The court case that is most relevant to grandparents’ visitation rights is Troxel v. Granville, decided in 2000 by the U.S. Supreme Court. This case dealt a serious blow to grandparents’ rights.The heart of the decision is a statement that “fit parents” are presumed to act in their children’s best interests. This is presumed to be true even when parents cut off contact with grandparents and other family members.
Troxel v. Granville offers no clearly defined standard for granting or disallowing grandparent visitation. Also, it was far from a unanimous decision. Six opinions were offered in the case: three majority decisions and three dissenting decisions. In short, it did little to clarify the murky waters of visitation rights. In spite of these shortcomings, it significantly reduced grandparents' chances of winning visitation with grandchildren.
The case that ended up before the Supreme Court seemed simple. Tommie Granville and Brad Troxel were the unmarried parents of two daughters. When their relationship ended, Troxel, the father, often took the girls to his parents’ home for visits. After Troxel committed suicide two years later, his parents continued to see the girls. After Tommie Granville remarried and her husband adopted the girls, she tried to limit the visits of the Troxel grandparents.
The Troxels filed suit based on the Washington State statute, which didn’t actually mention grandparents but granted “third parties” the right to file for visitation.
The case made its way through the court system, arriving at the Washington State Supreme Court. That court ruled that the Washington statute should have required a demonstration of harm or potential harm to the child if the visitation was denied.
The court ruled the statute invalid on federal constitutional grounds. The U. S. Supreme Court then agreed to hear the case.
U.S. Supreme Court Decision
The Supreme Court affirmed the decision of the Supreme Court of Washington, stating that “fit parents” are presumed to act in the best interest of the child. The state should not, therefore, “inject itself into the private realm of the family” to question parental decisions. Grandparents can rebut or disprove the parents' decision, but the burden of proof is on the grandparents, not the parents.
The court also found fault with the Washington statute, characterizing it as “breathtakingly broad.”
The decision in Troxel v. Granville is what is known as a plurality decision, meaning that a majority of the justices did not agree. In this case, Justices O’Connor, Rehnquist, Ginsburg and Breyer agreed on a decision. Justices Souter and Thomas filed concurring opinions but had some differences with the decision of the other four. Justices Stevens, Scalia and Kennedy filed dissenting opinions.
Impact of the Decision
Many states have rewritten or amended their statutes in the wake of Troxel v. Granville. These amended statutes have strengthened parental rights so that the statutes can pass federal constitutionality tests.
This strengthening of statutes can take several different forms. In some states, suits for visitation may be filed only if there has been a divorce, death or other disruptive circumstance in the family. An intact family, commonly meaning a married couple, is usually allocated the right to make decisions about grandparent visitation. For an example of a post-Troxel case involving the intact family issue, see Iowa's Santi v. Santi.
Apart from the intact family issue, grandparents suing for visitation must usually meet one of two standards. The easier standard requires grandparents to provide evidence, usually described as “clear and convincing” evidence, that visitation is in the best interests of the child.
In states with more stringent statutes, the grandparents may be required to show that the child will suffer actual harm if visitation is not allowed.
In the Massachusetts case of Sher v. Desmond, for example, a grandmother's watchful eye was considered important to her grandchild's well-being. In this case, the child's mother disappeared after reportedly being the victim of domestic abuse. The father retained custody of his son, but the mother's mother was granted visitation in order that she might keep an eye on the boy's home situation.
On the other hand, in the Texas case of In re: Ricky Derzapf, testimony showed that the children involved felt "lingering sadness" over the lack of contact with their grandparents. The sadness felt by the children was not considered serious enough to meet the harm standard.
Some states have retreated slightly from the harm standard. In the 2004 Kentucky case of Vibbert v. Vibbert, the Court of Appeals found that meeting the harm standard was not necessary. Instead the court advocated a return to the best interests of the child standard, as long as that was rigorously examined.
States are sometimes classified as permissive or restrictive according to whether they adhere to the harm standard or require a laxer best interest of the child standard. However, several other factors can enter into this classification.
Future of Visitation Rights
It is possible that the U.S. Supreme Court will revisit this issue in the future, but in 2012 the court declined to hear a controversial Alabama case, E.R.G. v. E.H.G. Alabama was joined in this petition by the states of Ohio, Hawaii, Louisiana, Michigan and Washington, but the Supreme Court still declined, quashing hopes for any judicial enlightenment in the near future. It is certain that current state statutes will continue to be revised. It is also certain that statutes will be impacted by case law as they are tested in court.
Advice for Grandparents
Given this uncertain state of affairs, grandparents should try to resolve conflicts before suing for visitation. Another option is to consider mediation. In mediation, a third party is charged with helping the differing parties reach a legally binding agreement.
In some states, a suit for visitation cannot be filed unless the parties have been through mediation.
Read the full text of Troxel v. Granville.