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May 10, 2007
Should the Law Recognize Grandparents’ Changing Roles?
Social scientists have long been aware of the significant role that grandparents in many minority and low-income families play in their grandchildren’s upbringing. These grandparents often live with or in close proximity to their grandchildren and provide much of their day to day care. The reasons are, in part, economic as the cost of child care has become prohibitive for many families, but they are also cultural. For example, African-American families have long been more likely than the rest of the U.S. population to rely on extended family members for child care. They are also more likely to encourage what I call quasi-parental relationships between grandparents and grandchildren as opposed to the “companionate” role that, according to sociologists Andrew Cherlin and Frank Furtensberg, the majority of grandparents play. Companionate grandparents play with their grandchildren, they buy them presents, and according to Dr. Kornhaber, the author of various grandparenting books, they become “a buddy,” “pal,” “secret confidante, and, at times, even a lighthearted conspirator” to their grandchildren. However, companionate grandparents have relatively little influence over their grandchildren’s upbringing and little desire for greater involvement.
If the majority of grandparents play only a companionate role in their grandchildren’s upbringing, current jurisprudence on grandparents’ rights makes a lot of sense. The Supreme Court in Troxel v. Granville (2000) held that parents’ constitutional right to raise their children as they see fit requires that their decisions to deny grandparents and other non-parents access to their children be granted “special weight.” Although the Court never defined “special weight,” the majority of lower courts interpreting Troxel have applied a presumption that parents’ decisions to deny non-parents visitation with their children is in children's best interests.
Even if we agree that parents’ decisions about who shall have access to their children should be entitled to deference where the petitioner has played a relatively small role in the child’s upbringing, we have to question whether the same standard should apply where the petitioner’s role has been significant. In Troxel, Justice Kennedy cautioned against rejecting the best interests of the child standard in cases where a non-parent seeking visitation had played "a caregiving role" to the child "over a significant period of time."
It turns out that an increasing number of grandparents are playing much more than a companionate role in their grandchildren’s upbringing. According to today’s NY Times, in an effort to help their adult children balance careers and parenthood, many more grandparents, of all racial and economic backgrounds, are becoming more involved in their grandchildren’s day to day care. Some have sold their homes and moved closer to their grandchildren, while others commute long distances to provide much needed child care. Other grandparents are taking time off from their own careers or retiring early so they can play a greater role in their grandchildren’s lives. Although most of these grandparents’ level of involvement in their grandchildren’s upbringing is less than that of the parents,’ they are clearly playing much more than a companionate role.
What happens in the small number, but unfortunately not rare, cases where the adult child and the grandparents have a disagreement (usually about something completely unrelated to the child) and the parent terminates the grandparents’ access to the child? In many cases since Troxel, courts have denied grandparents visitation even when they had lived with the child for a significant period of time and it was clearly in the child’s best interests to visit with them. Some courts have held that in order to rebut the parental presumption, the grandparents must show not only that the parent’s denial of visitation was unreasonable, but that the parent is unfit. This is a virtually unsurmountable standard absent evidence of child abuse or neglect. Other courts have required clear and convincing evidence that the child will suffer substantial harm absent visitation with the grandparent. Evidence that visitation is in the child's best interests is not sufficient to rebut the presumption that the parents’ decision to deny visitation was made with the child’s best interests in mind. Only after the grandparent rebuts the parental presumption will the court consider evidence that visitation is in the child's best interests.
Grandparent visitation suits are already quite common. As more and more grandparents play a greater role in their children’s day to day upbringing, it is possible that we will see even more visitation disputes in our courts. Grandparents who have played caregiving roles are unlikely to simply walk away when their children terminate all contact. Given this change in grandparents’ roles, has the time comes to rethink Troxel and its progeny?
Posted by Solangel Maldonado at May 10, 2007 07:13 PM
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Comments
Assuming we did revisit and modify current law, how long would it be before parents started having grandparents sign away their right to contest visitation or custody in the event of a misunderstanding or disagreement? And would such an agreement be enforceable if the child's best interests are to continue visitation?
Should a grandparent's visitation be any different than a nanny who raised the child for 10 years? If yes, why? If noT, should we then allow a nanny or caretaker the same visitation rights?
Though I can't articulate exactly why, it seems you should need something more than a preponderance of the evidence that grandparent's visitation is in the best interests of the child before you have the state override the parent's decision. Maybe clear and convincing, or even more.
Posted by: Adam at May 10, 2007 11:19 PM
Assuming we did revisit and modify current law, how long would it be before parents started having grandparents sign away their right to contest visitation or custody in the event of a misunderstanding or disagreement? And would such an agreement be enforceable if the child's best interests are to continue visitation?
Should a grandparent's visitation be any different than a nanny who raised the child for 10 years? If yes, why? If noT, should we then allow a nanny or caretaker the same visitation rights?
Though I can't articulate exactly why, it seems you should need something more than a preponderance of the evidence that grandparent's visitation is in the best interests of the child before you have the state override the parent's decision. Maybe clear and convincing, or even more.
Posted by: Adam at May 10, 2007 11:20 PM
From a more experiential point of view.
In my state, foster parents have no special rights to help determine a foster child's long term conditions, unless the child has lived with them for over 1 year. At that point, their input is to be considered about equally as that of a birth parent, social worker, therapist, or guardian ad litum.
Now in many cases children spend less time with a grandparent than with a parent, but there should be some tipping point where their input has to be given weight with regards to the child (maybe not equal, but some significance). Having seen and helped with the emotional issues children undergo when they lose contact with their birth family, a decision by a parent to deprive a child of contact with grandparents can be considered to be not in the best interest of the child.
Posted by: Fraud Guy at May 11, 2007 09:54 AM
I have given CLE classes on this. I am a parent in a traditional marriage-an intact family, who has sued along with my husband of many years for grnadparent visitation by my mother.
My husband and I won and managed, therefore, to safeguard our young children. $100,000.00 and years of torment and court appearances to safeguard our children. It was worth it but why why why do these statutes exist that allow people to sue fit parents?
The line must be drawn.
Posted by: Maggie at May 26, 2007 10:02 PM
I have given CLE classes on this. I am a parent in a traditional marriage-an intact family, who has sued along with my husband of many years for grnadparent visitation by my mother.
My husband and I won and managed, therefore, to safeguard our young children. $100,000.00 and years of torment and court appearances to safeguard our children. It was worth it but why why why do these statutes exist that allow people to sue fit parents?
The line must be drawn.
Posted by: Maggie at May 26, 2007 10:02 PM
I was sued shortly after my husband died. I am a fit, available, involved parent and I have always taken excellent care of my child from day 1. This person had little to no contact with my child and certainly no care-giving role whatsoever. Prior to the lawsuit, I had allowed supervised contact as I decided that would be most beneficial to my child. Yet the petitioner was granted unsupervised visits against MY better judgement, based on nothing. This is called state totalitarianism or "nanny government". The State allows a nonparent with the State's help to determine what constitutes a child's best interest, while treating the fit, available custodial parent as a "bad" parent or worse, excluding the fit parent altogether from using their own best judgment concerning who can influence our children. These laws simply ignore the fact that nonparents who sue fit parents have an ax to grind with the parent, and the money to do it. These laws are vindictive in nature, against the custodial parents, as the parent has broken no laws. Had these nonparents been respectful and truly supportive, they would have no need to sue. These visitationlaws allow the nonparent to use the parent's child as a pawn to seek revenge on the parent. At common law, nonparents have no rights whatsoever to other people's children, as it should be. Particularly when parents are fit, available, have always had custody and the children are thriving under their parents care. The bar needs to be set very high, these litigating nonparents should have to prove that the child is suffering actual significant harm as a result of no contact, before the State can use its police powers to interfere and force visits.
The parent-child relationship is the most important relationship in a child's life. Good parents protect their children's best interests. These visitation laws sabotage that relationship and allow nonparents to undermine parental authority and teach children insecurity with the parents they need to trust and depend on. Allowing the state to interfere with fit, available parental decision-making is anti-parent, anti-family. We are in serious danger as a society when the States have this ability to micro-manage our families, for no other reason than it thinks its decision is better than a fit parents. The states have just expotentially expanded the boundaries of the parens patriea approach to families. Indeed, this is the same path Hitler took in his liberal application of the State police powers to commit genocide. Make no mistake, we are on this same path. The state wants to take all decision-making power away from parents.
Parents have the duty and the right to encourage only healthy relationships and to set boundaries for our children so they learn how to choose positive relationships and to secure their own personal safety. The States and courts are on a collision course with the US Constitution and our basic rights as guaranteed by the Constitution are in serious jeopardy. As Americans, we need to get back to the Constitutional basics of freedom, liberty, and self-determination. The Constitution was designed to guarantee our rights and to protect us from the tryanny of all-powerful government. Parents, don't abdicate your role as decision-maker for YOUR children. As long as children have at least one fit, available parent, the state needs to trust the parent, support the parent-child relationship, and adhere to traditional limitations of state interference into the privacy of family life. Without this, we are reduced to a distrustful, adverserial police state where all parents are "bad" for their own children and the State runs our families while parents are reduced to "birthing entities" and financial obligors, nothing more.
Is this the type of society we want to live in?
The best chance grandparents have of having a good relationship with the parent's children is to have a good relationship with the children's parents. That, ultimately is in the BEST interest of children.
Posted by: Good Parent at September 4, 2007 02:34 PM
Be that as it may, not all grandparents are created equal. While noone can take away another's right to have their "day" in court, why does being a grandparent entitle one to sue for unsupervised access to someone else's children? That makes no sense. Has some law been broken, some crime committed? Or is this just a difference of opinion? Why are these grandparents trying so hard to separate the children from their good, loving parents? Shouldn't that be a big red flag to the court? Is it really in a child's best interest to have a court cause emotional harm on the child, cause financial ruin of the family, for the sake of regular playdates with a nonparent? It sounds like these laws allow the courts to re-draw the boundaries of parenting and of using one's own judgment, unrelated to child endangerment.
Wise, supportive grandparents encourage parents to take care of their own children, encourage the bond between the children and the parents, are glad to help out, stepping in only when the children are in actual danger, which is quite rare. If grandparents do not want to be baby-sitters or quasi-parents, they need to be supportive, but clear as to when the parents can impose on them.
It is usually when the grandparents over-step their bounds and undermine the parents or engage in hateful behavior, like bad-mouthing parents or child abuse, that the parents rightfully shield their children from these harmful people. The parent-child relationship must take precedence.
Read the Troxel opinion. It does specify certain cardinal principles that are well-established. It emphasizes the paramount and fundamental nature of the parent-child relationship and of parental decision-making. It makes clear the limit of state and court interference on decisions by fit, available parents. It DOES NOT say that another persons perception about what a child's interest in a secondary relationship may be must be placed above the parent's decision about the relationship. Nor does it say that a court can overrule a parent simply because the magistrate/judge feels a "better" decision can be made. Afterall, the mother in that case was a fit/single/widowed/remarried parent, fully capable of determining what was best for her children.
The Troxel decision is so clearly pro-parent, only the unwise could miss it.
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Posted by: Joe Goldberg at February 18, 2008 02:18 AM
THE COMMENT LEFT BY JOE GOLDBERG IS CORRECT.FALSE ABUSE REPORTS AGAINST THE NON-CUSTODIAL PARENT ARE HAPPENING MORE AND MORE. I'M A GRANDMOTHER OF A GRANDSON WHO WAS BORN WITH SEVERAL HEART DEFECTS AT BIRTH. I WAS HIS BABYSITTER FOR THE FIRST FEW YEARS OF HIS LIFE UNTIL THE PARENTS SEPERATED AND MY DAUGHTER BECAME INVOLVED WITH AN ABUSIVE MAN. I ASKED MY DAUGHTER ABOUT DOMESTIC VIOLENCE HAPPENING IN FRONT OF MY GRANDSON.(HE TOLD ME) SHE CUT OFF ANY CONTACT I HAD WITH MY GRANDSON.I FILED FOR GRANDPARENTS VISITATIONS. FALSE ACCUSATIONS OF ABUSE WERE MADE BY MY DAUGHTER. NO ONE WAS CHARGED BUT THIS IS WHAT HER REASON WAS FOR DENYING ME VISITATION. SINCE I WAS DENIED MY DAUGHTER HAS HAD 3 PROTECTION ORDERS AND SEVERAL CASES OF DOMESTIC VIOLENCE FILED AGAINST THE MAN AND CONTINUED TO STAY WITH HIM.THIS WAS NOT IN THE BEST INTEREST OF MY GRANDSON. HOWEVER, I HAD NO RIGHTS BECAUSE I'M NOT HIS PARENT. I LOVE MY GRANDSON. I'VE BEEN THERE EVERY TIME FOR HIS HEART SURGERY. I'VE FLOWN TO A COUPLE OF OTHER STATES AT THE REQUEST OF BOTH PARENTS TELLING ME THAT I NEEDED TO BE THERE FOR MY GRANDSON BECAUSE OF THE BOND WE HAVE. NOW I'M NOT ALLOWED TO SEE HIM. I UNDERSTAND THERE ARE GOOD PARENTS IN THIS WORLD BUT THE FACT IS THERE ARE ALSO BAD PARENTS THAT USE THEIR CHILDREN A PAWN.
Posted by: KELLY at July 28, 2008 10:57 PM
