Denying Grandparents Access to the Children

Gone are the days when your children and grandchildren lived down the block or around the corner and you could visit them whenever you wanted. In our mobile society, many children live half way across the country and grandparents are lucky to see their grandchildren once or twice a year. Today, even that seldom is better than what an increasing number of grandparents are facing: a court fight for the right to see their grandchildren.

All fifty states have statutes granting grandparents, and sometimes other third parties, the right to petition a court for visitation with children - even when the parents object. These statutes vary in scope and method. But they all contemplate that in some limited cases, a court may override a parent's decision about with whom their children may have relationships. The statutes are controversial, for they pit the fundamental right of parents to make decisions about their children's lives against the often sympathetic plight of grandparents denied access to their grandchildren.

There have been a number of Supreme Court cases and commentaries regarding the rights of grandparents to visit with and have a role in the upbringing and social development of a child. In a 2000 decision, Troxel v Granville, the Supreme Court disallowed a statute of the state of Washington which allowed any person the right to petition for visitation rights whenever a court felt such visitation was in the child's best interests. Note that any person, not just a relative, could make the request, regardless of the parents' wishes. The Court felt that law was overbroad; since then the courts and legislatures of the various states have been struggling to test their own statutes against the reasoning of Troxel to see whether they, like Washington's statute, must be struck down.

The place to start is a look at the American system of parental rights and the Constitutional protection that follows.

Ancient theories of parenting varied from the principles expounded in Plato's Republic. There children would be removed from their parents at birth, and the state would raise them. In contrast, some ancient cultures, like those of the Romans and Babylonians, followed a laissez-faire model of parenting, under which fathers, in varying degrees, had the legal authority to buy, sell, trade, and even kill their children, more or less at will.

American family law is premised on a compromise between these two extremes. There are three parties involved, the parents, the government and the child. They are not equally important.

Instead, parents are given vast deference to make decisions about all aspects of childrearing, including education, religion, health care, discipline, as well as mundane day-to-day activities. (Even children themselves almost never win when they challenge parental authority in court.)

The state, in contrast, plays a sharply limited role. It can only override parental decisions when they place a child's health or well-being in jeopardy. The child abuse and neglect system presents an extreme example. Through this system, the state has the authority to remove children from their parents' care entirely - but only if there is proper evidence that the children have been harmed or are in danger.

The primacy of parents' rights to make decisions about their children is protected by the Due Process Clause of the Constitution. Parents have a fundamental liberty interest, which gives them the right to establish a home, raise children, and control their education and upbringing. As long as parents are "fit," the state has no reason to interfere with the exercise of this interest.

While the hope is that parents will do their best to raise good and moral citizens, it is up to them to decide how the children shall be reared. This constitutional right has led courts to create a presumption that fit parents make decisions that are in the best interests of their children. As a result, parents have won battles with the state over home-schooling, religious isolation, and the withholding of medical care for a non-life threatening condition - all of which are permitted when parents choose them for their children.

Start with the general rule. The opinions of the married parents of a child as to whether visitation with and by grandparents will not be challenged by the courts without a clear and convincing determination that the child's interests will be greatly harmed in the absence of visitation. In other words, if both father and mother are united in wanting no contact with Grandma and Grandpa, the chances that the latter can seek relief from the courts are slim or none.

The laws of the different states provide circumstances in which a grandparent (or perhaps a former step-parent) may request the establishment and enforcement of visitation.

Florida's statute, § 752.01, Florida statutes, permits a petition by grandparents when the parents have been divorced, one parent has deserted the child or the child was born out of wedlock. The Court also considers the "best interests" of the child, but note that the wishes of an intact two-parent family are not to be challenged. In California, under § 3102 of the Family Code, one of the natural parents must be deceased before grandparent visitation will be ordered. Massachusetts has similar conditions, the parents must have divorced or separated, the child must have been born out of wedlock or one or both parents are deceased (Chap 119, § 39D, General Laws).

Other states have other restrictions but protracted legal proceedings are expensive, and do nothing to cement a relationship among family members and the children.

So what are practical ways to promote a healthy and nurturing relationship between grandparents and their grandchildren? First recognize the problem.

Find alternative ways to continue the relationship. Write letters. call--let the kids know you're part of their support network. And never, never make them feel they have an emotional conflict of interest. Even if you have to bite your tongue when you say something nice about the children's parent, do it because you're doing it for the good of the child.

Try and discuss the issues with the objecting parent. More often than not, visitation is not being denied because the parent thinks contact with the grandparents will be harmful for the children; instead, the parent fears that the grandparent will talk to the children about him or her in an adverse way. Establish, with the parent, some ground rules for visitation. Then, whatever rules are agreed upon, follow them.

If direct discussions are not possible or fruitful, consider formal mediation. Florida, for example, makes mediation a condition to the grandparents' petition. Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with.

As a father and grandfather, I am intimately aware of the importance of maintaining a presence in my grandchildren's' lives. I am also fully aware that my role is to give unconditional love, without offering advice that counters the wishes of the parents, my own children. It is sometimes a difficult chore to bite the tongue and just hug the child, but that's what is needed.

And hug them often!