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October 2001
Grandparent
Visitation Post-Troxel
Laura W. Morgan
I. Grandparent Visitation Law Prior to Troxel
At common law, a relative of a child other than a mother
or father lacks any legal right to visit or communicate with
a child when a parent forbids such contact. This common-law
rule is grounded in the recognition that parents have a constitutionally
protected right to determine their child’s companionship,
care, custody, and management. See generally Samuel
V. Schoonmaker III, William H. Narwold, Roberta Hatch, Karen
Goldthwaite, Constitutional Issues Raised by Third-Party
Access to Children, 25 Fam. L.Q. 95 (Spring 1991). This
constitutional right is derived from the fifth and fourteenth
amendments of the United States Constitution, which proscribe
governmental interference with individual “liberty.”
E.g., Santosky v. Kramer, 455 U.S. 745 (1982);
Lassiter v. Department of Social Services of Durham County,
452 U.S. 18 (1981).
By no means, however, is this right absolute. The state,
in its role as parens patriae, is vested
with the power to consider the well-being of its children/citizens.
The state may therefore, in considering the best interests
of the child, deem that certain kinds of visitation for a
child are in the child’s best interests. Under this power
to grant visitation only where such visitation is in the best
interests of the child, beginning in the 1970s and continuing
into the 1980s, all states enacted statutes granting grandparents
some kind of visitation rights, deeming that this type of
visitation was in the child’s best interests. Ala. Code
30-3-4 (1989 & Supp. 1996); Alaska Stat. § 25.24.150
(1998); Ariz. Rev. Stat. Ann. § 25-409 (1998); Ark. Code
Ann. § 9-13-103 (1993); Cal. Fam. Code § 3100 (Supp.
1999); Colo. Rev. Stat. § 19-1-117 (1999); Conn. Gen.
Stat. Ann. § 46b-59 (1995); Del. Code Ann. tit. 10, §
1031 (Supp. 1998); Fla. Stat. Ann. § 752.01 (1997 &
Supp. 1999); Ga. Code Ann. § 19-7-3 (1998 & Supp.
1999); Haw. Rev. Stat. § 571-46 (1998); Idaho Code §
32-719 (1999); 750 Ill. Comp. Stat. Ann. 5/607 (1999); Ind.
Code Ann. § 31-17-5-1 (1997 & Supp. 1999); Iowa Code
Ann. § 598.35 (Supp. 1999); Kan. Stat. Ann. § 60-1616(b)
(1998); Ky. Rev. Stat. ann. § 405.021 (1997); La. Rev.
Stat. Ann. § 9:572 (1999); Me. Rev. Stat. Ann. tit. 19A,
§ 1803 (1999); Md. Fam. Law Code Ann. § 9-102 (1998);
Mass. Gen. Laws. Ann. ch. 119, § 39D (1993 & Supp.
1999); Mich. Comp. Laws Ann. § 722.27 (1993 & Supp.
1999); Minn. Stat. Ann. § 257.022 (1998 & Supp. 1999);
Miss. Code ann. § 93-16-1 (Supp. 1999); Mo. Ann. Stat.
452.402 (Supp. 1999); Mont. Code Ann. § 40-9-101 (1998);
Nev. Rev. stat. § 43-1802 (1995); Nev. Rev. Stat. Ann.
§ 125C:050 (1999); N.H. Rev. Stat. Ann. § 458:17-d
(1998); N.J. Stat. ann. § 9:2-7.1 (1998); N.M. Stat.
Ann. § 40-9-2 (1999); N.Y. Dom. Rel. Law § 240 (Supp.
1999); N.C. Gen. Stat. § 30-13.2 (1995); N.D. Cent. Code
§ 14-09-05.1 (1997); Ohio Rev. Code Ann. § 3109.051
(1998); Okla. Stat. Ann. tit. 10, § 5 (1998); Or. Rev.
Stat. § 109.119 (1998); Pa. Stat. Ann. tit. 23, §
5301 (1991); R.I. Gen. Laws. § 15-5-24.1 (1994); S.C.
Code Ann. § 20-7-420(33) (Supp. 1998); Tenn. Code Ann.
§ 36-6-302(1998); Tex. Fam. Code Ann. § 153.433
(1999); Utah Code Ann. § 30-5-2 (1998); Vt. Stat. ann.
tit. 15, § 1011 (1998); Va. Code Ann. § 20-107.2
(Supp. 1999); Wash. Rev. Code Ann. § 26.09.240 (1998);
W. Va. Code Ann. § 48-2B-1 (1998); Wis. Stat. Ann. §
767.245 (1998); Wyo. Stat. § 20-2-113(c) (1998). See
Richard S. Victor, Michael A. Robbins, Scott Bassett, Statutory
Review of Third-Party Rights Regarding Custody, Visitation,
and Support, 25 Fam. L.Q. 19, 22-23 (Spring 1991); Edward
M. Burns, Grandparent Visitation Rights: Is It Time For
the Pendulum to Fall?, 25 Fam. L.Q. 59 (Spring 1991).
Although there was a proliferation of grandparent visitation
laws in the 1980s, the late 1990s saw the pendulum swing in
the other direction: numerous cases held that grandparent
and other third party visitation statutes were an unconstitutional
infringement upon the parents’ right to raise their children
as they saw fit. E.g., Castagno v. Wholean,
684 A.2d 1181 (Conn. 1996); Beagle v. Beagle, 678
So. 2d 1271 (Fla. 1996); Brooks v. Parkerson, 454
S.E.2d 769 (Ga. 1995); Olson v. Olson, 518 N.W.2d
65 (Minn. Ct. App. 1994); Hawk v. Hawk, 855 S.W.2d
573 (Tenn. 1993). See also In re Emanuel S. v.
Joseph E., 560 N.Y.S.2d 211 (App. Div. 1990) (grandparent
visitation is appropriate only in “extraordinary”
circumstances); Williams v. Williams, 485 S.E.2d
651, 652 (Va. Ct. App. 1997) (imposing preliminary requirement
showing of harm or threat of harm to child before visitation
may be granted). See generally Joan C. Bohl, Current
Trends in Grandparent Visitation Law, in 1998 Wiley Family
Law Update 1-28 (1998). These cases were predicated upon the
principle that when parents together were united in their
opposition to grandparent visitation, either in an intact
family or as divorced parents united in their resolve, or
when a surviving parent opposes grandparent visitation, a
mere finding that visitation is in the best interests of the
child is insufficient to overcome the constitutional rights
afforded the parent.
II. Troxel v. Granville
On June 5, 2000, the United States Supreme Court decided
the case of Troxel v. Granville, 530 U.S. 57, 120
S.Ct. 2054, 147 L.Ed.2d 49 (2000). See Sara Elizabeth
Culley, Troxel v. Granville and its Effect on the Future
of Grandparent Visitation Statutes, 27 J. Leg. 237 (2001);
Eric B. Martin, Grandma Got Run Over by the Supreme Court:
Suggestions for a Constitutional Nonparental Visitation Statute
After Troxel v. Granville, 76 Wash. L. Rev. 571 (2001);
Ronald W. Nelson, Troxel v. Granville: The Supreme Court
Wades into the Quagmire of Third-Party Visitation, 12
Divorce Litig. 101 (June 2000); Maegen E. Peek, Grandparent
Visitation Statutes: Do Legislatures Know the Way to Carry
the Sleigh Through the Wide and Drifting Law?, 53 Fla.
L. Rev. 321 (April 2001); Melodie Pillitire, Grandparent
Visitation Rights: The Pitfalls and the Promise, 2 Loy.
Pub. Int. Law 177 (2001); Richard S. Victor, Grandparent
Visitation Rights in the Twenty-First Century, 2000 Det.
C.L. Rev. 793 (2000); Bryan Thomas White, Muddling Through
the Murky Waters of Troxel: Will Grandparent Visitation
Statutes Sink or Swim? 39 Fam. Ct. Rev. 104 (2001).
In Troxel, no majority opinion emerged. The Court,
however, with six judges voting in plurality, struck down
the Washington state’s visitation statute as an unconstitutional
intrusion into a parent’s fundamental liberty interest
in rasing a child as the parent sees fit.
The problem addressed by the plurality opinion was that the
Washington statute was “breathtakingly broad,” granting
any third-party standing to assert visitation rights at any
time, with the decision on whether to grant that visitation
request in the hand of a judge whose only standard was the
best interests of the child. Four of the justices also found
the Washington statute unconstitutional as applied.
Although Troxel was not handed down by our United
States Supreme Court until last year, the fundamental rights
of parents, to the exclusion of others, have long been recognized
through the Due Process Clause of the Fourteenth Amendment.
Troxel more clearly and more definitively sets forth
those “liberty” interests afforded parents through
that Amendment. According to Troxel:
The Fourteenth Amendment provides that no State shall “deprive
any person of life, liberty, or property, without due process
of law.” We have long recognized that the Amendment’s
Due Process Clause, like its Fifth Amendment counterpart,
“guarantees more than fair process.” Washington
v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258 (1997).
The Clause also includes a substantive component that “provides
heightened protection against government interference with
certain fundamental rights and liberty interests.” Id.,
at 720, 117 S.Ct. 2258; see also Reno v. Flores,
507 U.S. 292, 301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).
Troxel v. Granville, 20 S.Ct. at 2059-2060.
As noted above, however, parental rights, however, are not
absolute. This same Supreme Court acknowledged the states’
strong parens patriae interest in the welfare of children,
and in the structure and stability of the family. Thus, the
states still retain “a wide range of power for limiting
parental freedom and authority in things affecting [a] child’s
welfare” and, also, in regard to “regulation in
the public interest.” Prince v. Massachusetts,
321 U.S. 158, 166 (1944). See also Wisconsin v. Yoder,
406 U.S. 205, 233-34 (1972) (recognizing that parent’s
power may be subject to limitation if court determines that
parental decision has potential for significant social burden).
By way of example, compulsory schooling for children under
sixteen, child labor laws, and mental health commitment procedures
for minors have been upheld as permissible state regulations
even when they conflict with parental decision-making. Wisconsin
v. Yoder, 406 U.S. 205, 228 (1972) (state’s power
to compel school attendance up to certain age, make reasonable
regulations for all schools, and prescribe curriculum for
public schools is undiminished by parents’ conflicting
preferences regarding child’s education); Prince
v. Massachusetts, 321 U.S. 158, 168-69 (1944) (requiring
all persons, including guardians, to comply with child labor
laws).
Thus, in Troxel, the problem was not that Washington
had a statute that allowed visitation in particular circumstances
under which it could be ordered for those in which it was
particularly appropriate. Rather, the problem in Troxel
was the breadth of the statute itself. Indeed, the Supreme
Court specifically left open the possibility and probability
that an appropriate statute granting third parties visitation
could withstand constitutional scrutiny.
Since Troxel, a number of state courts have examined
their grandparent visitation statutes in light of the constitutional
principles espoused by the Supreme Court. These decisions
may be categorized as (1) holding the statute facially unconstitutional
as applied; (2) holding the statute unconstitutional on its
face; and (3) holding the statute constitutional.
III. Statute Unconstitutional As Applied
In Dept. of Social and Rehabilitation Services v. Paillet,
16 P.3d 962, 971 (Kan. 2001), the Kansas Supreme Court held
that although Kansas’ nonparental visitation statute
was not facially unconstitutional, it was unconstitutional
as applied to the facts of the case. K.S.A. 38-129 provides
that “the district court may grant the grandparents of
an unmarried minor child reasonable visitation rights to the
child during the child’s minority upon a finding that
the visitation right would be in the child’s best interests
and when a substantial relationship between the child and
the grandparent has been established.” The trial court
interpreted and applied the statute to allow the court to
presume that grandparent visitation would be in the best interests
of the child, and it was up to the parents to show otherwise.
The Kansas Supreme Court held that because the trial court
had failed to apply the presumption that the mother acted
in her children’s best interest in deciding not to allow
visitation, the statute unconstitutionally infringed upon
the mother’s right to make decisions concerning the care,
custody, and control of his or her children. The Kansas Supreme
Court also concluded that remand would serve no purpose because
the grandparents failed to meet their burden of proof under
the statute. The court thus reversed the order for visitation.
In Wilde v. Wilde, 341 N.J. Super. 381, 775 A.2d
535 (App. Div. 2001), the court also held New Jersey’s
grandparent visitation statute, N.J.S.A. 9:2-7.1, unconstitutional
as applied. After detailing an extremely acrimonious dispute
between the mother and the paternal grandparents, the court
concluded grandparents cannot “demean a parent in the
manner that took place here and then insist the parent engage
in psychological therapy because without it visitation would
be inconsistent with the child’s best interest. For all
of the above reasons, we hold that the [the grandparent visitation
statute] is unconstitutional as applied to the circumstances
of this case.”
In Oliver v. Feldner, 2001 WL 111769 (Ohio Ct. App.
Jan. 25, 2001), the court expressly considered the constitutionality
of the statute in light of Troxel. In this case,
the mother argued that the trial court impermissibly presumed
that grandparent visitation was in the best interests of the
child, and that it impermissibly placed the burden upon her
to show that such visitation was not in the child’s best
interests. The court agreed:
It is clear from a thorough review of the record and testimony
on appeal that the trial court remained mindful of the fact
it was required to rule in this matter based upon the “best
interests of the child” standard. However, as in Troxel,
by failing to afford due deference to appellant’s decision
with regards to the issue of visitation between the minor
child and appellees, the trial court effectively placed the
burden of disproving that visitation would be in the minor
child’s best interest upon appellant. It is noted that
appellees do not now claim, nor have they claimed at any point
throughout the proceedings in this case, that appellant was
an unfit parent.
The court also found that the trial court simply failed to
make the requisite findings under R.C. 3109.051(D). That omission
was fatal:
Based upon the United States Supreme Court’s recent
mandate in Troxel, and upon the fact that the trial
court failed to set forth any findings of fact identifying
relevant factors in accordance with R.C. 3109.051(D) to support
its decision, it would appear that the trial court abused
its discretion in granting appellees visitation with the minor
child in question. While remaining mindful of the “best
interests of the child” standard, the trial court must
also afford some special weight to appellant’s decision
with regards to the issue of grandparents’ visitation
in an effort to protect appellant’s fundamental, constitutional
rights pursuant to the Fourteenth Amendment of the United
States Constitution. Troxel, supra.
Thus, the statute was unconstitutional as applied in the
case, and the cause was remanded to the trial court for findings
consistent with the opinion. See also Epps v.
Epps, 2001 WL 914132 (Ohio Ct. App. August 9, 2001) (R.C.
3109.051 is “significantly different” from the Washington
statute reviewed in Troxel and is not unconstitutional
under the analysis established in Troxel).
In Brice v. Brice, 133 Md. App. 302, 309, 754 A.2d
1132 (2000), Maryland’s highest court held that the application
of the Maryland Code, Family Law § 9-102 unconstitutionally
violated a mother’s due process rights. In that case,
Kayla Brice was born on January 8, 1997, the only child of
Lisa and James Brice. James died in an automobile accident
on October 2, 1997. Shortly after James’s death, Susan
Brice, James’s mother, was on psychiatric leave from
her employment and asked Lisa if she could provide daycare
for Kayla, which Lisa declined. On December 9, 1997, the Brices
filed a Complaint to Establish Grandparent Visitation Rights,
alleging that Lisa denied them visitation with Kayla since
James’s death. Lisa’s Answer to the Complaint denied
that she had refused the Brices visitation with Kayla, and
stated that she had continually encouraged reasonable and
appropriate visitation by the [Brices] with their granddaughter,
Kayla.
The Maryland court found the facts in the case “strikingly
similar” to those in Troxel. As in Troxel,
the Brices did not allege, and no court has found, that Lisa
was an unfit parent. In addition, as in Troxel, Lisa
did not oppose or deny visitation and conceded that it was
in Kayla’s best interest to have contact with the Brices.
Instead, Lisa merely wished to set visitation on her own terms,
without the interference of a judge under a “best interests
of the child” standard. And on that point, the court
agreed and held the Maryland third-party visitation statute
unconstitutional as applied.
Similarly, in Neal v. Lee, 14 P.3d 547 (Okla. 2000),
the Oklahoma Supreme Court held that in light of Troxel,
it was error for the trial court to grant grandparent visitation
over the objections of the children’s parents when there
was no showing of harm in the absence of visitation or that
the parents were unfit. The statute as applied, therefore,
violated the parents’ constitutional rights. Accord
R.S.C. v. J.B.C., 2001 WL 996065 (Ala. Civ. App.
August 31, 2001) (“Because we find § 30-3-4.1 unconstitutional
as applied in this case, we reverse the judgment of the trial
court.”); Butler v. Harris, 2001 WL 1113062
(Cal. Ct. App. Dist.4 September 24, 2001) (under Troxel,
court found section 3104 does not per se violate the Due Process
Clause of the Fourteenth Amendment; court further found that
in order for the statute to meet due process requirements
under the California Constitution, when a fit custodial parent
opposes visitation, the statute must be construed to require
grandparents to show by clear and convincing evidence that
the parent’s decision would be detrimental to the child);
Punsley v. Ho, 105 Cal. Rptr. 2d 139, 147, 87 Cal.
App. 4th 1099, 1110 (2001) (relying on Troxel, the
California Court of Appeal concluded that the trial court’s
application of California’s nonparental visitation statute
over mother’s objections violated mother’s fundamental
parental rights where the mother was fit and was willing to
voluntarily schedule visitation and the trial court applied
an erroneous presumption that visitation with the paternal
grandparents was in the child’s best interest); Harrington
v. Daum, 172 Or. App. 188, 18 P.3d 456 (2001) (third-party
visitation statute unconstitutional as applied to allow mother’s
former boyfriend visitation over objections of father after
mother died; statute, however, was not unconstitutional on
its face, because it does not permit any person to seek custody
or visitation; rather, it is limited to those persons who
have either a child-parent relationship or an ongoing personal
relationship with the child).
IV. Statute Unconstitutional On
Its Face
Recently, in Belair v. Drew, 776 So.2d 1105, 1107
(Fla. DCA 2001), Florida’s Fifth District Court of Appeal
briefly discussed Troxel and held that Florida’s
grandparent visitation statute, Fla. Stat. Ann. § 752.01(1)(b),
is facially unconstitutional under the privacy rights protected
by Florida’s Constitution. Given the Florida Supreme
Court’s ruling in Saul v. Brunetti, 753 So.
2d 26 (Fla. 2000), declaring unconstitutional § 752.01(1)(d)
concerning grandparent visitation where the minor child is
born out of wedlock, Von Eiff v. Azicri, 720 So.
2d 510 (Fla. 1998), declaring unconstitutional § 752.01(1)(a)
concerning grandparent visitation where one or both parents
are deceased, and Beagle v. Beagle, 678 So. 2d 1271
(Fla. 1996), declaring facially unconstitutional § 752.01(1)(e),
concerning grandparent visitation with minor child living
with both natural parents, the decision caused little surprise.
In J.S. v. D.W., 2001 WL 470254 (Ala. Civ. App.
May 4, 2001), the Alabama Court of Appeals held that its grandparent
visitation statute suffered the same infirmities as the statute
at issue in Troxel. The court held that the statute
was open-ended and allowed for grandparent visitation “at
the discretion of the court” and when “it is in
the best interest of the child.” Further, the court noted
that the statute does not require a showing that the child
will be harmed if grandparent visitation is not granted, the
statute provides no factors for the court to consider in its
analysis and the statute has no mandate that the court make
findings of fact. There is no presumption in favor of the
fit parents’ decision. The court concluded that the statute
infringed on the parents’ constitutional rights.
In Lulay v. Lulay, 739 N.E.2d 521, 534 (Ill. 2000),
the husband and wife were divorced in 1996, and both were
granted joint custody of their three minor children. On November
30, 1998, the father’s mother, Gail Lulay, filed a petition
seeking visitation with her grandchildren.
The court noted that the Illinois statute, unlike the Washington
statute, requires that the parents are not currently cohabiting
on a permanent basis. But the Illinois court did not find
this to be a saving grace. “The statute makes no exception
for a situation where a parent who opposes the visitation
is the child of the petitioning grandparent. Thus, the fact
that Michael Lulay, Gail’s son and the father of the
minor children, opposes the visitation does not alter Gail’s
ability under section 607(b)(1) to petition for visitation.
There is simply no language in the statute to support such
an interpretation.” Because statute fails to include
such language, the effect of the statute is to impermissibly
intrude upon a parent’s fundamental constitutional rights:
Because we have determined that the plain language of section
607(b)(1) permits a grandparent to file a petition for visitation
where the grandparent’s own child objects to the visitation,
we must now address whether section 607(b)(1), as so interpreted
and thus applied to this case, where both parents oppose visitation,
is constitutional. The answer is no. We hold that section
607(b)(1), as applied to this case, is an unconstitutional
infringement on Michael and Kiley Lulay’s fundamental
liberty interest in raising their children.
Cf. In re Marriage of Mehring, 2001 WL 911420 (Ill.
Ct. App. 08/13/2001) (different section of Illinois statute
not unconstitutional on its face).
Other states have followed suit and found the statute unconstitutional
on its face. In Santi v. Santi, 2001 WL 1035932 (Iowa
September 6, 2001), the father’s appeal concerned that
portion of Iowa’s grandparent visitation statute that
permits court-ordered visits regardless of whether circumstances
such as divorce, the death of a parent, or an adoption have
otherwise prompted court intervention in the family’s
affairs. See Iowa Code § 598.35(7) (1999). There, the
married parents in an intact nuclear family opposed, on constitutional
grounds, the paternal grandparents’ asserted right to
visit their three-year-old granddaughter over the parents’
objection. On de novo review, the court agreed that the statute
could not withstand strict scrutiny under article I, sections
8 and 9 of the Iowa Constitution, and the court affirmed the
trial court’s dismissal of the grandparents’ petition.
The New York courts appear split on the issue. Compare
Hertz v. Hertz, 186 Misc.2d 222, 226, 717 N.Y.S.2d
497, 500(2000) (New York’s grandparent visitation statute
violated parents’ substantive due process rights because
it allowed the trial judge to solely determine best interest
and accorded parents’ decision of children’s best
interest no presumption of validity) with Fitzpatrick
v. Young, 717 N.Y.S.2d 503, 186 Misc.2d 344, 349 (2000)
(discusses Troxel and notes that New York’s
statute is not as broad as the statute in Troxel;
denies motion to dismiss petition for grandparent visitation);
Smolen v. Smolen, 713 N.Y.S.2d 903, 185 Misc.2d 828,
835 (2000) (denying motion to dismiss petition for grandparent
visitation prior to evidentiary hearing).
V. Statute Constitutional
As note above, Troxel does not stand for the proposition
that all grandparent visitation statutes are unconstitutional
as applied or on their face. Other cases have reached the
conclusion that the grandparent visitation statute at issue
was constitutional on its face and as applied.
In Crafton v. Gibson, 752 N.E.2d 78 (Ind. Ct. App.
2001) the Indiana Court of Appeals held that its grandparent
visitation statute, which allows the court to grant grandparents
visitation rights only if such visitation is in the child’s
best interests and (1) the child’s parent is deceased;
(2) the marriage of the child’s parents has been dissolved
in Indiana; or (3) the child was born out of wedlock and there
has been a declaration of paternity. The court held that because
the statute was not as broad as the statute at issue in Troxel,
even under a strict scrutiny analysis, the statute passed
muster.
In State ex rel Brandon L. v. Moats, 2001 WL 755136
(W. Va. Sup. Ct. July 6, 2001), the court also found its grandparent
visitation statute to be constitutional. The court held that
the West Virginia statutory scheme stands in stark contrast
to the simplistic and broadly-worded two-sentence Washington
statute scrutinized in Troxel. The West Virginia
statute does not permit just “any person” to file
a petition under the act. Further, in addition to setting
forth the standard of best interests of the child, the act
requires a correspondent affirmative determination that such
visitation “would not substantially interfere with the
parent-child relationship.” These additional safeguards
protect the parents’ constitutional rights.
In Zeman v. Stanford, 789 So. 2d 798 (Miss. 2001),
the court held that while the statute in Troxel swept
too broadly by permitting any person to petition at any time
with the only requirement being that the court find that visitation
serves the best interest of the child, the Mississippi statute
did not suffer the same infirmity. Relying on its previous
case of Martin v. Coop, 693 So.2d 912 (Miss. 1997),
the court held that prior case law in Mississippi specifically
requires the Chancellor to consider certain factors before
awarding visitation in order to ensure that parents are not
deprived of their right to rear their children and determine
their children’s care, custody, and management. The limitations
imposed by the Martin court in its interpretation
of the grandparent visitation statute, § 93-16-3, clearly
result in the “narrower reading” that was lacking
in Troxel. Specifically, the factors set forth in
Martin specifically prohibit a Chancellor from ordering
visitation which would interfere with a parent’s right
to rear his or her children. The statute is thus constitutional.
In G.P.C. v. Cabral, 28 S.W.3d 357 (Mo. Ct. App.
E.D. 2000), the parents asserted that Missouri’s grandparent
visitation statute, Mo. Rev. Stat. § 452.402.2 (Cum.
Supp. 1998), infringed upon their fundamental liberty interests
as protected by the U.S. Constitution. (The parents also claimed
the trial court erred in failing to find that grandparents’
visitation would endanger child physically and emotionally,
and that the trial court abused its discretion by quashing
their notices of deposition of expert witnesses.) Here, the
court refused to find any constitutional infirmity.
In this case, the child was born November 5, 1997. Although
the grandparents had visits with the child during her first
six months of her life, the parents then denied the grandparents
contact with the child after the grandfather terminated the
father’s employment.
The court first noted that the wording of the Washington
statute was much different from that of the Missouri statute,
in that Missouri’s provides much greater protection of
parents’ decisions than does the Washington statute.
Under the Missouri statute, the denial must both be unreasonable
and have continued for at least ninety days before grandparents
may file an action seeking visitation. Under the Washington
statute, any person can petition for visitation rights at
any time. Consequently, Missouri’s statute does not create
the potential of subjecting parents’ every decision to
review at the behest of endless third parties, as in Troxel.
Similarly, in Rideout v. Riendeau, 761 A.2d 291
(Me. 2000), the court found that Maine’s Grandparent
Visitation Act did not violate the constitutional
rights of the parents of the children for whom their grandparents
care for a significant period of time. There, the grandparents
had served as primary care-givers for a large portion of the
children’s lives. The high court found the Washington
grandparent visitation statute, struck down in Troxel,
to be significantly broader than Maine’s statute: Maine’s
statute required a sufficient existing relationship between
the children and the grandparents, and Maine’s statute
required more than a mere best interests of the children showing.
In Jackson v. Tangreen, 18 P.3d 100 (Ariz. Ct. App.
2000), the Arizona Court of Appeals held that even in light
of Troxel, Arizona’s grandparent visitation
statute does not impermissibly violate the constitutional
rights of parents. Under the Arizona statute, the court cannot
grant visitation to any person only upon a showing of bests
interests of the child. Rather, the court must examine the
relationship between the child and the grandparents, and the
motivation of the requesting and resisting parties. “Because
Troxel does not stand for the proposition that nonparental
visitation statutes are per se unconstitutional,
and because A.R.S. section 25-409 satisfies the due process
concerns identified in Troxel, we reaffirm our holding
in Graville that A.R.S. section 25-409 is constitutional.”
Other state courts have also found their nonparental visitation
statutes constitutional. See Lilley v. Lilley,
2001 WL 359607*7 (Tex. App. April 12, 2001) (court distinguished
Troxel by noting that mother wanted to deny all visitation
and found that the Texas grandparent access statute is not
unconstitutional on its face or in the district court’s
application.); Galjour v. Harris, 2001 WL 293689*7
(La. Ct. App. March 28, 2001) (court distinguished Troxel
by finding that Louisiana’s statute is more narrowly
drawn, noting that “the statute’s grant of visitation
does not contemplate a significant intrusion upon the child’s
relationship with the other parent or interference with said
parent’s fundamental right to make child-rearing decisions.”).
VI. Conclusion
The cases have revealed a trend: in order for the grandparent
visitation statute to be considered constitutional, it must
not place upon the parents the burden of showing that grandparent
visitation is not in the best interests of the child. Rather,
the court must start with the presumption that the parents’
decision regarding visitation is in the child’s best
interests. It is then up to the grandparents to show that
a lack of visitation will not be in the child’s best
interests, or, even better, would result in harm to the child.
The courts also favor statutes that have some kind of prerequisite
to standing, such as the disruption of the nuclear family
or a demonstrated relationship between the child and the grandparent.
Finally, the courts favor extensive fact finding by the trial
court. Mere recitation of a “best interests” standard
will not do. We are truly now beyond the best interests of
the child.
Cases
United
States v. Gill, No. 00-10304 (9th
Circuit Court of Appeals, September 6, 2001): Under the Child
Support Recover Act, 18 U.S.C. § 228, a restitution order
may include accrued interest for unpaid child support even
if the underlying state court order did not mention interest,
so long as state law requires interest for unpaid support.
In
re Marriage of Bowen, No. GO24439 (California
Court of Appeals, Fourth District, August 29, 2001): The wife
appealed the share of the husband’s pension plan awarded
her in the divorce. The court held that the trial court improperly
diluted the wife’s share of the plan benefits by considering
the years the husband worked for the employer’s successor
by merger. Reversed.
In
re Marriage of Jones, No. H020669 (California
Court of Appeals, Sixth District, August 31, 2001): Husband
appealed the property division, claiming that the wife’s
post-termination salary, derived from a right contained in
her original employment contract during marriage and from
her service during her employment, was community property,
that her extra year of stock option vesting was derived from
salary earned during the marriage, and that a diamond ring
purchased during the marriage was community property. The
court affirmed as to the severance pay and stock options,
but reversed on the ring. The case is very interesting for
its discussion of severance pay.
Dickson
v. Dickson, No. 2001 ND 157 (North Dakota Supreme
Court, September 5, 2001): In this relocation case, the mother’s
request to move to California with her daughter was denied.
The Supreme Court reversed, holding that the trial court had
misapplied the law in concluding that mother had failed to
prove that the move would be economically advantageous, by
imposing unreasonable requirements on mother to seek employment
in North Dakota outside the area where she lived, and to prove
economic advantage with a comparative cost-of-living analysis.
Gaber
v. Gaber, No. 98-CV-0483-MA; A106861 (Oregon
Court of Appeals, September 26, 2001): Plaintiff wife appealed
from a summary judgment for defendant husband in an action
for battery and intentional infliction of emotional distress.
The decisive issue on appeal was whether plaintiff’s
claims are barred by a release provision contained in a stipulated
judgment that dissolved the parties’ marriage before
this action was commenced. The general release provided:
16. RELEASE Except as specifically provided herein, each
party releases the other from any and all claims or demands
of whatsoever nature which either party has or may claim
to have against the other arising out of or in any way connected
with their marriage to each other and its subsequent dissolution,
including but not limited to all claims for property, support,
suit money, attorney fees and costs. This agreement is intended
to be a full, binding and complete final marital settlement
between the parties except as specifically set forth herein,
subject only to approval of the Court.
The court held that the release was ambiguous and did not
necessarily bar the action for assault and battery. The court
remanded the case to the trial court to ascertain the intent
of the parties and construe the release accordingly.
Kripp
v. Kripp, No. 2001 Pa. Super. 276 (Pennsylvania
Superior Court, September 14, 2001): In the parties separation
agreement, the parties agreed that alimony would cease if
the wife cohabited. When the wife began cohabiting with another
woman, the husband stopped payment. The Superior Court reversed,
relying on prior case law the defined cohabitation as two
persons of the opposite living together as husband and wife.
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