Grandparents' Rights in Divorce

By Jim Thomas

Divorce is an anguishing process when you have children. Although sometimes overlooked, divorce can also be an anguishing process for grandparents, especially if the divorce restricts access to your son or daughter's children. In 2000, the Supreme Court wrestled with this issue and ratified the basic right of parents to make decisions about the upbringing of their children -- including who can see or visit their children. However, there are exceptions to this rule, and state legislatures and courts have taken widely differing positions regarding the rights of grandparents to successfully sue for visitation rights. This is especially true when parents are divorced or separated.

Troxel v. Granville

In 1993, Brad Troxel committed suicide, leaving behind his two daughters and their mother, Tommie Granville. The couple had never married and were estranged at the time of the suicide. Brad's parents had spent a lot of time with their two granddaughters until Tommie remarried and Tommie's new husband adopted the girls. After that, the grandparents' visits were limited, and the grandparents sued for the right to regular visits under a Washington state law that allowed such visits, if such visits were determined to be in the best interests of the children.

The Decision

The Supreme Court struck down the Washington state law on the basis it "unconstitutionally interferes with the fundamental right [of parents] to raise their children." The Court ruled there is a presumption that fit parents -- those who adequately care for their children -- make decisions in the best interests of their children, and those decisions generally should be free from interference by the state. The use of the term "fundamental right" by the Supreme Court is highly significant. Any law that interferes with a fundamental right receives the highest level of scrutiny by the Court.

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The Supreme Court's decision applies only to intact families. In these cases, parents can refuse to allow grandparents to visit their grandchildren. However, if the parents are divorced or separated, in many states, grandparents can sue for visitation rights. The burden of proof is high, however. In California, grandparents must prove there is a preexisting bond between the grandparents and grandchildren, and they must also prove the visits are in the best interests of the child. Even if grandparents surmount these hurdles, California courts are still required to balance the best interests of the child against the fundamental right of the parents to raise their children as they see fit. In some states, such as Ohio, grandparents can intervene during the divorce proceedings, or even after a divorce is granted, to ask for visitation rights.

Suing for Visitation Rights is a lobbying group for grandparents' rights and explains that some states are more restrictive than others when it comes to accepting lawsuits that ask for visitation rights. More permissive states, such as Hawaii and New York, only require a claim that visitation rights are in the best interest of the child. More restrictive states, such as Alabama and Oregon, allow claims only if visitation rights have been denied altogether. The most restrictive states, such as Minnesota and Pennsylvania, require that the grandparents have previously lived with and cared for their grandchildren before they may sue for visitation rights.

Adoption by Stepparent

As the Troxel v Granville case states, the right of parents to restrict or prevent visits by grandparents applies to intact families. When a parent divorces, the family is no longer legally defined as intact and grandparents can ask for visitation, assuming they meet the hurdles imposed by the legislature and courts where they reside. However, if the parent remarries and the spouse legally adopts the children, the family is once again considered intact, and the parent and stepparent have the right to restrict or prevent grandparents from visiting.

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New York Statute for Visitation


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