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Grandparents Ride Seesaw Over Visitation Rights

Back-and-forth court rulings may be an incentive to work out issues.

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.

That case involved the grandparents of a boy who lived with his mother, the couple’s daughter, but not his father. After the grandson complained to his grandparents that his mother's boyfriend had beaten him, a police investigation found evidence of corporal punishment but concluded that legal intervention was unwarranted. The grandparents discussed the beatings with their daughter, who then terminated any visitation by them. The grandparents claim that in addition to their protection of their grandson and concern for his care, their visitation was supported by their grandson's father, who, though absent from the family, supported the boy financially.

AARP filed a friend-of-the-court, or amicus, brief in the case and emphasized studies showing the benefits of grandparents’ involvement. Studies demonstrate that grandparents contribute significantly to the healthy development of their grandchildren. In cases where homes are broken by divorce, incarceration, mental and physical illness, AIDS, crime, or the death of one or both parents, Jones said, the presence of a constant and reliable family member, grandparent, or other relative, is particularly important to children.

AARP argued that the “best interest of the child” standard in the state’s grandparents’ visitation statute was the appropriate basis for which to award visitation, but the Hawaii Supreme Court ruled that the state’s lower courts must adopt a test of whether upholding the parent’s wishes could cause “harm” to the child.

Seeking a Better Alternative

The back-and-forth court rulings should give grandparents added incentive to try to work out issues or bad feelings with their grandchildren’s parents, in order to see the grandkids.

“We urge people to resolve out of court,” Jones said. Going to court should be a last-ditch option. “It’s costly and takes years,” she added, and can rip families further apart. If your attempts to resolve issues fail, consider using a trained mediator.

“We urge mediation first,” Goyer said. A low-cost option, mediation helps people come to an agreement. Typically, each side gives a little, but each gains, too. To find a mediator in your area, check out the National Association for Community Mediation.

“We can help parents and grandparents work it out,” said Mary Ellen Bowen, executive director of Mid-South Mediation Services in Hohenwald, Tenn.

If you have tried that avenue and find that going to court is the only option left, then contact a family lawyer to find out whether courts have upheld strong grandparents’ visitation rights in the state where the child lives.

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