Should Grandparents be allowed to petition the Superior Court to grant them court-ordered visits over the objection of an adequate parent?
Leo Rodriguez
University of Texas-Pan-American
The common laws that we follow today are being established on a very old-school conservative point of view, therefore affecting our modernized American society. One of the biggest issues to come out of this mentality is that Americans fail to recognize the grandparent rights, such as the right to petition the Superior Court to grant them court-ordered visits to their grandchildren. Grandparents nationwide are affected because the conservative ideals believe that a family unit consists only of the nuclear family: the mother, the father, and the children. Those policies that neglect the extended family and assume the nuclear family is the norm would have been correct 100 years ago; way before our generations grandparents were even born. In 1900, the life expectancy was not as high as it is today, grandparents did not make up much of the population. According to Quadagno (2011), in the year 1900, 4.1% of the population was formed by people aged sixty-five and older. However, due to the increase in different areas of technology, in the year 2000 12.4% of the population was made up of people aged sixty-five and older. In a similar study done in the 1980’s, Barranti (1985) discovered that out of the 11% of the people aged sixty five and older approximately 70% were grandparents. These statistics seem to imply that as the decades keep coming, along with new technology, our leaders might need to consider enacting policies to favor the extended family, specifically grandparents. The lack of grand parenting rights affects not only the grandparent who is denied “legal” or permitted visitation, but the grandchildren as well. Today, a current trend in parenting laws is to focus on what is in the best interest of the children. Innovative legislatures who are in favor of grandparent visitation rights argue that grandparents provide a unique kind of nurturance and keep highly important relationships with their grandchildren. Not only should grandchildren be concerned about their grand parents rights affecting how they get nurtured throughout their life course, in addition, they should consider what is waiting for them in the future. According to studies done with the help of the census bureau, one out of every five persons in the United States will be sixty-five and older by the year 2035 (“Transgenerational”, n.d.).
A real dilemma needs a solution, not continuous debate on who is right and who is wrong. Every state has passed grandparent visitation legislation, giving rights to grandparents. However the word “rights” is very tricky. As a matter of fact, most recent constitutional challenges on grand parenting rights have been shaped against grandparent visitation statutes. Hartfield (1996) exposes how the due process clause of the U.S. Constitution does not allow the government to intervene into family relationships in order to protect the adequate parent’s rights. Once again, the lingering misconception that only the nuclear family is entitled to the right over whom their children can interact with is haunting us here. Even when grandparents are left with no other option but to seek visitation statutes to allow them to petition for visitation with their adult child’s children, the U.S. Constitution slaps them in the face. If the custodial parent is an adequate parent, one who does not abuse drugs or the children, then it is very difficult for the grand parent to be awarded visitation rights. According to Segal and George, state legislatures enact laws that grant the grandparents the right to petition to allow visitation, it does not give the grandparents a legitimate right to visit grandchildren (as cited in Purnell, Bagby, 1993, p. 173. Cases are taken to the Supreme Court up to this day, and adequate, fit parents who deny visitations will always win in court because they are fully protected by our Constitution under the fourteenth amendment. Minerva and Shandling explain that the fourteenth amendment states that the Supreme Court must accept liberty rights, which include the right to privacy in establishing a home and bringing up children, including childrearing autonomy and most importantly freedom in family definition (as cited in Purnell, et al, 1993, p. 174).
The debate on whether grandparents should be allowed to receive court-ordered visitation rights to their grand children will be an issue for many decades to come. As a “society soldier”, like one of my most inspiring Sociology professors Chamberlain use to say, I support the exposure of lack of grandparent rights. I understand and support the fact that the nuclear family is no longer the only unit that has the right to nurture and child rear their own children, but the extended family, specifically the grandparents, should be given certain rights too. Many scholars can argue that grandparent’s visitation rights already exist because under certain circumstances court-ordered visitation rights and even custody of their adult child’s children are granted. However, the circumstances call for drug abuse by the parents, children abuse, and other negative environments that can be associated with nurturing a child. In these cases, yes, grandparents are usually given the upper hand. On the other hand, what about the grandparents who are denied the right to visit their grandchildren by an adequate fit parent? That is when the issue really heats up. Should grandparents be allowed to petition the superior court to grant them court-ordered visits over the objection of an adequate parent?
Many academic scholars in many different directions have tackled the explanation of the issues of grandparent rights. A topic to take into consideration to start off my discussion would be the influence of social class among state law legislations. Do grand parenting visitation rights not exist because the middle class do not need them and the ones who do are in the lower socio economic status, who go as the most undermined group of people when making legislations in todays government? Why would the lower class be more in need of grand parenting rights than the middle class? First, lets take a look at what grand parenting means to these two very distinct social classes. Scholars like Clavan (1978), believe that the role of the grandparent depends on which social class you belong to. She believes that the middle class and the lower class differ in their views of their grandparent roles. The population that makes up the middle class characterizes the role of the grandparent as “ideological rather than real” (Clavan: 1978, p. 351). The grandparent in the middle class has no obligations connected to their grandchild. When taking a look at grandparents in families of low socio-economic status, a whole different picture is portrayed. To start off, the grandparents in lower socio-economic status are much more adapted into the daily family life. The family does not have the luxury of having a nanny or a house sitter so the grandmother usually takes the role of the nurturing mother while the parents are at work. In addition, these grandparents in lower socio-economic status tend to be stronger kin oriented and live closer to their adult child, enabling them to not only grow a stronger attachment to the grandchild but to be more involved in the grandchild’s life. Unlike middle class grandparents, low socio-economic status grandparents feel obligated to give aid to their family in any form of service. According to Clavan (1978), what the lower socio-economic grandparents are achieving through these services and dependency on one another is called functional centrality. Functional centrality is defined by Clavan as the “degree of integration into daily family life, particularly through the role of extended parent” (Clavan: 1978, p. 353). By integrating the extended familism, a support network is created that benefits the family as a whole. However, our American legislators want to keep our policies aimed at middle class isolated nuclear family networks rather than stopping to take a careful look at how from a “historical and societal perspective, our kinship system does not appear to be” working as it has before (Clavan: 1978, p. 353). I believe this is where state legislators fail to realize that there is a large amount of people out there who would benefit from grandparent rights more than be harmed by them. The only argument that could be made for the wealthier middle class is the fear of a grandparent having certain rights to their child even when the parents object to it.
In addition to the influence of social class to the court-ordered grandparent visitation rights, I would also like to discuss the research I found on the significance of grandparents. I researched this subtopic because all states have their own grandparent rights, but a court will grant court-ordered visitation if it is in the best interest of the child. What do the grandparents offer to the child that would be in the child’s best interest? Barranti states that the relationships between grandparents and grandchildren are “unique in that the relationship is exempt from the psycho-emotional intensity and responsibility that exists in parent/child relationships” (Barranti: 1985, p. 346). In other words, the relationship that the grandparents hold with their grandchildren is sacred in a way that it alleviates the pressure from the relationship the grandchildren have with their parents. Barranti (1985) states that grandchildren find love, nurture, and acceptance in their relationship with their grandparents that give them a unique social interaction that cannot be offered by any other person, including the nuclear family. In general, having a grandparent around is not only healthy, but it is recommended for the well being of children whether they have adequate parents or not. In the light of when the courts say that the grandparents must prove that it is in the best interest of the child for the court-ordered visitations, it is easy to see that the court is asking for the grandparent to provide evidence that the current custodial parent is a deviant person in society, or in some states proving that the grandparents lived with the child for a period of time.
Lastly I would like to focus on the case of Troxel v. Granville 2000. At first, a state court granted court-ordered visitation rights to the grandparents, the Troxels, over an adequate fit parent in Granville. Appeals were eventually heard until the case reached the Supreme Court, which ruled that “the state statute [Washington] was an unconstitutional infringement on the fundamental right of parents to rear their children” (Stein: 2007, p. 234). The famous decision of Troxel v. Granville came with consequences. According to Stein (2007), New Hampshire and New Jersey both repealed their grandparent visitation statutes and eleven other states reviewed and reconsidered statutes granting the right to grandparents to petition for court-ordered visits. The case shook and split America on where we stand on grandparent visitation rights when the parent is adequately fit. Some states like New Hampshire and New Jersey prefer to favor the custodial parent and not intervene with their liberty to rear a child and determine who or with whom their child interacts with and whom he does not. However, there are also state courts that have been more willingly to give statutes to grandparents seeking visitation rights. A suggestion for policy makers would be to review our ideal of the nuclear family and realize that we are an extended family now due to our high life expectancy rates. As Stein mentions, “changes in the law are necessary to reflect the reality of family life” in this period of modernized America we are living in (Stein: 2007, p. 236).
The influence social class has among legislation, the significance of the role of the grandparent, and the Troxel v. Granville case that split America, helps me evaluate these current policies on grandparent rights. When I put these factors all into consideration, I can only say shame on our American legislators and Congress for not trying to influence a state law that would give clear rights to grandparents to be pushed through. This issue falls under the category of “the times have changed, so should our policies” type of scenario. Unfortunately, I believe our policies on court-ordered visitations are unfair and distributed among the states unfairly as well. While some states benefit the adequately fit custodial parent, some states will favor the grandparent. They all explain that it all depends on what is in the best interest of the child. On the other hand, I believe it at boils down to the judge and what state you are located in.
When the state declares that the decision will be made in the best interest of the child, it already sounds traumatizing. After several studies and research have found that grandparents are healthy to the well being of the children, I fail to understand why adequate grandparents cannot obtain a state law that permits visitation without having to be court-ordered. If it were really in the best interest of the children, I would urge any court to stop with the court cases, which have mommy and daddy go to war with grandpa and grandma. Moreover, the winner of the case is not chosen by what is in the child’s best interest but by what suits the parents or grandparent’s own personal interest better (Nielson, Bucaria: 2009). Our constitution was written when slavery was legal and when women had no rights, lets not argue about how we cannot find our ways around the amendments. Grandpas and Grandmas all over the nation are here to stay for the long run; most are retired, and have nothing to lose in fighting until they get their well-deserving court-ordered visitation rights.
Clavan, S. (1978). The impact of social class and social trends on the role of
grandparent. The family coordinator, 27, 351-357.
Hartfield, B. W. (1996). Legal recognition of the value of intergenerational
nurturance: Grandparent visitation statuses. Generations, 20, n.d.
Barranti, C. C. R. (1985). The Grandparent/Grandchild Relationship: Family resource in
an era of voluntary bonds. Family relations, 34, 343-352.
Purnell, M., Bagby, B.H. (1993). Grandparents Rights: Implications for family specialist.
Family Relations, 42, 173-178.
Stein, J.T. (2007). Court-Ordered grandparent visitation: Welcome event or unwarranted
intrusion into family life? Social Service Review, 81, 229-243.
Nielson, T., & Bucaria, R. (2009). Grandparent Custody Disputes And Visitation Rights: Balancing The Interests Of The
Child, The Parents, And The Grandparents.
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Quadagno, J. (2011). Aging and the life course (5th ed.). New York, NY: McGraw-Hill









