Grandparent Visitation Rights in the United States
The concept of grandparents' rights is derived from three basic legal approaches. (It is important to note that grandparents' rights only give grandparents the right to file a petition to visit their grandchildren; they do not guarantee that grandparents will be heard before a court of law.) The first approach is derivative rights theory, in which grandparents obtain their right to petition to visit their grandchildren by way of their own child. Statutes based on derivative of rights theory allow grandparents to have access to their grandchildren when their own child cannot practice his or her parental rights due to death, divorce, termination of parental rights, incompetence, unfitness, or incarceration. Many states, in line with the second statutory approach, also allow grandparents to petition for visitation if family disruptions such as divorce, separation, military duty, and death of parent exist. For example, the government has an interest in maintaining grandparent-grandchild relationships following divorce to reduce the number of children placed in the welfare or foster-care systems. The third approach, using the best interests of the child, allows grandparents to petition for visitation against fit, intact families, despite parental objection (Hartfield 1996; Walther 1997). Regardless of the approach, grandparents' rights encompass three specific legal issues: violation of parental rights; promotion of the best interests of the child; and establishment of grandparental rights.
Parental rights. Grandparents' rights legally challenge family law tradition that protects parents' rights to raise their children as they see fit. The rights of biological and adoptive parents have been protected by the U.S. Supreme Court (e.g., Meyer v. Nebraska 1923; Pierce v. Society of Sisters 1925; Stanley v. Illinois 1972; Wisconsin v. Yoder 1972) and by common law practices (those practices outside the legislative processes). Some justices, for example, have adhered to common law traditions that historically gave parents ultimate control over the upbringing of their child (e.g., McMain v. Iowa District Court of Polk County 1997; Ward v. Ward 1987).
Two legal standards may be used in decisions to interfere with the rights of parents: strict scrutiny or rational basis test. Strict judicial scrutiny requires a compelling reason to justify government interference in the rights of parents. The rational basis test, a lower standard, allows the government to interfere with the fundamental rights of citizens when a reasonable relationship to a justifiable government interest exists (Harvard Law Review 1980). Beginning in 1965, all fifty states began to create statutes that allowed grandparents to petition for visitation with their grandchildren (Segal and Karp 1989). In 1998, the 105th Congress enacted Public Law 105-374, The Visitation Rights Enforcement Law, guaranteeing that grandparents can visit their grandchildren anywhere in the United States as long as they have visitation rights in one state. Grandparents' rights reached the U.S. Supreme Court in 2000 with Troxel v. Granville. These occurrences brought this family law issue to the center stage of U.S. politics.
In most grandparent visitation cases, including the Troxel v. Granville (2000) decision, U.S. Supreme Court and lower court justices largely have ruled in favor of parents over grandparents (Henderson and Moran 2001). In a few cases, state supreme and appellate courts determined that grandparents' rights unfairly interfere with parental rights or do not serve the best interests of the child, unless threat of harm to the child or an unfit parent exists. To protect parental rights, lower court justices frequently cited grandparents' failure to strictly adhere to stipulations in grandparent visitation, child custody, or related statutes.
Best interests of the child. Grandparents' success in acquiring visitation rights also depends on the court's interpretation of what constitutes the best interests of the child or promotes the welfare of the child (the overriding consideration in child custody and visitation decisions) (Harvard Law Review 1980). To protect the interests of children, the government may once again use its parens patriae powers, the power to protect the interest of all vulnerable citizens or to become the legal parent or protector of children (Garner 1999; Harvard Law Review 1980; Mnookin and Weisburg 1993). Following family law traditions that protect the primacy of the parent-child relationship, courts have ruled that protecting the rights of parents serves the best interests of children (e.g., Brooks et al. v. Parkerson 1995). In some instances, judges looked at the facts of the case including the economic, psychological, and moral stability of the grandparents or the suitability of the grandparents' home (e.g., Steward v. Steward 1995). The quality of the relationship between the parent and grandparent or between the grandparent and grandchild were sometimes considered in determining if grandparental visitation served the best interests of the child. Grandparents' rights have led courts to rethink the legal rights of children (Foster and Freed 1984). In a few cases (David J. & Rita K. v. Theresa K. et al. 1993; Puleo et al. v. Forgue et al. 1993; Strouse v. Olson 1986; Thompson v. Vanaman 1986) judges interpreted the best interests of the child to mean promoting the rights of children because children have a right to know their grandparents and to derive benefits from having a relationship with them.
Grandparents' rights. The courts have provided limited legal protections to extended families led by grandparents—except in the case of Moore v. the City of East Cleveland (1977), where the grandparent-led family functioned like a traditional family with two parents and children. Consequently, granting grandparent visitation rights showed a slight shift in the legal definition of the family (Bohl 1996; Burns 1991). Because lower court judges knew the facts of the case and had legal authority over custody and visitation decisions, in some instances appellate and state supreme court justices upheld the lower court decisions (e.g., Hicks v. Enlow 1989; In the Matter of Grandparental Visitation of C. G. F. 1992). State supreme or appellate judges assumed that lower court justices had a better understanding of the facts of the case. In King v. King (1992), a Kentucky court made a radical legal decision determining that the grandparent visitation statute sought to promote the rights of parents, children, and grandparents, which is against legal traditions that have protected parental rights and infrequently promoted the rights of children. In other words, the King v. King decision implies that grandparents have rights. Despite these trends, parental rights continue to take precedence over the rights of children and grandparents, especially in light of the special weight given to parents in the Troxel v. Granville (2000) decision.
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2 days ago
What is truly inhumane and heartwrenching is for grandparents to constantly overstep the parent/grandparent boundaries. I have been tortured for over 15 years by my son's paternal grandparents. His father walked away when he was 3. so they immediately stepped into his space acting like his father. They commit "grandparent alienation" to me whenever he visits with them. I have been extremely liberal with visitation, to prevent a backlash when my son get older I even allowed them to visit England, to see other relatives. My son wants to live with them now calling me trash and Poor,. Although he wants for nothing at our home he hates living at home , he won't wear clothes I buy, eat food I cook etc. He refuses to accel in school just because he thinks it hurts me He is mean and deceitful. He calls me evil because I provide structure and dicipline in his life.They promote irresponsibility and disrespect. They do not support me in any fashion. They used "Grand Parents Rights to threaten me and alienate me from my son.I am not the material mon butI am the only mom who stood beside he and never once left him or stopped loving him.
14 days ago
My husband and I took our daughter in-law to court after she refuseed to let us see our grandchildren because she wanted us to buy her a car. The death of our son shocked us all and we still miss him very much. When our son was alive we saw our grandchildren on a daily/weekly basis since they lived less than 4 miles away.(we were even at the birth of both of them) We moved our two grandchildren and daughter in-law into our house the night our son died. We supported all three both financially and emotionally for 15 months. We had to move our daughter in-law back into her own house after she started running around, staying out late and not coming home(she was not really taking care of her children either). Our two grandchildren were only 2 yrs and 11 months old when our son died. His wife is not from this country and they were not even married for 3 years before he died. We LOVE our grandchildren and believe their mother is very neglectful. Being a grandparent should not be this heart breaking. We now have visitation rights of one day a month which we totally enjoy. Our grandchildren would like to see us more but can't. They don't understand what has happened. Keep up contact if you can! The court system is very expensive,lengthy and not very just in our opinion. We were able to get visitation rights after 7 months of going to court(our daughter in-law fought every way imaginable to stop us from going to court like trying to get a restraining order-calling the police, we have been through it all, with no succes on her part because it was all false). It's amazing how the true nature of a person comes out when they don't agree with you. It was worth the effort in the end. We love our grandchildren and only want what is best for them!
about 1 month ago
I have yet to meet my Grandson, he is 6months old. His mother lives with her mom and her mothers boyfriend while my son works two jobs to pay his support. Her mother recently got a harrassment order against my son which prevents him from contacting her. Because no visitation schedule had been set up yet he has to wait for a hearing which can take up to 2 month. In the mean time this family gets to sit back and have exactly what they want, this poor baby, all to themselves. I don't understand why they are o intimidated by mt husband and I. We only offeredto help the kids when they found out they were pregnant. She was 15 he 18 was graduating from high school. She had gotten pregnant right after my grand father died. We told th kids that we would help them, but they would need to get jobs this summer so they couldhelp support the baby and not live on welfare. We have enough qualified family members that the child shouldnt ned daycare...What ever they needed we could round up some how. Well somehow every thing we said got completelty twisted around by the timethey got to the othe parents house and evedently it was reported that we wanted to take the baby away from them. I called my son the next day and explained that he should get an atty. so he could assure his affairs would be in order ahead of time and there would be no problems once the baby was born. I tried to assure him that I have raised my kids and did not want to take the baby away, just help them however we cold. I was told to stay out of it, I would have nothing to do with this baby. If I came anywhere near her parents property a harrassment order will be filed. I was a nurse for 20 years, my husband a cop 20 yrs ago. I have done foster care in the past, and I have raised my family. My husband and I have no intentions of trying to take the baby from his mother. That is unless there is some reason I should be thinking otherwise. Ihave tried sending cards Congratulating them on the birth, to my Grandson for his birth, Valentines Day, Easter, and to his mother for Mother's Day and to my son for Fathers day. All were returned marked in big black letters "RETURN TO SENDER" I keep them all in a box along with all the other gifts you would normall give your grandbaby, the outfits, blankies, diapers, onsires, stuffed frogs, bunnies, binkies, rattles...It breaks my heart that My ailing mother, the baby's Great Grand Mother, also has not met him. We have done nothing to this family, not one thng but offer or help or to be there for them if they need help. I just dont understand how her mother, whom I have never met, can be this way. Is the mighty dollar that important that you would hide your Grandson from half of his famoly. The DNA test was proof enough he is our blood. We ould like to see him, get pictures of him at the very least. This is torture. How do we know he is ok if we cant see him. Out of the blue last week, my son left me a message wanting to talk, needing my help. Now he needs the lawyer, now he needs the visitation schedule. Now the child is 6 months old and the mother "says she is breatsfeeding" so of course lets complicate the entire procesess even more. I cannot contact the Family as I was forbidden to in the beginning from the mother. I contacted my attorney. This is going to take some time. There should be default Grand Parent rights, especially when there are minors involved. These people receive public assistance, if this child was in our home, that certainly would not be the case. or that matter my son has a job with insurance before the baby was born. It's just the mothers family that needs assistance. I dont see why theycant work if we have offered to watch the baby. This is so frusterating to say the least.
2 months ago
I was very close to my granddaughter Carly until the death of my daughter. My daughter's boyfriend and his mother quickly took control of custody and have not kept up their aggrement with me to have visitation with Carly. I even went to a lawyer who told me it is rare to have shared custody of a grandchild even when the child of the grandparent has died. I currently have not seen her in over a year and my heart is shattered. I do not want to take her away from her father, I only want to grow close to her and have time with her.
3 months ago
Still grieving our daughters death and now we are not allowed to see our Grand-Children(Her children)because our son-in-law is afraid that we are going to take them from him when all we ever wanted to do was to help him. I would like to hear from you
5 months ago
"Grand parents have no rights" is the common diatribe of the Washington State Courts much like the failed zero tolerance policy of the Washington State schools. Every case and relationship has a unique set of variables that require careful scrutiny. The over-simplied policies of this liberal state place excessive emphasis on protection of social and government programs as in "ex parte" procedures handled by less than scrupulous attorneys and court officials against one parent or another. The parents of a parent (ie - grand parent of the common children) to whom these "ex parte" actions are then punished due only to biological lines and have no "rights" either way according to the flawed policies of the Washington State Courts. This is the result after the same grand parents spent years trying to help keep afloat the grand children's family network thru nurturing, birthdays, holidays, and financial support. This cut-off of the relationship between young children and their greater family defies the human spirit of family and common good. Either way, justice will eventually privail and the grand children WILL learn the absolute truth one day or at least at age 18.
7 months ago
The idea of over riding a family decision for any reason other than to avoid harm is rediculous. What happened to belief in American Freedom? I have been sued by a grandparent, I am a widow. My husband didn't have any contact with her because of the childhood abuse that he suffered even as an adult by her and her alcoholic husband. She is bipolar, spent 1 1/2 years in a woman's shelter. Waited 4 years to file a motion against me...my daughter doesn't even know who this lady is. But because my husband died, she won visitation with my daughter. This is a flawed system. I shouldn't loose my parental rights just because my husband has passed away...and this lady wasn't even safe to her own child. The courts need to leave good and fit parents alone. There is a reason that we don't want to have contact with these people. For those grandparents that seek visitation, if the parent is fit, find out what is wrong with the relationship and fix it. Be a friend, not a thorn.
8 months ago
Heartbreakin' is NOT the worse of it. The 'loss' and grief is unbelievable.
about 1 year ago
Not to be able to see the only grandchildren you have on this earth for visitation is heart wrenching and cruel and inhuman treatment. To love these children so much and have your ex daughter-in-law not let them come and stay all nite or let you take them camping or fishing or do fun things is cruel to the children too. At Christmas time they can come no complaints because mom knows you will shower them with presents. It is heart breaking!!