Courts diverge on third-party custody, visitation cases.In the wake of Troxel v. Granville Troxel v. Granville, 530 U.S. 57 (2000), was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for , a U.S. Supreme Court decision last year supporting parents' right to decide who sees their children, courts are split over how to handle third-party custody and visitation VISITATION. The act of examining into the affairs of a corporation.
2. The power of visitation is applicable only to ecclesiastical and eleemosynary corporations. 1 Bl. Com. 480; 2 Kid on Corp. 174. statutes. Three court decisions issued in February turn on whether the "best interests of the child" standard is sufficient to award custody and visitation to third parties over the objections of fit parents.
In a pair of cases, the Georgia Supreme Court upheld a state law providing that courts can award custody of a child to a close relative other than the parents when doing so is in the child's best interest and will best promote the child's welfare and happiness. A trial court had found the statute unconstitutional unconstitutional adj. referring to a statute, governmental conduct, court decision or private contract (such as a covenant which purports to limit transfer of real property only to Caucasians) which violate one or more provisions of the U. S. Constitution. because it did not require a finding of parental unfitness.
In both cases, a minor child had been raised by maternal grandparents grandparents npl → abuelos mpl
grandparents grand npl → grands-parents mpl
grandparents grand npl since infancy. When the father in each case applied for custody, the grandparents intervened and requested that custody be awarded to them. (Georgia High Court Hears Challenges to Third-Party Custody Statute, TRIAL, Dec. 2000, at 93.)
In overturning the trial court's decision, the Georgia high court noted that the statute includes a "rebuttable presumption A conclusion as to the existence or nonexistence of a fact that a judge or jury must draw when certain evidence has been introduced and admitted as true in a lawsuit but that can be contradicted by evidence to the contrary. " that parental custody is always in the child's best interest. The statute requires a third party--limited to relatives--seeking custody to "show by clear and convincing evidence clear and convincing evidence n. evidence that proves a matter by the "preponderance of evidence" required in civil cases and beyond the "reasonable doubt" needed to convict in a criminal case. (See: beyond a reasonable doubt) that parental custody would harm the child in order to rebut To defeat, dispute, or remove the effect of the other side's facts or arguments in a particular case or controversy.
When a defendant in a lawsuit proves that the plaintiff's allegations are not true, the defendant has thereby rebutted them.
TO REBUT. the statutory presumption A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A Rule of Law.
If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical in favor of the parent." Because the law includes this presumption, it passes constitutional muster, the court ruled. (Clark v. Wade, No. S00A1610 and Driver v. Raines, No. S00A2014, 2001 WL 135672 (Ga. Feb. 16, 2001).)
"This is the first time that a high court has ruled that the constitutional rights of fit parents can be overturned by a third party based on the `best interests' of the child," said Richard Tunkle of Clayton, Georgia Clayton is a city in Rabun County, Georgia, United States. The population was 2,019 at the 2000 census. The city is the county seat of Rabun CountyGR6. , who represented the grandparents in Clark v. Wade. Previously, he added, custody cases Noun 1. custody case - a legal action to determine custody (usually of children following a divorce)
action at law, legal action, action - a judicial proceeding brought by one party against another; one party prosecutes another for a wrong done or for protection of were akin to property rights cases, considering only the fitness of the parent; now there is precedent to consider the interests of the child.
David Webster David Webster can refer to several people:
However, he noted, "This is a victory for kids."
In a similar case, the Ohio Court of Appeals ruled that the state's third-party custody statute is unconstitutional. The Ohio law provides that if the court finds it is in the best interests of the child for neither parent to be awarded custody, then it may award custody to a relative of the child.
The court found that this statute is "unconstitutionally broad in that it applies a best interests standard rather than an `unfitness' or `unsuitability' of the parents standard and thereby infringes on a parent's fundamental right to raise his [or her] child." (Esch v. Esch, No. 18489, 2001 WL 173198 (Ohio Feb. 2, 2001).) The statute does not include the same "rebuttable presumption" as the Georgia law.
The Ohio case involved a dispute between the maternal grandmother, who had been granted temporary custody of the child after the mother developed drug and alcohol problems, and the father, who wanted to take over custody of the child.
In the third decision, the Kansas Supreme Court The Kansas Supreme Court is the highest judicial authority in the state of Kansas based in Topeka. Composed of seven justices, led by Chief Justice Kay McFarland, the Court supervises the legal profession, administers over the judicial branch, and serves as the state court of last found that the state's grandparent visitation Grandparent visitation. In some jurisdictions grandparents may have a legal right to have court ordered visitation (or access) of their grandchildren. In the United States all 50 states have a "grandparent visitation" statute that allows grandparents to ask a court to grant them statute is unconstitutional as applied. The law allows a court to grant visitation to grandparents if this "would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established."
The court ruled that in determining visitation, the judge may not presume that these criteria have been met. The burden of proof is on the grandparents. (State of Kansas v. Paillet, 16 P.3d 962 (Kan. 2001).)
The Kansas high court's decision closely followed the U.S. Supreme Court's decision in Troxel, holding that the statute was not unconstitutional on its face, but only in its application in this case. The court noted that "there is a fundamental presumption that a fit parent will act in the best interests of his or her child, and ... that presumption must be given special weight."
The case involved a dispute between the child's mother and the parents of the child's deceased father. After their son's death, the grandparents petitioned the court to establish their rights as grandparents and order visitation. The lower court ordered the visitation, although the grandparents presented no evidence that this would be in the child's best interests or that they had established a substantial relationship with the child.
In Troxel, the U.S. Supreme Court called a Washington state statute allowing third-party visitation over parents' objections "breathtakingly broad" and ruled it was unconstitutional as applied. (Troxel v. Granville, 120 S. Ct. 2054 (2000); Supreme Court Delivers Narrow Ruling on Grandparents' Visitation Rights In a Divorce or custody action, permission granted by the court to a noncustodial parent to visit his or her child or children. Custody may also refer to visitation rights extended to grandparents. , TRIAL, Aug. 2000, at 84.) The Georgia, Ohio, and Kansas decisions all cited Troxel.