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Family Law: Grandparents Rights

July 27, 2012 661 No of hits
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Family Law: Grandparents Rights

Grandparents rights sometimes become a legal issue where parents disallow them visitation or contact with their minor grandchildren. For many years most states had some version of a statute which provided essentially that courts should grant visitation to grandparents (even over objection by parents) if it were found to be "in the children's best interests." These cases usually arise when some disruptive circumstance occurs such as a divorce or the death of a parent and as a result the grandparents, for whatever reason, are denied the ability to see the grandchildren after having previously enjoyed some degree of contact with them for a period of time.

The type of statutory authority for grandparental visitation providing a "best interests" test came under serious U.S. Supreme Court scrutiny in the 2000 case of Troxler v. Granville. There, the Troxlers had seen their granddaughters on a regular basis when their son brought them with him to visit. The son committed suicide and the Troxlers filed a petition asking that the surviving mother, Granville, be required to provide visitation under a Washington state law which allowed "any person" to petition for visitation "at any time" and authorized courts to grant such visitation where it was determined to be in the best interests of the child or children. Granville did not object to visitation itself but rather to the amount of visitation time the Troxlers were seeking. The trial court ruled for the Troxlers and granted them visitation in approximately the amounts of time they had sought. Granville appealed, claiming that the Washington statute was unconstitutional because it encroached upon her liberty interests associated with her right to rear her children in the way she saw fit, including the right to deny the children's grandparents visitation or limit or restrict it. Ultimately the case made it's way to the U.S. Supreme Court, which agreed with Granville and struck down the Washington statute the Troxlers had relied upon. The Court first recognized that parental rights are among the most closely guarded of all liberty interests and that this includes a parent's right to rear children according to their own judgment absent some compelling government interest to the contrary. Turning it's attention to the Washington statute in question, the Court found it "breathtakingly broad." The Court ruled that "special weight" must be given to a fit parent's decision not to allow non parental visitation and that courts facing this issue must apply a presumption that fit parents act in the best interests of their children.

The practical effect of the Troxler decision has been that many states have revised their grandparental and third party visitation laws, so as to premise the right to petition the court on the existence of disruptive circumstances such as divorce, death or such other conditions as substantially affect the family. Of course, the Troxler Court referred to "fit" parents, so if persuasive evidence existed showing a parent or parents to be unfit, whether due to neglect, illness, or some other condition, then presumably the grandparents would have a valid basis for the court to at least consider the petition. In absence of a more favorable state of the law, grandparents seeking visitation time with their grandchildren are best advised to try to work out some agreements amicably, if possible. It is uncertain whether the Supreme Court will revisit this issue, as the Troxler decision seems fairly definitive, although it was a 6-3 split among the Justices. In the meanwhile, grandparents would do best to learn the status of the law in their particular state.

Tags:   Family Law: Grandparents Rights   Family law   Grandparents rights   Visitation   Child custody   Best interests of child  

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Grandparents rights sometimes become a legal issue where parents disallow them visitation or contact with their minor grandchildren. For many years most states had some version of a statute which provided essentially that courts should grant visitation to grandparents (even over objection by...

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