Grandparents who are considering suing for visitation with grandchildren will become very familiar with certain legal. terms. One of them is the "best interests of the child," invoked in grandparent visitation laws in every state of the Union. Grandparents who wish to win visitation must prove that grandparent-grandchild contact is in the child's best interests. In some states, however, grandparents will find themselves faced with a different standard, and one that can be difficult to meet.
It's called the "harm standard."
History of the Harm Standard
States began enacting grandparent visitation laws in the 1960's. This process continued for several decades without significant opposition. Then, in 2000, the United States Supreme Court handed down the landmark decision of Troxel v. Granville. Everything changed. The decision basically reaffirmed the right of "fit" parents to make decisions about their children. Parents could even cut children off from their grandparents.
In the wake of Troxel v. Granville, some states toughened their grandparent visitation statutes so that they could meet a constitutional challenge. In addition, judges began to take a harder line. Some states decided that some "compelling" circumstance had to be present before the court could override the decision of the parents to cut off contact with grandparents. Some states adopted the harm standard — the requirement that grandparents demonstrate that a denial of visitation would cause harm to the child.
These were mostly the states classified as more restrictive in regard to grandparents' rights.
How to Meet the Harm Standard
Courts applying the harm standard are not interested in generalities. They don't care about the vital roles played by grandparents. They will want to know what specific undesirable results might occur if a particular child is denied contact with a particular grandparent.
Usually this involves a strong existing relationship that would distress a grandchild if it were abruptly discontinued. Sometimes, however, even this is not enough to convince the court.
Following the harm standard poses significant problems for grandparents who were cut off from grandchildren at an early age. It is difficult to argue that a grandchild will suffer from a lack of contact with a grandparent that the child never really knew, or knew only at a very young age.
In one particular circumstance, however, a grandparent may win visitation even though there is little existing grandparent-grandchild relationship. This is when the parent who is the grandparent's child is deceased or otherwise absent. The court may incline toward awarding visitation to the family of the missing parent, reasoning that it can be harmful for a child to lose all connection with one side of his or her family.
Specific States and the Harm Standard
Several states specifically mention the harm standard (although often in slightly different words) in their state statutes. See these examples:
- Illinois law requires "an unreasonable denial of visitation by a parent" and specifies that "the denial has caused the child undue mental, physical, or emotional harm."
- Oklahoma law requires that the grandparent rebut "by clear and convincing evidence, the presumption that the fit parent is acting in the best interests of the child by showing that the child would suffer harm or potential harm without the granting of visitation rights to the grandparent of the child."
- Tennessee law uses a variety of phrases to describe how grandparents must meet the harm standard, including "irreparable harm," "substantial harm" and "severe emotional harm."
- Texas law requires that a grandparent prove that denial of visitation would "significantly impair the child's physical health or emotional well-being."
In other states, supreme courts and appellate courts have invoked the harm standard in their decisions, giving this standard the force of case law. These states include Arkansas, Connecticut, Georgia, Hawaii, Iowa, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, Vermont and Washington.
And the language used in these decisions leaves little doubt of the court's intent. The decisions use terminology such as "actual harm," "significant harm" and "real and substantial emotional harm," demonstrating a high threshold for proof of harm.
What the Future May Hold
Some observers hope that a future Supreme Court decision will clarify grandparents' rights. Others pin their hopes on a uniform law about grandparent visitation. Until one of those two things occurs, however, grandparents seeking visitation rights will have to struggle with difficult and sometimes ambiguous concepts such as the harm standard.