
As with any constitutional right, grandparent's rights must be defended or else they will be lost. Positive steps that grandparents can take include obtaining an order of custody or legal guardianship if the parent is clearly unfit via drug addiction or incarceration, hiring a qualified professional to mediate disputes and seeking legal council to learn more about the laws in one's state. If the dispute is not extreme and the grandchildren are not in immediate danger, the best remedy is to respect the parents' wishes and to express concerns with patience and consideration. It is always better to solve family disputes in an attitude of love and tolerance than to seek litigation. Should this prove impossible, a number of organizations exist to provide grandparents with information and support. Among these are the AARP, Generations United and Grandparents for Children's Rights.
