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Family Law Reader

Family Law Reader

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.


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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