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Can Grandparents, Others Get Visitation? State Courts Are
in Disarray
Sheila Creaton Kelly
Lawyers Weekly USA, July 23, 2001
Where grandparents can obtain visitation over the parents'
objections, this state statute is constitutional, says West
Virginia's highest court in the latest ruling on an issue
that is sharply splitting the state courts. This is the most
recent case to apply a U.S. Supreme Court decision from last
year on this issue. The Supreme Court's decision was narrow
and left many questions unanswered, and the state courts are
reaching very different conclusions in trying to apply it.
Some cases involve parties other than grandparents. "The
real hot-button cases now are those involving third parties,
such as de facto parents, and cases dealing with sibling
visitation," says Boston child welfare attorney Andrew L.
Cohen.
In many cases, lawyers who sense a brewing conflict over
visitation may want to act quickly to protect their clients'
rights, experts say.
In the case last year, the Supreme Court examined a
Washington statute allowed anyone at all to obtain
visitation if it was in the child's best interests. The
Court said this was "breathtakingly broad" but didn't strike
it down; instead it said the statute was improper as applied
because the lower court put the burden of proof on the
parents, made few findings of fact and allowed more
visitation than necessary. (Troxel v. Granville, 530 U.S.
57; 2000 LWUSA 506; Search words for LWUSA Archives: Troxel
and Unanswered.)
The latest Case In the West Virginia case, the parents
divorced and the father's parents often cared for the child
and supervised visitation between him and his father.
However, when the mother remarried, her new husband adopted
the child and she cut off all contact with the grandparents.
They sought visitation.
The state statute, which applied only to grandparents,
provided that visitation could be ordered if it was in the
best interests of the child. The statute set forth 13
factors to be considered in making this determination,
including the effect such visitation would have on the
relationship between the child and his or her parents, the
relationship between the parents and the grandparents, and
the parents' wishes.
The mother argued that the statute was unconstitutional
because it interfered with her right to raise her child as
she saw fit.
But the court said, "The West Virginia statutory scheme
stands in stark contrast to the simplistic and
broadly-worded [one] scrutinized in Troxel. [O]ur statute
does not permit just 'any person' to file a petition under
the act. In addition to setting forth the axiomatic
standard of best interests by which any visitation decisions
are to be made under the act, [it] requires a correspondent
affirmative determination that such visitation 'would not
substantially interfere with the parent-child relationship'.
"Our statutory scheme addresses almost every concern
addressed by the Court in Troxel.[B]ecause our act expressly
requires consideration of parental preference and because no
grant of visitation can be accomplished with an initial
determination that such visitation will not detrimentally
affect the parent-child relationship, the constitutional
deficiencies presented [there]
are not present here."
The consideration of the parent-child relationship was
crucial to the court's decision, say lawyers.
"If visitation is detrimental to the parent-child
relationship, then it will be detrimental to the child,"
says Grafton, W.Va., attorney Chaelyn W. Casteel, who served
as a guardian ad litem in the West Virginia case.
What Should You Do? Lawyers who are handling a grandparent
visitation case should consider the following steps, experts
say: Act quickly. Lawyers shouldn't take their time, says
Elkins, W.Va., attorney David W. Hart, who represented the
grandparents in the West Virginia case. "It's often smart
to pursue a visitation order as soon as you think there may
be a problem in order to preserve your rights when a divorce
or adoption disrupts the family. For example, some statutes
say that if an order is in place before a stepparent adopts
the child, that order survives the adoption."
Review the statute carefully. Most statutes provide that the
best interest standard controls whether visitation is
granted, but each state has different criteria. As a result,
it's important to examine your state's requirements
carefully.
For example, in some states "the grandparent is precluded
from filing a request for visitation if they did not do so
at the time the parents divorced," says Bloomfield Hills,
Mich., attorney Richard S. Victor, who founded the
Grandparents Rights Organization. In others, you need
evidence that the parent is actually denying access to the
child, says Mark D. Olson, a Seattle attorney who
represented the grandparents in the Supreme Court case.
Request a guardian ad litem. Appointing a guardian ad litem
can be helpful for all the parties, especially the child,
say experts.
The Supreme Court's decision "increased the need for some
form of investigator to get involved and determine whether
the child's interest is enough to overcome the deference
that must be paid to the parent's decision. Now, judges
need to dig deeper and a GAL can provide that additional
investigation," says Cohen.
And in many cases a GAL will have the best chance of getting
to the bottom of any underlying issues.
"The GAL is not seen by the parties as an opponent, so
[they] tend to cooperate with him or her," says Casteel.
Consider mediation. Some experts say that mediation can help
resolve these cases.
"Often the issue at the core of the hostility that has
nothing to do with visitation. If mediation could resolve
that issue, then the parties will have an easier time
agreeing on visitation," says Casteel.
Mediation also allows the parties to step back and see the
"harm that a court case would bring to the child and
themselves," says Harvey G. Landau, a White Plains, N.Y.,
family lawyer. Mediators can also provide a forum for
investigating alternative methods of visitation, such as
Internet visitation, he says.
But other lawyers say that in such an emotionally charged
atmosphere, mediation is of little value.
"A lot of times you have a situation where the parent feels
the grandparent is undermining them or the grandparent says
'my daughter-in-law hates me.' It is unlikely that
mediation is going to work in these kind of situations,"
says Linda Medeiros, a Salem, Mass., family law
practitioner.
The earlier mediation is attempted, the better the chance
for success, experts say.
"As time goes on, these cases get more and more emotional.
If you try mediation early on, when the conflict first
arises, you have a better chance of success," says Hoboken,
N.J., mediator Anju D. Jessani.
Eroding Parents' Rights?
Some attorneys say that permitting grandparent visitation
erodes parents' rights. "Parents are allowed to make bad
decisions all the time. What makes the grandparent issue so
important that you can infringe on fit parents' right to
raise their child as they see best?" asks Medeiros.
But grandparents' rights advocates disagree.
"Parents' decisions can be overridden. Look at areas such as
vaccinations and schooling [where] parents are required to
take actions regardless of their viewpoint. The law looks at
the best interest of the child, not the best interest of the
parent," says Victor.
Grandparent visitation is especially necessary in today's
society, says Hart. "All over the country grandparents
occupy a special position in their grandchildren's lives.
They often act as caregivers. To completely sever that
relationship is not good for the child."
West Virginia Supreme Court of Appeals. State v. Honorable
Alan D. Moats, No. 29288. July 6, 2001. Lawyers Weekly USA
Nos. 9921112 (majority) and 9921114 (dissent). To link to
the full text of either of the opinions, go to:
www.lawyersweeklyusa.com/opinions |
