Grandparents Ride Seesaw Over Visitation Rights

In the seesaw battle to test grandparents’ rights in child-visitation disputes, Hawaii’s highest court in December reversed the momentum grandparents had recently regained. The ruling comes after decisions in 2006 in Pennsylvania, Colorado, and Utah, in which those states’ supreme courts had sided with grandparents who were forced to sue for visits with their grandchildren.

In another twist before that, a U.S. Supreme Court ruling in a case from Washington state—decided in 2000—had sent grandparents’ visitation rights reeling. Prior to the Washington case, grandparents across the country had a legal right to sue for visits with their grandchildren. But in 2000, the Supreme Court sharply curtailed those rights.

“Everything changed after that,” said Barbara Jones, an attorney with the AARP Foundation litigation staff. In that case, the Supreme Court ruled that a broad visitation statute in Washington, which allowed even non-relatives legal standing, violated the constitutional rights of parents. In its ruling, the court beefed up parental rights. The high court ruled that laws that are narrowly written or construed to respect the best interest of the child might comport with the Constitution, Jones added.

Family law has been reverberating ever since. As of 2007, 23 state supreme courts have ruled on the constitutionality of their respective state’s visitation statutes, according to Jeff Atkinson, adjunct professor of law at Chicago’s DePaul University and author of the American Bar Association’s “Guide to Marriage, Divorce & Families.” Most courts have held that the laws are constitutional, at least when applied in certain circumstances. But, since 2000, top courts in Florida, Illinois, Iowa, Michigan, and Washington have held their respective state statutes unconstitutional.

Legislatures in some of those states and in many others reworked their visitation statutes “to give weight to the decisions the parents make,” said Traci Truly, a Dallas family lawyer and author of “Grandparents’ Rights.” Many people gave up grandparents’ rights for dead, Truly noted, but “grandparent rights didn’t die; it [visitation] survived.”

Still, grandparents’ legal standing is not as broad as it once was. “It is possible for grandparents to obtain visitation rights in certain circumstances,” Atkinson said. Courts have recently sided with grandparents in cases involving the death or incarceration of a parent, for example, or with grandparents who have raised their grandchildren for a period of time only to be cut off suddenly from seeing their grandkids, or in other cases in which grandchildren would be harmed by not seeing their grandparents.

“AARP believes grandparents should have the right to petition the court” on matters of visitation, said Amy Goyer, national coordinator for the AARP Foundation’s Grandparenting Program. She remarked, “It should be left up to the courts in terms of what is in the best interest of the child.”

“The burden of proof is firmly on grandparents to show visitation is necessary,” Atkinson added. In some states, the laws say the court should decide based on what is in the best interest of the child. In other states, grandparents have to prove that the grandchild would be harmed if prevented from seeing the grandparents. This latter standard, a tougher one for grandparents to meet, was the essence of the recent ruling in Hawaii.