Visiting the 'Kids' Gets Harder

Jens Lucking/Taxi/Getty Images

Michigan and New Jersey are the latest players to weigh in on one of the most significant trends in family law—testing the legal right of grandparents to sue for visits with their grandchildren.

The high courts in the two states are sites of the latest skirmishes between grandparents and parents in a highly charged legal battle that has intensified nationwide—and one that has led some states to restrict, and even abolish, grandparent visitation laws.

The new limits reverse a 30-year-old trend in which grandparents in all 50 states gained the legal standing to seek visitation rights in court.

"Now state court decisions are all over the map," says AARP attorney Rochelle Bobroff. "There's tremendous confusion, tremendous conflict."

While very few family disputes go to court, grandparent advocates say, visitation rights are crucial because most grandparents play an invaluable role in the lives of grandchildren.

Prior to 1965, that role was not well recognized, and grandparents who were blocked from seeing their grandchildren, usually by the parents, had no legal right to seek visiting privileges. As divorce rates, out-of-wedlock births and drug use increased, states began passing laws bolstering grandparent rights when parents died, divorced, separated or were jobless or disabled.

Now the pendulum is swinging back, and more than a third of the states have narrowed those laws. One reason, says Traci Truly, a Dallas family law attorney and author of "Grandparents' Rights" (Sphinx Publishing, 2001), "was a perception that parents' rights had eroded." The reversals are a "reminder" that parents do have rights.

As a result, "very few" grandparents are winning in court now, adds Jeff Atkinson, adjunct professor of law at Chicago's DePaul University.

One high-profile case occurred in June 2000. In Troxel v. Granville, a case brought by grandparents, the U.S. Supreme Court sided with Washington state's high court in striking down a state law that allowed anyone—even a nonrelative—to seek the right to visit if it served the best interest of the child.

The grandparents in the case, whose son had died, sought more visiting time with their two granddaughters than the girls' mother granted. The court invalidated the state's visitation law as unconstitutionally broad, thus ruling for the mother. But the court stressed that the decision was not intended to affect visitation laws in other states.

Even so, says attorney Richard Victor, who will argue this spring before Michigan's top court for his client's right to see her granddaughter, the Supreme Court's ruling has been widely misconstrued, leading to weakened grandparent rights across the country.

"Absolutely, in most states it was easier [for grandparents] to win before Troxel," says Dallas lawyer Truly.

"The case was a landmark decision, but it didn't resolve the issue—the legal rights of grandparents regarding visitation," AARP's Bobroff says.

Since the ruling, Arkansas, Connecticut, Illinois, Iowa, Kansas and South Dakota have declared their visitation laws unconstitutional, joining Florida, Georgia, Oklahoma, Tennessee and Washington.

Even in the states where the highest courts have upheld the constitutionality of their laws (Kentucky, Maine, Massachusetts, Mississippi, Missouri, New Hampshire, Virginia, West Virginia and Wyoming), the courts "have substantially narrowed" them, Atkinson says.

Some appellate (intermediate) state courts have split over the constitutionality issue, while one-third of states haven't considered such cases, AARP finds.

Atkinson says courts now scrutinize factors like the quality of the grandparent-grandchild relationship and whether the grandparent ever acted as the child's primary caregiver.

Courts in Florida, Georgia, Iowa and Oklahoma have ruled that the "best interest of the child" test—a common standard in visitation rulings—is unconstitutional. In Maine grandparents must show a close relationship with grandchildren to get visitation rights.

Parent advocates welcome the changes. "It's great when you have mutually agreed-upon visitation," says Dante Brunetti of the Coalition for the Restoration of Parental Rights, but it's "unconscionable" when courts overrule parents' rights.

New Jersey's visitation law, one of the nation's narrowest, is being tested anew in a case brought by grandparents Lynn Jack and Patricia Bradt. Their daughter, now deceased, was divorced from her husband, who allegedly restricted the grandparents' visits with their two grandchildren.

AARP filed a friend of the court brief with New Jersey's Supreme Court supporting the constitutionality of the state's visitation law. (AARP is not involved in the Michigan case.)

AARP supports parents' rights and the visitation rights of grandparents when it's in the best interest of the child. "There's no doubt grandparents are important—even crucial—to their grandchildren's well-being," Bobroff says. "Visitation enhances those relationships."

Christopher J. Gearon is a freelance writer in Washington, D.C.