Grandparent visitation: over the river and into the courts.

Every state has a statute on grandparent visitation rights, but the case law is still developing in this emerging area of litigation.

In 1993, the Tennessee Supreme Court refused to award grandparents court-ordered visitation with their grandchildren, finding the visitation was an unconstitutional invasion of a fit parent's right to child-rearing autonomy.(1)

In 1997, an appellate court in the same state cited the 1993 ruling with approval but awarded grandparent visitation over the objections of a fit parent.(2) Why did one case succeed when the other failed?

The devil is in the details: a court's interpretation of the grandparent visitation statute, the child's family circumstances, the relationship between child and grandparent or between grandparent and parent, and even the type of hostilities that triggered the suit. This confusing grid of factors can be distilled into clear trends and patterns, however--patterns that can often distinguish the winning case from the case that is doomed from the start.

All states have enacted grandparent visitation statutes. These statutes confer standing on grandparents under certain specified circumstances to seek court-ordered visitation with grandchildren over the objections of the child's parents. All grandparent visitation statutes are alike in that they presuppose fit parents. If a parent is unfit, the situation is necessarily addressed by the state's child welfare legislation.

Most grandparent visitation statutes are intended to preserve an existing grandparent-grandchild relationship. This is clear either in their express terms or in the gloss of judicial interpretation.(3) A few grandparent visitation statutes have been interpreted as providing a right to intergenerational contact or an opportunity to establish a relationship that does not exist between grandparent and grandchild.(4)

Grandparent visitation statutes fall into three general categories. The most common type of statute gives grandparents standing to sue only when some disruptive event has already occurred in the child's life.(5) A typical precipitating event would be the death of a parent or the breakup of the parents' marriage. This type of statute also usually allows suit where the child is born out of wedlock. The guiding principle seems to be that suit should be permitted unless the child is part of an intact family consisting of his or her natural married parents.

The second type of statute contains no precondition and confers standing to sue regardless of family status.(6) The grandparent must simply allege that visitation would be in the best interests of the child and that the parents have prevented it.

The third type of statute is a fledgling category distinctly in the minority. Under this type, the grandparent must be able to demonstrate that the grandchild would be harmed absent court-ordered visitation.(7) The focus is on the child. Other family circumstances are considered only indirectly.

All categories of visitation statutes are alike in that they are products of political forces and are inevitably involved in a tug-of-war between supporters of grandparent visitation and the courts' tendency to impose limiting interpretations in deference to constitutional considerations.

This means that the statute that is here today may be gone tomorrow--repealed and replaced. It also means, however, that the terms of a statute may not mean what they appear to mean but may, instead, have been limited by judicial interpretation.

You need only compare Connecticut General Statute [sections] 46b-59 with the interpretation provided in Castagno v. Wholean.(8) The statute imposed no preconditions on the grandparent seeking to file suit. The court found an implied precondition, however, in that a grandparent could only sue when the grandchild's family had been disrupted by death or divorce. The court commented that this gloss was necessary to avoid an unconstitutional invasion of parental rights.

Case theories

The theory of the grandparent visitation case may seem excruciatingly simple to the grandparent client. The grandparent loves the grandchild. The grandparent is being denied contact with the child by what the grandparent perceives as a parent's unwise decision. The court should intervene. A grandparent visitation suit is never this simple, however, for all these cases implicate the parents' constitutional right to child-rearing autonomy.

The parent argues that this right is a liberty interest protected by the Fourteenth Amendment under its prohibition against deprivation of "life, liberty, or property without due process of law." Liberty is interpreted to include "not merely freedom from bodily restraint but also the right ... to establish a home and bring up children."(9)

The U.S. Supreme Court has concluded that this right includes parental decisions concerning "the upbringing and education of [their] children"(10) and is a right "so rooted in the traditions and conscience of our people as to be ranked as fundamental.(11) Child-rearing autonomy is entitled to the substantive protection of the Fourteenth Amendment. Infringement is permissible only if it is necessary to further a compelling state interest.

Courts have responded to this constitutional argument in three basic ways. Under the oldest approach, still alive and well in many jurisdictions, the court dismisses the parent's constitutional argument by holding that parental rights must give way when necessary to promote the child's welfare.

A typical opinion of this type might cite the Supreme Court's holding in Prince v. Massachusetts for the idea that a state "has a wide range of power for limiting parental freedom," including the power to require school attendance, regulate child labor, or require vaccinations.(12)

These opinions have received sharp criticism recently from advocates who argue that the court does not have authority to confer a perceived benefit on the child. Indeed, the Court's language itself supports the critics' argument since the examples used are well established as situations in which regulation is necessary to prevent harm either to an individual child or to a democratic society as a whole.

In Smith v. Stillwell-Smith (In re Smith), the Washington Supreme Court agreed with these critics and invalidated the grandparent visitation statute on federal constitutional grounds.(13) Although the court commented that where a child had enjoyed a substantial relationship with a third person, severance of that relationship might harm the child, it noted that the statute embodied no such "threshold requirement of a finding of harm."

The right to family privacy thus protected parents from court-ordered grandparent visitation based only on a best-interests-of-the-child analysis. Although the Washington Supreme Court's conclusion was not novel, the sequelae were. On September 28, 1999, the U.S. Supreme Court granted the grandparents' petition for a writ of certiorari.

A second judicial approach to the parent's constitutional argument has been to acknowledge the parent's right to child-rearing autonomy but to dismiss it by characterizing grandparent visitation as a minimal intrusion that does not "unduly burden" the parent's constitutional right.(14) The undue-burden test is designed to evaluate the constitutionality of legislation that has the effect of pitting two rights of constitutional magnitude against each other.

For example, in an abortion case--where the test was established--the interests at stake are the woman's right to privacy in making the abortion decision and the state's directly competing interest in regulating medical standards and procedures to protect human life.

A grandparent visitation case, on the other hand, implicates only one interest of constitutional magnitude: the parent's interest in child-rearing autonomy. However profound and well intentioned it may be, the grandparent's concern for a grandchild receives no federal constitutional protection. The undue-burden test cannot legitimately apply to a grandparent visitation case because, with only one interest at stake, there is nothing to balance.

A recent approach to resolving the conflict between court-ordered grandparent visitation and the parent's constitutional right is for the court to require a preliminary showing that visitation is necessary to avoid harm to the child.(15) This standard may preclude court-ordered visitation where visitation might otherwise occur.

Although the harm standard tends to favor the parent's case, it should not be treated as an inevitable advantage for the parent's counsel and an unmitigated disaster for the grandparent's counsel. The harm standard is the threshold in all other domestic relations cases where the state seeks authority to regulate family life. Its use harmonizes grandparent visitation issues with the related law. By legitimizing grandparent visitation law, the harm standard frees it from the risk that a decision may be based on a judge's whims or personal predilections.

In a few states, the conflict between court-ordered grandparent visitation and the parent's right to family autonomy is affected by state constitutional provisions. In Michael v. Hertzler, the Wyoming Supreme Court identified a right to familial association under its state constitution that applied to grandparents and children.(16) The court concluded that this right, coupled with the state's general interest in child welfare, was "an equivalent fundamental right" to the parent's right to childrearing autonomy. The court found that the grandparent visitation statute was sufficiently tailored to serve these state interests, satisfied strict scrutiny review, and was constitutional.

Conversely, in Von Eiff v. Azicri, the Florida Supreme Court found that the degree of privacy provided by the Florida Constitution compelled it to invalidate a grandparent visitation statute as facially unconstitutional.(17) The court noted that the state constitution's privacy provision was both broader and more protective than its federal counterpart and that no Florida court had ever allowed "government intrusion in personal decisionmaking" to survive strict scrutiny under this provision.

Best-interests analysis

If constitutional considerations raised by a grandparent visitation suit are surmounted or never raised at trial, the next step is an inquiry into whether court-ordered grandparent visitation is in the best interests of the child. The answer a court reaches will depend on the confluence of specific circumstances discussed below.

Analysis of three aspects of a child's life determine whether a court will conclude that grandparent visitation is in the child's best interests. The relationship between the grandparent and child is the starting point. But it is only a starting point.

Courts generally agree other factors must be considered and may prove to be more important than the relationship itself. These factors are the relationship between the grandparents and parents and the totality of the circumstances touching on the child's life.

Courts evaluating the grandparent-grandchild relationship focus on the length of the relationship and the frequency of actual contact as primary evidence that the relationship should be preserved through court-ordered visitation. A relationship that involves regular contact for a significant portion of the child's life, including some extended visits, will appear particularly worthy of preservation.

In Wolinski v. Browneller, the court's decision to award visitation was influenced by the fact that the child had enjoyed overnight visits with her grandparents every other weekend for most of her life?

Similarly, a court is likely to find that the grandparent-grandchild relationship is particularly significant when the grandparent has regular caretaking responsibility for the grandchild. In Pollard v. Pollard,(19) Olson v. Olson,(20) and Vanderpool v. Boone,(21) courts upheld visitation, noting that the grandparents had developed strong, positive relationships with their grandchildren because they had cared for them while the parent or parents worked, traveled, or attended school.

This first factor in the best-interests-of-the-child analysis may also include an inquiry into whether the child wants continued contact with the grandparent. A court will often treat the child's desire for a relationship as evidence that it is beneficial and worthy of protection.

In Graville v. Dodge, the court upheld a visitation award where it found the children "wanted and needed to have a relationship."(22) The court was specific in its assessment of the children's wishes, noting testimony that after a long absence from their grandparents "the children spontaneously ran smiling ... to embrace their grandma and grandpa."

In contrast, the court in Komosa v. Komosa vacated a visitation award, finding that although the grandmother and her 12-year-old grandson had an ongoing relationship, the child had testified that "visitation with his grandmother is unpleasant and he does not like it."(23)

This court, too, was specific in its assessment of the child's wishes. The court noted that in the past, the court-ordered visitation had interfered with the child's athletic activities, "some of which his grandmother requires he miss in order to visit with her." Although the grandparent-grandchild relationship was well established, the child's own perspective suggested that it should not be continued.

Because this first factor in the analysis focuses on the grandparent-grandchild relationship, a grandparent's desire for a relationship that does not exist is usually considered insufficient to support an award of visitation. In Lucero v. Hart, the court held that visitation would not be in the child's best interests where the record failed to show any "prior significant interaction" between grandparent and grandchild and, in fact, demonstrated that the child did not even know who the grandmother was.(24)

In O'Brien v. O'Brien, the court held that the grandfather's petition for visitation was legally insufficient because it included only conclusory statements that visitation was in the best interests of the child and "d[id] not even allege that [the grandfather] has ever had any contact, meaningful or otherwise, with the child he now seeks to visit."(25)

Indeed, even when geographical distance makes personal contact difficult, courts will often require proof of a relationship established through letters, cards, and gifts. In Ward v. Dibble, the court responded to the grandmother's assertion that she had no relationship with her grandchildren because she was financially unable to visit them by noting disapprovingly that the grandmother did not write the children a single letter in five years.(26)

The second factor in the best-interests-of-the-child analysis--the grandparent-parent relationship--requires the court to consider whether the level of hostility militates against visitation. If the hostilities are too great, either the parent-child relationship might suffer from the grandparent's contact with the child or the child might be traumatized by being thrust between warring adults.

While many older opinions dismissed grandparent-parent hostility as a given in any grandparent visitation suit, most recent decisions attempt to distinguish between the deeply rooted hatred that would militate against visitation and friction that does not rise to that level. In Kennedy v. Kennedy, an Indiana appellate court affirmed a lower court order denying visitation where the grandmother and father had bitter and long-standing disagreements regarding the child's upbringing that neither counseling nor court order had been able to cure. The court noted that "the trial court could have properly concluded that the acrimony between father and grandmother was unhealthy for [the child] regardless of the meaningful contact that [the child] may have had with Grandmother in the past."(27)

Where the hostilities are not quite as virulent, a court may elect to order visitation but impose conditions on any contact. In In re Zitka, the defendant mother had argued that the grandparents should not be granted visitation because they refused to acknowledge that the children had attention deficit disorder and would not cooperate in its treatment.(28)

Upholding the visitation award, the court observed that by the time the award was made, the grandparents had acknowledged the diagnosis. Indeed, the court noted, the trial court had included the grandparents' expressed willingness to follow the children's treatment plan in the order as a condition of visitation.

Similarly, specific evidence that a cooperative relationship has existed between parent and grandparent or credible proof of the grandparent's future intention to cooperate with parenting decisions may influence a court to award visitation. In Vanderpool v. Boone, the mother had originally suggested visitation with the child's paternal grandmother in the same proceeding in which the father's rights were terminated.(29) When the mother later remarried and sought to end visitation, the court declined to find that circumstances warranted a change.

The court observed that not only had the mother originally suggested visitation, but the grandmother had consistently supported the mother's authority as the parent, to the point of sending away her son --the child's biological father--when his unexpected visit at her home coincided with the grandchild's visit.

The final factor in the best-interests-of-the-child analysis--the totality of the circumstances--allows the court to look beyond individual family relationships and incorporate significant tangential concerns into its analysis.

In Whoberry v. Whoberry, the court approved a visitation award, noting that under the circumstances--the father was on active military duty--the child's primary contact with him had to occur through the grandparents.(30) By contrast, in Coulter v. Barber, the court denied visitation even though the grandparents could demonstrate a previous relationship with the children.(31) The court based its denial on general circumstances, holding that the grandfather's relentlessly critical and demeaning manner toward everyone created "stress, tension, and uncertainty."

Which cases will succeed and which will fail? At one pole stands the 1993 Tennessee Supreme Court decision in Hawk v. Hawk that court-ordered grandparent visitation over the objections of the child's fit, married, natural parents is unconstitutional.(32) Few, if any, courts in any jurisdiction are willing to disagree. This is true whether a court articulates the constitutional issues or simply cloaks its conclusion in a best-interests-of-the-child analysis. Both approaches seem to lead inexorably to the same conclusion: A child living in the uninterrupted custody of fit, married parents will suffer more harm than good in a grandparent visitation suit.

At the other pole stands the 1997 Tennessee Court of Appeals decision in Hilliard v. Hilliard, and cases like it, in which the child's family life has been disrupted and his or her custody placed at issue, and the grandparent has stepped up to the plate as a caretaker, custodian, or co-parent.(33) Few courts in any jurisdiction will deny visitation in these cases, whether they acknowledge that visitation is preventing harm to the child or not.

This continuum has a middle ground--a wasteland of warring adults where positive and negative factors may achieve an uneasy balance. The unfortunate attorney or judge mired in this situation may, at least, find comfort in the marginal comments of an exasperated judge on the Missouri Court of Appeals:

   We can only wonder how courts are to determine when visitation has been
   unreasonably denied where, as here, a parent and adult child have become so
   estranged that they can not communicate and act only to hurt one another.
   We can also only wonder what business courts have getting into such
   intra-family disputes.(34)

Notes

(1.) Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).

(2.) Hilliard v. Hilliard, No. 02A01-9609-CH-00230, 1997 WL 61510 (Tenn. Ct. App. 1997).

(3.) See, e.g., KAN. STAT. ANN. [sections] 38-1292 (1998); Emanuel S. v. Joseph E., 573 N.Y.S.2d 36, 39 (Ct. App. 1991) (interpreting N.Y. DOM. REL. LAW [sections] 72.

(4.) See, e.g., Hayes v. Hayes (In re Visitation of J.P.H.) 709 N.E.2d 44, 46 (Ind. Ct. App. 1999).

(5.) See, e.g., COLO. REV. STAT. [sections] 19-1-117 (1999).

(6.) See, e.g., DEL. CODE ANN. tit. 10, [sections] 1031(1) (1974 & 1998 Supp.).

(7.) See, e.g., GA. CODE ANN. [sections] 19-7-3(c) (1999).

(8.) 684 A.2d 1181, 1182-83 (Conn. 1996).

(9.) Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

(10.) Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).

(11.) Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled, in part, by Benton v. Maryland, 395 U.S. 784 (1969).

(12.) 321 U.S. 158, 166-67 (1944).

(13.) 969 P.2d 21 (Wash. 1998), cert. granted, 68 U.S.L.W. 3080 (U.S. Sept. 28,1999) (No. 98-138).

(14.) See, e.g., Herndon v. Tuhey, 857 S.W.2d 203, 208-09 (Mo. 1993).

(15.) See, e.g., Hawk, 855 S.W.2d 573, 580.

(16.) 900 P.2d 1144 (Wyo. 1995).

(17.) 720 So. 2d 510 (Fla. 1998).

(18.) 693 A.2d 30 (Md. Ct. Spec. App. 1997).

(19.) No. 532463, 1995 WL 534244, at *10 (Conn. Super. Ct. Aug. 25, 1995) (implicitly overruled by Castagno, 684 A.2d 1181).

(20.) 534 N.W.2d 547, 548 (Minn. 1995).

(21.) No. 01-A-01-9508-CH00358,1996 WL 135109, at *1 (Tenn. Ct. App. 1996).

(22.) Nos. 1 CA-CV 98-0104, 1 CA-CV 98-0150, 1999 WL 33278, at *2 (Ariz. Ct. App. 1999).

(23.) 939 S.W.2d 479, 482 (Mo. Ct. App. 1997).

(24.) 907 P.2d 198, 205 (N.M. Ct. App. 1995).

(25.) 684 A.2d 1352, 1354 (N.H. 1996).

(26.) 683 So. 2d 666, 667, 668 (Fla. Dist. Ct. App. 1996).

(27.) 688 N.E.2d 1264,1270 (Ind. Ct. App.), transfer denied, 690 N.E.2d 1189 (Ind. 1997).

(28.) No. C2-95-2515, 1996 WL 266406 (Minn. Ct. App. 1996).

(29.) No. 01-A-01-9508-CH00358, 1996 WL 135109.

(30.) 977 S.W.2d 946, 950 (Mo. Ct. App. 1998).

(31.) 632 N.Y.S.2d 270 (App. Div. 1995).

(32.) 855 S.W.2d 573.

(33.) No. 02A01-9609-CH-00230, 1997 WL 61510.

(34.) Komosa, 939 S.W.2d 479, 482 n.2.

Joan Catherine Bohl is an instructor at Southwestern University School of Law in Los Angeles.