Grandparent visitation

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Grandparent visitation is a legal right that grandparents in some jurisdictions may have to have court-ordered contact (or visitation) with their grandchildren. In no case is contact between grandparents and children considered an inalienable right.

Contents

United States

As of 2013, all US states have statutes that permit non-parents to ask a court to grant them the legal right to maintain ongoing contact with a child. [1] In many states, these statutes explicitly name grandparents and great-grandparents as potentially eligible people. [1] These requests must be justifiable as being in the best interests of the child, and they may only apply under certain circumstances, such as after one parent dies or loses custody. [1]

The federal Supreme Court decision Troxel v. Granville in 2000 places limits on when states can grant visitation rights to third parties, including grandparents.

State laws vary greatly, and no state guarantees that the grandparents will be able to obtain a court order granting them visitation, unless it is in the best interests of the child. The rationale behind these laws is that sometimes, especially with the death of a parent or in a family that has undergone divorce, the children may not have the opportunity to have contact with the non-custodial parent and his relatives, thus fostering continued familial bonds. [1] Those opposing this view say that court-ordered grandparent visitation infringes upon the fundamental right of fit parents to raise their child in the manner that they see fit (including the right to decide with whom the child will associate). Grandparent's rights to see their grandchildren, following the death of a parent, the divorce of the parents, the child being born out of wedlock, or if the child does not reside in the home of a parent, was first created by Bloomfield Hills, Michigan Family Law Attorney, Richard S. Victor, who later went on to form the national nonprofit Grandparents Rights Organization (GRO) in the early 1980s and which still exists today.[ citation needed ]

Grandparents seeking visitation rights must obtain their own legal advice or file the request themselves. They will not be awarded an attorney provided at taxpayer expense.

Organizations, like the Grandparents Rights Organization, are working on some changes in the law to provide grandparents automatic visitation upon the death of a parent (their child) to allow for continued family interaction with that part of their family.[ citation needed ]

Impact of Troxel v. Granville

In the case of Troxel v. Granville , the United States Supreme Court stated that "the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court." [2] The Supreme Court also said that this fundamental right is implicated in grandparent visitation cases, when visitation orders are imposed over parental objection.

The court held that grandparent visitation laws were not unconstitutional on their face, as requested in the case. The Supreme Court declared that a parent's fundamental right to the "care, custody and control of their children" was "at issue in this case." They held that in order for state laws to be constitutional, three things need to be in the law:

  1. If there is a claim or action filed, it is the grandparent that has the burden of proof;
  2. The court should give "deference" to a "fit" parent's decision; and
  3. The grandparent may still proceed with their request for grandparent visitation and overcome being denied contact; and each state should have a set of factors for the court to evaluate when deciding to either grant or deny a grandparent's request, over a parent's objections.

The Supreme Court ultimately ruled that the statute impermissibly interfered with a parents fundamental right to raise their child as they saw fit, in that the statute was “breathtakingly over broad” and allowed anyone, biologically related or not, to, at any time, petition the court for an order granting them contact with a child.

State courts considering non-parent visitation petitions must apply "a presumption that fit parents act in the best interests of their children.". [3] Troxel requires that state courts must give "deference" or some special weight to a fit parent's decision to deny non-parent visitation. "Choices [parents make] about the upbringing of children... are among constitutional rights, but were not an absolute right... sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect." [4] This principle must inform the understanding of the "special weight" that Troxel requires courts to give to parents' decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference. [5] The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will be overcome only by some compelling governmental interest and by overwhelmingly clear factual circumstances supporting that governmental interest.

Italy

Limited grandparent visitation rights exist in Italy. [6]

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References

  1. 1 2 3 4 Kagehiro, Dorothy K.; Laufer, William S. (2013-06-29). Handbook of Psychology and Law. Springer Science & Business Media. pp. 295–297. ISBN   978-1-4757-4038-7. Currently, however, all states have visitation statues providing grandparents with independent standing to petition for visitation rights, with most states specifically naming grandparents as recipients of this privilege.
  2. ↑ Troxel v. Granville, 530 U.S. 57, 65; 120 S Ct 2054, 2060 (2000).
  3. ↑ Troxel, 530 US at 69; 120 S Ct at 2061, 2062.
  4. ↑ M.L.B. v. S.L.J. , 519 U.S. 102, 116-117 (1996).
  5. ↑ See, for example, Comstock v. Group of Institutional Investors , 335 US 211, 230 (1948); Tibbs v. Florida , 457 US 31 (1982).
  6. ↑ Giuffrida, Angela (2023-02-01). "Court in Italy rules in favour of children who do not want to see grandparents". The Guardian. ISSN   0261-3077 . Retrieved 2023-02-15.
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