Grandparents Custody and Visitation Rights

A Look into Grandparents’ Custody and Visitation Rights: The Importance of a Grandchild-Grandparent Relationship 

Monica Rios

University of Texas Pan-American

The population is aging in the United States; in the start of the twentieth century only half of twenty year olds had living grandparents compared to the 90% that was calculated in 2000 (Quadagno, pg 192).  Notably, this was due to increased life expectancy, which eventually leads to people occupying longer intergenerational relationships with family members (Quadagno, 2009).  Obviously, the family structure has changed along with the population, times are changing and so are the people; divorce rates have raised from 10% in the early to mid twentieth century to 50% in 2000 (Quadagno, 2009).  When a person is getting divorced and in need of assistance, they turn to their family members; which are usually the child’s grandparents, for support.

This is why Grandparent rights are an important topic for society as a whole for three beneficial reasons: First, grandparents give stability and security to their grandchildren and during a family crisis such as divorce or death children need stability; Second, it can be traumatic for a child to lose contact with a loving family member during a time when they need them the most; Lastly, just because a parent wants to cut ties from the grandparent does not mean the child wishes to sever ties as well. In addition, according to Quadagno, the involvement of grandparents in a family structure is important because it serves as a support bank for the parents and is valuable in the development of a child (2009).

Grandparents’ are a unique member of the extended family; they can serve just about any role that is needed of them: a role model, a listener, a babysitter, or a surrogate parent.  The relationship between a grandparent and a grandchild is important because visits with grandparents are a precious and beneficial experience that a child cannot derive from any other relationship (Fernandez, 1988).  Equally, the relationship a child creates with their grandparents is a happy and healthy one (Fernandez, 1988).  However, grandparents are excluded from many state statutes for visitation and custody.  The rights grandparents currently have are minimal when it comes to gaining custody of their grandchildren (in all types of cases), with their limitations increasing and their chances of gaining visitation becoming increasingly narrow (Ognibene, 2005).  Visitation rights are extremely hard to receive for grandparents, even more if the visitation is objected by the child’s legal parent and only under “special circumstances” is when a grandparent may be granted visitation (Stein, 2007).  My goal is to evaluate current grandparent rights (or lack there of) for visitation and custody of a grandchild and demonstrate the importance of a grandparent-grandchild relationship.

These policy issues are of concern for current and future grandparents in the United States, they affect every parents’ ability to see their grandchildren if anything should arise.  Federal and state laws determine grandparent rights; state laws has its limitations and challenges in awarding custody or visitation rights for grandparents.  Above all, the Supreme Court is reluctant to expand enumerated rights to grandparents by the Due Process Clause (Stein, 2007).  The Supreme Court sees that an extension of the Due Process Clause to grandparents will continue to be a never-ending process, because the constitutional protection of a grandparent-grandchild relationship can lead to the requests of constitutional protection to any extended family member (Stein, 2007).

Before a person can ask for custody of a child, they would need to be capable to “stand” for petition, and grandparents are not included in the preference for grants of custody in most state statutes (Ognibene, 2005).  This is shown in an article from Michelle Ognibene (2005), she stated, “Generally, state law does not require petitioners for adoption to notify grandparents of adoption proceedings, nor does it require grandparents’ consent” (pg 1475).  She then proceeds to explain that the courts may even deny grandparents the right to intervene in any parental termination case, following with the state taking the child away and not allowing the opportunity for grandparents to offer an alternative home for the child (Ognibene, 2005).  Once parents rights are terminated, so are the grandparents and once a child has gone into foster care or has been adopted, it can mean the end of the grandparents relationship with the child (Ognibene, 2005).  It is not stated in the Due Process Clause of the Fourteenth Amendment, but it provides an in context assertion that grandparents can have greater rights in custody; considering that “grandparents have a fundamental liberty interest in their familial integrity and companionship with their grandchildren” (Ognibene, 2005, pg 1477).  Although, grandparents are not protected by the constitution per say, there are still ways in which grandparents can be extended some protection found in constitutional protection in family matters (Ognibene, 2005).

One way a grandparent can gain custody of their grandchild is by asserting the freedom on intimate association, where grandparents demonstrate that their relationship with their grandchild is so essential and intimate that they fall within the Fourteenth Amendments protection of “liberty” (Ognibene, 2005).  Nevertheless, there are still challenges that grandparents still face when asserting towards this protection, there are many state statutes that require a grandparent who is petitioning custody of a child to prove that the two do in fact have an emotional attachment that is in the child’s best interest (Nielson and Bucaria, 2009).  Lastly, if a parent has been considered unfit or has abandoned the child, a grandparent has a good case in gaining the custody of their grandchild (Nielson and Bucaria, 2009, pg 525)

At common law, grandparents did not have the right to petition visitation rights for their grandchildren; with recognition, acting without federal interventions, all fifty states enacted statutes by the year 2000 (Stein, 2007).  The statutes enacted gave grandparents the right to petition courts for visitation rights over the objection of a fit parent (Stein, 2007).  In other words, even if parents had made the decision that they did not want grandparents to have visitation towards their child, grandparents were then allowed to petition against it.  However, there are still some limitations that grandparents face in their thought of petitioning.  One limitation is, a majority of state statutes do not grant grandparents the right to petition visitation if both of the child’s parents are still married.  Another limitation is that some statutes require the grandparent to prove that the child’s parents have been divorced or separated for a certain period before being able to petition for custody.  Lastly, if one parent is deceased or has been missing for a long period; then a grandparent is able to petition for custody of a child.

Moreover,  since the family structure has dramatically changed due to high divorce rates, AIDS, the acceptance of single parenthood, and excessive substance abuse; there is consensus that the grandparents assume the roles of primary caretaker towards their grandchildren (Stein, 2007).  The fact that some state statutes are acknowledging these changes and their effects on the modern family and because of this conferring grandparent rights, thus, it increases the number of custodial care of children for parents that cannot and will not do (Stein, 2007).

I will be focusing on the importance of a nurturing intergenerational grandparent-grandchild relationship and how it is sometimes overlooked within state statutes, custody, and visitation cases.  The evaluation of these policies that have been enacted with increasing limitation makes it incredibly hard for a current grandparent to gain custody or visitation towards their grandchildren, especially, when the child has been put under custody of the state or has been adopted.  This influences future cohorts, since anyone who currently has children or will have children in the future may be put in any situation without knowledge or recognition of what their rights are, he will be affected in the loss of a loved one.

The recognition of the value of intergenerational relationships and its importance are currently noted in most of the resources used for this paper; most state statutes hardly acknowledge the role of the grandparent (through rights) in the case of custody for a child.  What I first noticed when reading the resources was that the courts first focus is on “what is in the best interest of child”, when making determinations.  According to Tara Nielson and Robin Bucaria (2009), the courts look at the “totality of the circumstance” because they are no longer required to base a decision on one fact (pg 571).  They state, “the courts take into account: the wishes of the parent (s); the wishes of the child; the relationship between the child and the parent (s), siblings, or any other person who may significantly affect the child’s best interest” (Tara Nielson and Robin Bucaria, 2009, pg 571).  This sums up what I have read in what courts use when determining most custody and visitation cases that involves a child.  Michelle Ognibene (2005) also acknowledges a child’s best interest, she explains that many state statutes contain a preference of granting custody to those who have the closest emotional ties to the child.  Ognibene’s (2005) view on state statutes in a child’s best interest and adoption is, “although adoption ultimately turns on a determination of the child’s best interest, a failure to notify grandparents adequately, or to prefer their petitions, ought to be regarded as a violation of the grandparents right to due process”(pg 1473).  Ognibene’s article constitutionally analyzed grandparent’s rights and focused on the imbalance statutory framework that left grandparents in the dark by not requiring preference or notifying them when their grandchildren were put into state custody; thus, disadvantaging the grandparents when trying to compete with the state officials and foster care (Ognibene, 2005).  Like Ognibene’s views on the rights for grandparents to become first in line to petition for their grandchildren; Patricia Fernandez (1988) shows a similar view when she says: “even if adoption is in the best interest of the child, the disruption of beneficial relationships created by lack of continuing contact may be traumatic for the child” (pg 120).

According to Theodore Stein, grandparent visitation rights fall under the law of domestic relations and is governed by state law, which means legislation has no authority over the area; although, they can influence the states to enact legislation in support of grandparent visitation rights (2007, 232).  In the subject of grandparent visitation rights, the best interest of the child and parental autonomy are what is most focused on in research.  However, there have many twists and turns in grandparents’ visitation rights throughout the decades that have probably left the older, more experienced grandparents with whiplash. Three of the articles used in this research explain the evolution of grandparent visitation rights mostly because it had risen in the nineties and swiftly declined in 2000 following the Troxel Vs Granville case.  According to W.B Hartfield, during the nineties, in response to social phenomena (including political activism from older citizens and high divorce rates) state legislators acknowledged the importance of grandparent’s values and morals towards grandchildren that lead to the expansions of enactments in grandparent visitation rights in every state in the U.S. (1996).  Although there are still enactments for grandparents’ visitations, all of the states have narrowed and limited variations in most cases.  After the “years of the grandparent” as Hartfield would call it, a case in 2000 revolutionized most of the previously enacted rights for grandparents, Troxel Vs Granville.  In general, the case went from court to court granting visitation to the grandparents against the parents’ wishes; in conclusion, the Court of Appeals reversed the lower courts visitation order and dismissed the Troxel’s petition for visitation (Tara Nielson and Robin Bucaria, 2009, pg 527).  The reason why the higher court reversed the previous granted visitation is because it is unconstitutional for the government involvement in the private realm of the family, and also because there is a presumption that fit parents are able to act in the child’s best interest in the way they raise them (Tara Nielson and Robin Bucaria, 2009, pg 527).

Discussion of the Academic Research

All of the previous information leads to one of the focuses that are used to determine the visitation rights of grandparents, which is, parental autonomy. Why does it help determine visitation rights?  Nielson and Bucaria’s (2009) reason says, the presumption of parental autonomy rearing a child and in the presumption in favor that a parent is fit to make the best decision for their child, makes it harder for grandparents to obtain visitation rights when it is contrary to the wishes of the biological parent (pg 522). Michelle Ognibene also relates parental autonomy to the custody of children, that it is established parents have the rights to exclusive control over the decisions made pertaining their children because the courts regard these rights as “far more precious” than other rights (2005).

The second focus that courts use to determine visitation rights for grandparents are “the best interests theory”, as Patricia Fernandez calls it.  Every person has his or her own views and opinions on a child’s best interest, and I found that Patricia Fernandez has the most interesting views on it.  She first initiates that legislations had failed to define grandparent visitation rights adequately by its practice of the right (1988).  Shen then boldly states “Legislative pronouncements on a child’s best interests usually provides no guidance to what those interests are” (1988, 122).  This was the last research article I read, as I realized that there was not much guidance in what exactly is  in the child’s best interests, I assume that every state has their own limitations and requirements, but, there is not one exact definition of what a child’s best interest is.  On what grounds do the states base their “child’s best interest” on? According to Tara Nielson and Robin Bucaria, the standard of a child’s best interest was “the totality of the circumstance” which was stated earlier in the paper, is some ways that courts might look upon when approaching certain cases.  According to Stein, each courts standards on a child’s best interest is narrow and limited.  Some states clearly compel the grandparents to prove that visitation is in the best interest to the child (Stein, 2007, pg 233).  Arkansas defers the decision to the fit parent (Stein, 2007, pg 233).  California grandparents must show that visits are in the child’s best interest; and in Massachusetts, petitioning grandparents must show that the objecting parents are putting a burden and substantial risk to emotional welfare of the child (Stein, 2007, pg 233).  Consequently, the standards for grandparent visitation rights all vary from state to state law.

Throughout the sources, I found some interesting and important suggestions that can help the policies and rights that have interfered with past and current cases.  Theodore Stein (2007) suggests that the courts make more equitable co parents for children in custody. For instance, this suggests that the state offers any relative that has co parented the child in custody the right to be an equitable parent, since, grandparents are not the only relatives that a child can form deep attachments too.  Patricia Fernandez (1988) recognizes that times are changing and there are more people having children at a young age and out of wedlock; she believes that parenting is a learned skill (pg 113).  She suggests educating young abusive and neglectful parents on better skills on parenting and providing” watch dog” supervision to for troubled families (1988, pg 113).  This is a unique suggestion that I think will serve better over the methods of permanently throwing the children straight into foster homes Michelle Ognibene (2005) suggests that the grandparents be included in Due Process, so that they will be able to be notified of custody proceedings and most significantly be preferentially considered in custody cases (pg 1496).  Lastly, Nielson and Bucaria (2009) suggest a non-litigation centered approach that can help increase the likelihood that the outcome of visitation related litigation is in the best interest of the child, and also a process by which the outcome can be obtained (pg 530).  All of the academic readings that I have read and along with their suggestions have ultimately helped me evaluate the current visitation rights for grandparents in certain areas and lack of custody rights that are seen throughout the readings.  The entire research articles had example cases and the evolutions of the custody and visitation rights that aided me in realizing how the modern family has changed to and the problems that millions of families are going through.

The importance of a grandchild-grandparent relationship is known and acknowledged throughout the research of grandparents’ rights on visitation and policy.  However, it is but parental autonomy that has the foremost determination on visitation and custody rights with grandparents. Parental autonomy has been seen as one of the most precious rights, that cannot be broken because it is stated in the fourteenth amendment that parents have the fundamental right in the control, care, and custody of their children.  It has also been seen as unconstitutional for courts to force visitation with grandparents when a fit parent has objected to it.  A child’s best interest is another important factor in determining the visitation and custody and there are variations, limitations, and challenges that differ from state to state.  Moreover, as I see it, in the “child’s best interest” is not even fully defined or used properly in granting custody to anyone. Furthermore, it was constantly repeated that grandparents are not included in common law, nor due process, so they basically have no legal rights of custody or visitation, just ‘moral rights’.

Policy Implications

After being educated on grandparent’s rights, I would definitely make some changes in the current policies and rights for grandparents. I suggest that states should change their current policy of Due Process by including grandparents so they be notified when their grandchildren have been in custody of the courts and might be put in foster care, so the grandparents may be able to petition for custody (Ognibene, 2005). Along with that, the states should prefer grandparents during custody proceedings as well. By preferring grandparents in custody proceedings, it would cost less by having states cut down costs on paid custodial parenting. In addition to cutting down costs, by preferring grandparents over foster parents in custody proceedings can avert many conflicts between grandparents and foster care parents that can disrupt the child’s life, so, it would be in the child’s best interest to prefer custody to the grandparents so they child lives a valuable life (Ognibene, 2005). Throughout this research I have found these few suggestions most vital when thinking of new policy implications for grandparent rights. Granted, I believe that the inclusion of grandparents in a child’s life is important in the child’s upbringing.

Fernandez, P. S. (1988). Grandparent Access: A Model Statute. Yale Law & Policy Review, 6(1), 109-136.

Hartfield, B. W. (1996). Legal Recognition Of The Value Of Intergenerational Nurturance: Grandparent Visitation Statutes In The Nineties. Generations, 20(1), 53.

Nielson, T., & Bucaria, R. (2009). Grandparent Custody Disputes And Visitation Rights: Balancing The Interests Of The Child, The Parents, And The Grandparents. Journal of Law and Family Studies, 11, 521-530.

Ognibene, M. (2005). A Constitutional Analysis of Grandparents’ Custody Rights. The University of Chicago Law Review, 72(4), 1473-1499.

Quadagno, J. (2011). Family Relationships and Social Support Systems. In Aging and The Life course: An Introduction to Social Gerontology . (5th ed.). (p. 512). Boston, Massachusetts: Macgraw-Gill Higher Education.

Stein, T. J. (2007). Court-Ordered Grandparent Visitation: Welcome Event or Unwarranted Intrusion into Family Life?. The University of Chicago Press, 81(2), 229-243.