Courts diverge on third-party custody, visitation cases.

In the wake of Troxel v. Granville, 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 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 because it did not require a finding of parental unfitness.

In both cases, a minor child had been raised by maternal grandparents 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" 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 that parental custody would harm the child in order to rebut the statutory presumption 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, who represented the grandparents in Clark v. Wade. Previously, he added, custody cases 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 of Atlanta, who represented the grandparents in Driver v. Raines, was more cautious. He noted that with its 4-3 decision, the court forged an important compromise. "The decision requires a showing of harm by `clear and convincing evidence' instead of just `best interests' in order to deny custody to a fit parent," he said.

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 found that the state's grandparent visitation 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, TRIAL, Aug. 2000, at 84.) The Georgia, Ohio, and Kansas decisions all cited Troxel.