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Family Law Newsletter

Constitutionality of Grandparent Visitation Statutes

All 50 states have laws authorizing certain nonparent parties, typically grandparents, to seek child visitation rights. These statutes are controversial, and parents often argue that the laws interfere with their fundamental constitutional right to rear their children, which includes the right to determine who may educate and socialize with their children. However, as parens patriae, states are required to protect all citizens who are unable to protect themselves. Accordingly, state legislatures and courts are vested with the power to consider the best interest of their child citizens in enacting and enforcing grandparent visitation laws, provided certain guidelines are followed.

Troxel v. Granville

In 2000, the U.S. Supreme Court issued a severely fractured opinion on the constitutionality of a Washington visitation statute. The law permitted “any person [to] petition…for visitation rights at any time” and authorized courts to grant visitation whenever it would “serve the best interest of the child.” Under the statute, the Troxels were seeking visitation rights of their granddaughters from their mother, after the Troxel’s son (the children’s father) committed suicide. The mother sought to limit the visitation between the Troxels and their granddaughters. The statute, however, was ruled as being “breathtakingly broad.” The Court held that, as applied, the law unconstitutionally infringed on the mother’s fundamental right to make child care, custody and control decisions.

The Troxel Court found that the excessive judicial discretion authorized by the statute was problematic. The Court seemed to suggest the need for state grandparent visitation laws to reflect a child’s needs while simultaneously affording more deference to the parents’ rearing decisions. Thus, Troxel left open the probability that grandparent visitation statutes can be constitutional even with the existence of fundamental protected rights of parents.

Aftermath of Troxel – Effect on Grandparent Visitation Rights

Immediately after Troxel, several lawsuits forced other courts to review their own state visitation laws. Some states’ courts, such as New Jersey, held their statutes to be facially valid, but unconstitutional as applied to the facts of the particular case. Other states, such as Florida and Illinois, held their statutes to be unconstitutional on their face. Still other states, such as Texas, distinguished Troxel, holding their own statutes to be constitutional.

Restrictive Visitation Statutes

Approximately 15 states have “restrictive” nonparental visitation laws which allow only the grandparents to petition for a visitation order. These laws also generally apply only in cases where parents are getting divorced, where one or both parents have died, or where the child was born out of wedlock.

Permissive Visitation Statutes

Most states have more “permissive” visitation laws which allow grandparents to seek visitation in any case where it would be in the best interest of the child. These states view grandparent visitation rights as only a small infringement on parents’ rights.

Some states have even more permissive visitation laws which authorize courts to consider visitation requests from other third parties such as stepparents or other family relatives. States with such highly permissive visitation laws may also permit grandparents to petition for visitation even where the family is still intact (i.e., no divorce or death has occurred).

Future of Grandparent Visitation Laws

Both the language in Troxel and the overall trend appear to allow that grandparent visitation statutes will be constitutional, provided that they direct courts to “presume” that a fit parent’s decisions regarding visitation are within the child’s best interest. In other words, at least some special weight must be given to a parent’s decision to deny visitation to the grandparents.

California’s statute provides an example of a constitutional permissive visitation law. The California Supreme Court upheld the law which specifically codifies the “fit parent presumption” recommended by Troxel. The court awarded visitation rights to the grandparents of a child whose parents were divorced. This decision is consistent with the trend upholding those statutes which allow grandparents to petition for visitation when the family is no longer together, focusing on the child’s best interest. However, it still appears to be more difficult for grandparents to seek visitation when the family unit is intact.

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