Ensuring Grandparents’ Access
to their Grandchildren
By Arthur H. Kroll
The number of divorces has continued to increase dramatically. While some parents work out joint custody, more commonly one parent is granted primary custody. The sad result is that parents of the non-custodian parent are often cut off from their grandchildren. This is especially true where parents live apart and are separated by long distances. Since many grandparents are now living longer, they have more grandchildren and they are concerned about access. Many have become members of the Association to Reunite Families or similar groups because former in-laws may not always be cooperative.
Historically, parental right to raise children as they see fit was protected by the due process clause of the 14th Amendment to the US Constitution. However, more and more states now have grandparent visitation statutes. It is important to check your local law, but some principles discussed below are constant.
Actions Which Can Protect Access (short of litigation)
There are certain actions that grandparents can take that will enhance their visitation rights without resorting to litigation in family court. For example, it is important for grandparents not to be negative about the in-law custodian. It is important for grandparents to let him or her know their wish to continue to be involved with their grandchildren and their desire to continue family celebrations. It is often desirable to offer to help out when needed. For example, by taking care of grandchildren when he or she is taking vacation is often appreciated.
Similarly, it is important for grandparents to be involved in the education of their grandchildren. They should not place criticism or blame on the in-law for the divorce and should stay out of the middle. Often these actions alone will be sufficient for the in-law to be most gracious about visitation. A heartfelt letter by grandparents in the author's experience can result in visitation rights, if it is worded well.
Indeed, in one case I was involved in such actions by the grandparents increased their bonds to both their grandchildren and their in-law. In this particular case the grandparents became as close with their daughter-in-law as they were with their son. Both the grandchildren and the divorced parent remained part of the family.
If this action is likely to be unsuccessful then grandparents can get involved in the Separation Agreement between the two parents. By telling both your child and in-law of your desire to remain involved, visitation rights can often be included in the Separation Agreement. This will spell out when and how often visitation is to be provided to grandparents.
If both of these actions are unsuccessful, mediation can often result in an agreement between the parties. Visitation should be protected while divorce is pending or upon the death of the non-custodian parent. Visitation is often desired by grandparents for children born out of wedlock.
If negotiation, agreement, or mediation does not satisfactory resolve the issue, court proceedings often will provide grandparents with visitation rights. Twenty years ago, legal action for a grandparent denied access would have been most difficult. The courts hesitated to intervene in family situations except in extreme circumstances directly related to the child's welfare. The courts supported a traditional emphasis on parental rights and autonomy in child rearing. For example, in the 19th century the Supreme Court of Louisiana ruled that the parents' obligation to provide access to grandparents was a moral issue, not a legal one, and therefore was not enforceable by the court, and that the court should not intervene unless the parent was unfit.
Change in Law
In the past twenty years, changes in the law have enabled grandparents to be granted access to their grandchildren over parental objections. Most important, the adoption of the best interest of the child standard, as well as revelations of parental authority, have been related to the general shift of focus in decisions relating to children. Some states impose responsibility on the grandparents to prove that denial of access will harm the grandchildren.
Most states have laws permitting grandparents to petition for visitation upon death or divorce of an adult parent. This assures the grandparent the right to be heard in court, but it still remains for the court to decide if it is in the child’s best interest to visit with the grandparent.
As noted, many states provide reasonable visitation rights for maternal and paternal grandchildren. In many states grandparents can usually intervene in custody proceedings and obtain visitation rights, if such interest is in the best interest of the child. Studies of some psychologists have concluded that the stronger the ties with grandparents, the less likely it is that grandchildren will develop psychopathology as they grow older. This finding is helpful in court proceedings. Other studies concluded that such children become more effective parents and grandparents themselves.
Grandparent visitation legislation has risen quite differently from other domestic relation laws, which generally follows social change. The changes in grandparents visitation legislation is seen as the product of intense political activity by today’s older citizens who are greater in number, healthier and more politically conscious and powerful than in the past. The formation of grandparents rights groups is a growing phenomenon in the United States and Canada.
A recent case decided by the Supreme Court of New Jersey indicates the developing law and was viewed by grandparent associations as the critical test case.
In Moriarty v. Bradt, 2003 N.J., the court addressed the constitutionality of New Jersey's grandparent visitation statute. In a decision guaranteed to make loving grandparents breathe a collective sigh of relief, the Court upheld the statute. In so doing, the Court held that grandparents seeking visitation under the statute must prove by a preponderance of the evidence that denial of visitation would result in harm to the child.
The parent denying visitation relied on Troxel, a case where the U.S. Supreme Court ruled a Washington State visitation statute was unconstitutional because it allowed courts to grant visitation right to anyone (not just grandparents), when visitation may serve the best interest of the child.
The Supreme Court in New Jersey held the grandparent visitation right statute to be constitutional. However, it also found that in every visitation case, grandparents bear the burden of establishing by a preponderance of the evidence that visitation is necessary to avoid harm to the child. If there is a showing of harm, the presumption in favor of parental decision making will be deemed overcome.
Generally, a court will consider eight factors on deciding on whether visitation is in the best interest of the child:
-The relationship between the child and the grandparent
-The relationship between each of the child's parents, or the person with whom the child is residing, and the grandparent.
-The time that has elapsed since the child last had contact with the grandparent
-The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing
-If the parents are divorced or separated, the time sharing arrangement that exists between the parents with regard to the child
-The good faith of the grandparents in filing the application
-Any history of physical, emotional or sexual abuse or neglect by the grandparent
-Any other factor relevant to the best interest of the child.
In many cases in which the author was involved, courts granted reasonable visitation rights.
Fortunately, the law has evolved to recognize that often the continued association with the child by the grandparent through visitation is in the best interests of the child. However, a court process can be long and costly and can often hinder better relationships between grandparents and their in-law. In many cases, the issue can be resolved amicably though negotiation and discussion, or mediation, or in the Separation Agreement.
Arthur H. Kroll is Chairman and CEO of the Hartsdale, NY - based KST Consulting Group, Inc. and has lectured at numerous programs on grandparents' rights. He is a nationally known expert on estate planning and elder law, and is an adjunct professor at the University of Miami School of Law and New York University. He has served many grandparents seeking visitation right to their grandchildren and protecting grandparents from abuse or exploitation.