grandparent visitation rights

Transcription

1 What we need to know about grandparent visitation rights Grandparent visitation laws represent one way in which the State of Oklahoma is working to preserve family ties (Skrapka v. Bonner and the State of Oklahoma, 2008). As grandparents advocate for their rights (Grandparent Resource Center, n. d), a new legal conflict is emerging. The new legal conflict exists between the government s role in protecting the rights of parents and allowing grandparents to visit their children (Henderson, 2005; Henderson & Moran, 2001; Soto, 2001; Troxel v. Granville, 2000). Therefore, in this document readers have a brief overview of parental rights, the right to family, and grandparent visitation rights. Readers also will find a summary of the U. S. Supreme Court s decision about grandparent visitation. The next section summarizes Oklahoma s grandparent visitation law. Because this document covers legal concerns, those terms, definititions and provisions are used. Two of Five Fundamental Rights The constitution and common law practices protect each citizen s right to parent and to have a family. Several U. S. Supreme Court decisions have protected a parent s right to rear their children as they see fit. The Court also made decisions about the right to family. The Right to Parent: We have the fundamental right to the care, custody, control, and companionship of our children. Parental rights are a constitutional right (Harvard Law Review, 1980). The U. S. Supreme Court also has protected the rights of parents (e.g., Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Stanley v. Illinois, 1972; Wisconsin v. Yoder, 1972). The Right to Family: All citizens have a fundamental right to personal and family relations (Loving v. Virginia, 1967; Moore v. the City of East Cleveland, 1977). Citizens may spend time with anyone they choose. They also have the right not to spend time with whomever they choose. The government is to stay out of the private affairs of families (Mnookin & Weisburg, 2005). Society welcomes grandparents who decide to rear their grandchildren. Yet, family law has not recognized grandparents as legitimate members of families. The U. S. Supreme Court did protect a household headed by a grandparent because it functioned like a traditional family of parents and children (Moore v. the City of East Cleveland, 1977). Grandparent Visitation Rights Grandparent visitation is not a constitutional right. Grandparent visitation rights are merely statutory rights, given by state legislatures. In any case, grandparents have the burden of proving their case. All states have some form of grandparent visitation laws. Among those laws that permit grandparents to file for visitation rights, there are two primary types restrictive and permissive. Restrictive Grandparent Visitation Laws Derivatives of right: These laws allow grandparents to petition for visitation when their own child does not have access to their grandchild due to death, or parental incompetence, unfitness, or incarceration (Bostock, 1994; Gillman, 1995; Hartfield, 1996; Walther, 1997).

2 Case Example: After the death of the father, the mother had custody of the child. She allowed the grandparents to visit their grandchild (In re the Matter of Grandparental Visitation of C. G. F., 1992; Michaels, 1993). Visitations slowly decreased until the mother remarried. After her marriage, the mother refused to allow visits. Not long after the marriage, the stepfather filed for adoption. The grandparents filed for visitation rights. The trial court granted visitation, stating it was in the child s best interest. Nevertheless, grandparent visitation rights would terminate after an adoption. After the adoption of the child, the grandparents opposed the loss of their visitation rights. The Court of Appeals backed up the trial court s decision to stop the visitation after the adoption. The Wisconsin Supreme Court reversed the Court of Appeals decision. The paternal grandparents had a lawful right to visitation because the father continued to hold his parental rights, even in death. Since the father continued to hold his parental rights,the grandparents earned their rights through their son. The judges supported the best interest of the grandchild, allowing the child to continue his or her relationship with the grandparents (Henderson, 2005; Michaels, 1993). If, however, the parent of the child loses his or her parental rights, then grandparents likewise lose their legal link to the child (Balzer, 1994; Bostock, 1994; Gillman, 1995; Hartfield, 1996; Walther, 1997). Family Disruption: Divorce, death of a parent, parental unfitness, completion of military duty, and abandonment are forms of family disruption. These situations may provide an opportunity for grandparents to seek visitation with their grandchild (Henderson & Moran, 2001). Permissive Grandparent Visitation Laws Permissive laws focus on continuing strong relationships between grandparents and grandchild. These laws also focus on promoting the best interests of the child (Balzer, 1994; Bohl, 1996; Hartfield, 1996; Jackson, 1994). Strong relationships may mean a grandchild who lives with a grandparent for an extended period. It also may mean grandparents who act like a parent to their grandchild (Balzer, 1994; Bostock, 1994; Walther, 1997). Sometimes it refers to grandparents who financially provide for their grandchildren. Other times, laws allow judges to consider grandparents who have a deep concern for their grandchildren. Some laws allow judges to consider grandparents who have a significant relationship with their grandchild. Grandparent visitation laws do not automatically give grandparents the right to file a visitation request. Grandparents must have a legal right to go before a judge, meaning they must have legal standing (Black, Nolan, & Nolan-Haley, 1991). Some states, like Oklahoma, allow grandparents to file for visitation rights under certain circumstances, such as divorce, death of parent, and parental unfitness.

3 Court Outcomes The first court granted the grandparents visitation. The Court of Appeals, the second court, dismissed the visitation petition and terminated the visitation order. The decision of the Washington State Supreme Court favored the mother and adoptive father. The state supreme court denied the visitation order because parents have a right to rear their children as they see fit. The U. S. Supreme Court: Grandparent Visitation Rights TROXEL V. GRANVILLE (2000) The Story The parents of the two girls never married. The parents ended their relationship. Afterwards, the father moved in with his parents. The children visited the father in his parents home. Consequently, the paternal grandparents saw the girls a lot. They attended the girls sport functions. The grandparents actively followed their school progress. The father committed suicide. Shortly afterwards, the mother stopped visits between the paternal grandparents and the two girls. The grandparents filed for court-ordered visitation. Sometime between the lower and appellant court decisions, the mother remarried. The stepfather adopted the child. Adoptive parents, in this case the stepfather, have the same rights as biological parents. Consequently, the parents argued that the adoption cut off all legal ties with the paternal grandparents. The Appeal The U. S. Supreme Court concluded that the rights of parents prevail over the rights of grandparents. The government may only intrude on the rights of unfit parents. If there is threat of harm to the child then the government may interfere with the rights of parents. Traditionally, these are the only compelling reasons for the government to intrude on the rights of parents. Giving third parties, anyone but parents, visitation rights because it served the best interests of the child made Washington s law too broad. They concluded that the parents were fit to act in the best interests of the child. The U. S. Supreme Court said that the lower court failed to consider the mothers beliefs about the children s best interests. When parents are fit, courts must apply additional weight to the beliefs of the parents. The mother never sought to cut off all visitations with the grandparents. The dispute was about the restrictions placed on grandparental visitation. The U. S. Supreme Court did not address the constitutionality of Washington s law. The Court did not address the constitutionality of the laws in the other 49 states. It also did not require proof about harm to the child and third party visits (Soto, 2001). The Court made their decision without explicitly giving the legal standard of review. Interpretation Based on the U. S. Supreme Court decision, parental rights surpass that of grandparents. The government may only intrude on the rights of unfit parents. When a child is in danger of harm, the government may interfere on the rights of parents. These are the only compelling reasons for the government to intrude on the rights of parents.

4 Oklahoma s Grandparent Visitation Law Title 10. Children, Chapter 1. General Provisions 10 Okl. St. 5 (2007) When Do Grandparents Get Visitation Rights? Independent of the rights of the parents, grandparents may seek reasonable visitation with their grandchildren. Grandparent visitsmust serve the best interests of the child. See the summary on the best interests of the child. Grandparents may seek visitation with their grandchild when: The parents are unfit. The child would suffer harm or potential harm without visits from the grandparent(s). Grandparents may seek visitation with their grandchild when: A married couple has filed for a divorce or separation. A married couple has filed a motion to annul the marriage. The grandchild s parent, the child of the grandparent, has died. In this case, the grandparent must have had a relationship with the child before the parent died. Exceptions Grandparents may not seek visitation with their grandchild when: Another person has legal custody of the grandchild. The grandchild does not live in the home of a parent of the child. Grandparents also may seek visitation with their grandchild when a parent has had a felony conviction and the parent is in jail. The grandparents had a relationship with the grandchild before the parent went to jail. If the grandparent had custody of the grandchild, he or she may seek visitation with their grandchild. (See Section 21.3 of this law.) The judge must determine whether the grandparent had a court order for custody. Judges must determine if the grandparent had a strong, continuous relationship with their grandchild. Grandparents also may ask for visitation with their grandchild when the grandchild s parent has abandoned the other parent for more than one year. The grandparents must have had an ongoing relationship with their grandchild. Exceptions Grandparents may not seek visitation when: The child s parents never married. They may not obtain visitation if the parents do not live in the same household. Grandparents who have not had a strong, continuous grandparent-grandchild relationship may not seek visitation rights. See subsection D of the law. One or both parents have lost their parental rights. The district court must determine if there was a strong, continuous relationship between grandparent and grandchild. The judge may do so if the parent has lost his or her parental rights. Additionally, grandparents may get visitation rights if their child is unmarried and a minor. The district court must grant the visitation orders.

5 When are Grandparents Denied Visitation Rights? Grandparents will not receive visitation rights when a child s parents are in an intact nuclear family and the parents oppose grandparental visitation. If a biological parent dies, the surviving parent remarries, and the stepparent adopts the child, then any preexisting court-ordered visitation between the grandparent and grandchild remains. The court in charge of the adoption case may end or terminate grandparent visitation rights. Ending the grandparents visits with their grandchild must serve the best interests of the child. If a child is born to unwed parents and the father loses his parental rights, then his parent may not be able to request visitation rights unless: Paternity has been legally established or verified. The court decides that a grandparent-grandchild relationship previously existed. If a child is born to unwed parents and the mother loses her parental rights, then her parents shall not have a right to visit the child unless the court determines that a grandparent-grandchild relationship previously existed. Exceptions - The district court shall not give a grandparent visitation rights if their child, the parent of the grandchild, is unmarried and a minor unless: The adoption is finalized. Adoption proceedings will not end any prior court-order visitation rights unless the district court ends the court-order visits. Judges must give grandparents an opportunity to be heard before a court. The district court must determine that termination of grandparent visitation rights serves the best interests of the child. The child had been placed for adoption before he or she made 6 months of age. The Best Interests of the Child Judges must consider these factors when deciding the best interests of the child: The needs of the child. The importance of continuing the grandparentgrandchild relationship for the child s sake. The age and reasonable preference of the child according to Section 113 of Title 43 of the Oklahoma Statutes. The willingness of the grandparent(s) to encourage a close parent-child relationship. The length, quality and intimacy of the preexisting grandparent-grandchild relationship

6 The love, affection and emotional ties that exist in the parent-child relationship. The motivation and efforts of the grandparent to maintain the preexisting grandparent-grandchild relationship. The motivation of parent(s) to denying grandparent-grandchild visits. The mental and physical health of the grandparent(s), parents, and child. Whether the child is in a permanent, stable, satisfactory family and home environment. The moral fitness of the parent(s) and grandparent(s). The character and behavior of any individual who lives in or visits the homes of the parents or grandparents, and who will have contact with the child. The amount of time requested for the visits and the potential negative affect the visits may have on the normal activities of the child. If both parents are deceased, the benefits of continuing the preexisting grandparent-grandchild relationship benefits the child. Legal Terms Harm or Potential Harm means a showing that without the court-ordered grandparent visitation rights, the child s emotional, mental or physical well-being could reasonably be put at risk or would be jeopardized. Intact Nuclear Family refers to a family with married parents and children, the traditional family. Parental Unfitness includes, but is not limited to, a parent of the child or a person residing with the parent (10 Okl. St. 5, 2007, p. 3): Has a substance abuse problem, meaning chemical or alcohol dependency. In addition, when the parent has not sought treatment or treatment has been unsuccessful. Has a history of violent behavior or domestic abuse. Has an emotional or mental illness that obviously ruins his or her judgment or capacity to recognize reality or to control his or her behavior. Has failed to provide the child with proper care, guidance, and support. These failures have been harmful to the child. The parent s lack of interest in the child exposes the child to unreasonable risks. The parents influence or lack of influence on the child exposes the child to unreasonable risk. Exhibitis behavior or conditions that make him or her unable to care for the child. The parent may have circumstances or conditions that make him or her unable or unwilling to give a child reasonable parental care. Reasonable parental care requires, at a minimum, that the parent nurtures and protects the child s physical, emotional and mental health (10 Okl. St. 5, 2007, p. 4). Parental unfitness is not the same as the term used to terminate the right of parents as defined in other codes. Preexisting relationship refers to relationships occurring or existing before grandparents file for visitation rights.

7 if it is appropriate under the circumstances. Appearance at any court hearing signifies a waiver of the notice requirements before the actual hearing. Interference with Court-ordered Visitation If parents deny grandparents court-ordered visits or if parents interfere with these visits, then the court may: Jurisdiction After filing a petition, district courts have jurisdiction over cases about grandparent visitation rights. District courts may enforce grandparent visitation rights. The district court shall notify the person or parent who has custody of the child. The location or venue of grandparent visitation cases must be where there are ongoing court actions involving the child. If there is no ongoing court action, the case should be heard in the county where the child or parent lives. What Do Grandparents Do if the Parent Does Not Follow the Court s Order? When a grandparent has court-ordered visitation rights and a parent denies or gets in the way of these visits, then the grandparent may file a motion to enforce their rights. Once a motion is filed, the district court will schedule a hearing. At the initial hearing, the judge may order direct mediation or and set a hearing on the merits of the motion (10 Okl. St. 5, 2007, p. 4). After completion of any mediation, the mediator is required to submit a summary of the parties agreement to the court. The summary is called a record of mediation termination. Once the judge receives the summary, he or she will give an order that follows the mediation agreement. This occurs only if the parties reach an agreement. All parties will receive notice of a hearing. The court will send notices to the last-known address or an address ordered by the court. So it is important to give judges, attorneys, and mediators the correct information. Notice is to be given at least ten (10) days before the court date. The judge sets the date of the hearing. The court, however, may provide shorter notice Set a specific visitation schedule. Make up the lost visitation time. The compensated visit may include but is not limited to holidays, weekdays, weekends, and summer visits may be at the convenience of the grandparent. Post bond for parents who fail to follow the court-order visitation. Bond may be a cash payment or another secured means. Require payment of attorney fees, mediation costs, and court costs needed to enforce the court-ordered visit. These fees are to be reasonable. The parent who interferes or denies the court-ordered visits pays these fees. If a grandparent sought or filed a motion for the court to enforce their visitation rights, then the grandparent may be liable for attorney fees, mediation costs, and court costs. If parents or grandparents violate court-ordered visitation, then that person may be found in contempt of court. Grandparents seeking visitation with their grandchild are responsible for any transportation costs. They also are responsible for other costs related to the visit. The court may award attorney fees and costs. Judges decide what is fair to charge. The term grandparents also includes greatgrandparents.

8 References Balzer, C. L. (1994). Grandparent visitation rights constitutional considerations and the Need to define the best interest of the child standard. Land and Water Law Review, 29, Black, H. C., Nolan, J. R., & Nolan-Haley, J. M. (1991). Black s Law Dictionary. St. Paul. MN: West. Bostock, C. (1994). Does the expansion of grandparent rights promote the best interests of the child?: A survey of grandparent visitation laws in the fifty states. Columbia Journal of Law and Social Problems, 27, Bohl, J. C. (1996). The unprecedented intrusion: A survey and analysis of selected grandparent visitation cases. Oklahoma Law Review, 33. Retrieved on April 8, 2008 from (1 March 1999). Gillman, C. M. (1995). One big, happy family? In search of a more reasoned approach to grandparent visitation in Minnesota. Minnesota Law Review, 79: Retrieved on April 8, 2008 from (1 March 1999). Grandparent Resource Center. (n. d.). Grandparent visitation rights. Retrieved on Ma 19, 2009 from Hartfield, B. W. (1996). Legal recognition of the value of intergenerational nurturance: Grandparent visitation statutes in the nineties. Generations, 20, Harvard Law Review. (1980). Developments in the law: The Constitution and the family. Boston, MA: author. Henderson, T. L. (2005). Grandparent visitation rights: Circumstances of their success. Journal of Family Issues, 26, Henderson, T. L., & Moran, P. B. (2001). Grandparent visitation rights: Testing the parameters of parental rights. Journal of Family Issues, 22, In the Matter of the Grandparental Visitation of C. G. F., H. F., T. F. v. T. F. & D. L., 168 Wis. 2d 62; 483 N.W.2d 803; 1992 Wisc. LEXIS 199. Retrieved on October 15, 1998, from com. Jackson, A. M., (1994). The coming of age of grandparent visitation rights. The American University Law Review, 563, Loving v. Virginia, 388 U.S. 1; 87 S. Ct. 1817; 1967 U.S. LEXIS 1082; 18 L. Ed. 2d lexis-nexis.com. (1 March 1999). Meyer v. Nebraska, 262 U.S. 390 (1923). Michaels, B. (1993). Grandparent visitation rights. Digest of Recent Judicial Decisions, 14, Mnookin, R. B., & Weisburg, D. K. (2005). Child, Family, and State: Problems and Materials on Children and the Law (5th Edition). New York: Aspen. Moore v. the City of East Cleveland, 431 U.S. 494; 97 S. Ct. 1932; 1977 U.S. LEXIS 17; 52 L. Ed. 2d 531. Pierce v. the Society of Sisters, 268 U S. 510; 45 S. Ct. 571; 1925 U.S. LEXIS 589; 69 L. Ed. 1070; 39 A.L.R Segal, E. C., & Karp, N. (1989). Grandparent visitation disputes: A legal resource manual. Washington D. C.: American Bar Association, Commission on Legal Problems of the Elderly. Skrapka v. Bonner and the State of Oklahoma. (2008). 187 P.3d 202. Soto, N. M. (2001). Whose kids are they, anyway? Analyzing Troxel v. Granville and the current State of Oklahoma s Grandparent visitation statute. Oklahoma Law Review, 54. Retrieved on May 19, 2009 from Stanley v. Illinois, 405 U.S. 645; 92 S. Ct. 1208; 1972 U.S. LEXIS 70; 31 L. Ed. 2d 551. Troxel v. Granville, 120 S. Ct U. S. LEXIS 3767; 147 L. Ed. 2d 49; 68 U. S. L. W. 4458; 2000 Cal. Daily Op. Service 4345; 2000 Daily Journal DAR 5831; 12 Fla. W. Fed. S. 365: (14, July 2000). Walther, D. L. (1997). Survey of grandparents visitation rights. American Journal of Family Law, 11, Wisconsin v. Yoder. 406 U.S. 205 (1972). Acknowledgements Do not cite or use without the author s permission. Send all correspondence to: Dr. Tammy L. Henderson CFLE and Associate Professor Human Development & Family Science 233 HES Building Oklahoma State University Stillwater, OK OFFICE: tammy.henderson@okstate.edu Funded by the Oklahoma Geriatric Education Center