Grandparents in the 21st century are often amazed that their legal right to see their grandchildren is so poorly defined and so hard to enforce. But what seems like an inalienable right to modern grandparents was originally quite a revolutionary concept, as a short history of grandparents' rights will demonstrate.
The Emergence of Grandparents' Rights
In the early days of the American family, grandparents usually lived close to their large, extended families.
Certainly families had quarrels then as now, but they were unlikely to result in a segment of the family withdrawing from the group, as the lives of most family members were too intimately entwined. Divorce was rare, and family matters were usually settled within the family, without recourse to the legal system.
By the 1960's, however, the structure and function of the American family was vastly different. Young people were attending college and finding jobs far from the family farms of old. Family units were created and dissolved and reformulated, creating rafts of step relationships. Some individuals chose parenthood without matrimony.
In addition, generational changes were occurring. Older generations were living longer, staying healthier and having fewer grandchildren, which made them more likely to cling to the ones they had. Young people had adopted as their mantra, "Don't trust anyone over 30." Everyone was talking about the generation gap.
When the tenuous relationship between older and younger dissolved, grandparents discovered that they still wanted to see their grandchildren. They began to work to get their rights legally recognized. And they proved to be a formidable political force. They had funds; they voted; and they had learned about political activism.
Lawmakers were hesitant to oppose "Gray Power."
Still, the very idea of grandparents' rights was revolutionary, as American law grants parents the "care, custody and control" of their children. Giving grandparents visitation rights when the parents have denied them would be a definite modification of those parental rights. Of course, other laws, such as those providing for compulsory education, had already established the principle that the best interests of children and society can outrank parental rights. Grandparent visitation laws were passed because of a general perception that, in some cases at least, visitation with grandparents would be in the best interests of children.
Early Grandparent Visitation Statutes
Family law is among the areas reserved to the states, so statutes had to be passed state by state. The first grandparent visitation laws were passed in the early 1960's. Approximately 30 years later, every state had a grandparent visitation statute.
As early as 1983, Congress passed a resolution calling for uniformity in grandparent visitation statutes: "[A] uniform State act should be developed and adopted which provides grandparents with adequate rights to petition State courts for privileges to visit their grandchildren following the dissolution (because of divorce, separation, or death) of the marriage of such grandchildren's parents, and for other purposes." However, this call for a uniform act was never heeded.
During the 30 years during which states were developing their grandparent visitation statutes, two more developments increased the need for such legal remedies. First, substance use grew exponentially, rendering many parent users unable to take care of their children. Second, the economy proved volatile, causing young people to struggle to stay afloat financially. Both circumstances led to many grandparents being involved in the raising of grandchildren. When the parents reclaimed their children and sometimes cut off contact with grandparents, the courts were often receptive to grandparents' pleas for visitation.
Meanwhile, the laws that were "on the books" were being modified by case law — court decisions that serve as precedents for cases to follow.
The Strange Case of Troxel v. Granville
Oddly enough, the next great event in the history of grandparents' rights was dealt by a 2000 Supreme Court made up of justices who were deeply divided on the issue.
The law in question was a Washington State statute about "third-party visitation." Grandparents were not even specifically mentioned in the law. Yet the judicial response in that case impacted grandparent visitation law in ways that are still being felt more than 10 years later.
In the Washington State case, Troxel v. Granville, a couple had conceived and raised two daughters without benefit of matrimony. The father often took the girls to see his parents. When he committed suicide, the girls continued to see their paternal grandparents until their mother remarried and tried to reduce contact with the girls' paternal side. The grandparents sued for visitation, and the case wound its way through the court system, ending up before the U.S. Supreme Court in 2000.
The Supreme Court ruled against the grandparents, finding that the statute in question was "breathtakingly broad" and that "fit parents" are presumed to act in the best interests of their children. It's worth noting, however, that the case spawned six opinions: three majority decisions and three dissenting. Clearly there was little agreement among the justices, but the majority decision — against the grandparents — was the one that counted.
The decision had a ripple effect. All the legislative victories won by grandparent advocates were placed in jeopardy. The ruling required that all states assess their statutes with a critical eye to determine if they met the higher bar imposed by Troxel v. Granville.
Response to Troxel
After the Troxel ruling, many states had the constitutionality of their statutes challenged in court. Some states preemptively changed their laws. In other states, justices studied the Troxel ruling and decided that their state statutes could pass a constitutionality test.
The main sticking point in post-Troxel grandparent visitation law is the question of best interest. Grandparents striving to win visitation with a grandchild must prove that such contact is in the best interest of the child, but different states have set different thresholds for proof.
In some states, considered restrictive, the grandparents must show that a child will actually suffer harm if contact is denied. This is called the harm standard.
In other states, generally considered permissive, the grandparents need only show that the children will benefit from contact with grandparents.
More Post-Troxel Issues
Another issue that has arisen post-Troxel is the issue of intact families. Most states allow suits for grandparent visitation only if the family unit of the child in question has been disrupted by circumstances such as the death of a parent or divorce. Some states add other situations, such as a parent's incarceration or abandonment by a parent. A few states do allow grandparents to file for visitation even if the child's parents are still married, but these states may add other requirements that complicate suits. Learn more about suing for visitation with children in intact families.
In recent years, a legal faction has claimed that differentiating between children in intact families and non-intact families amounts to a violation of the Fourteenth Amendment's provision of equal protection under the law. This argument goes thus: If parents are granted the fundamental right to the care, custody and control of their children, then all parents should be equally protected from infringement of that right, whether married, divorced, widowed or separated.
This movement has failed to gain much traction, possibly because courts have been too focused on the impact of Troxel. Once the post-Troxel issues are sorted out, courts may begin to take a second look at the issue of intact families. Certainly society's definition of what constitutes a family has undergone considerable change since most grandparent visitation laws were passed in the 1960's-1980's. It will not be surprising if the sanctity of the intact family is eventually abrogated.
Looking to the Future
Besides a closer examination of intact families, grandparent visitation law may undergo other changes. Some hope that rigorous standards in some states will be eased as post-Troxel panic abates. This already has occurred in Kentucky as a result of the case of Vibbert v. Vibbert, one of several important post-Troxel cases.
Another Supreme Court ruling is always possible. In 2012 five other states joined with the state of Alabama in requesting a hearing in the case of E.R.G. v. E.H.G. The hope was a Supreme Court decision that would cast light on exactly what standards should be used to determine best interest of the child. That hope came to nil when the Supreme Court declined the case.
Grandparents' rights in the United States may have a very short history, but that history is continuing to be written.