Grandparents Given Visitation Rights After Death of Daughter

FEBRUARY 22, 1999 VOLUME 6, NUMBER 34

Gayla and David Dodge were married in 1988. In the first two years of their marriage, the couple had two daughters, Tori and Kacy. Shortly after Kacy’s birth, Gayla Dodge was diagnosed as suffering from kidney disease.

Over the next three years, Gayla Dodge was in and out of hospitals. In 1993, she filed for divorce from David Dodge, and was granted custody of the two girls. By then the three of them had moved to Phoenix to live with Gayla’s parents, Donald and Lucille Graville.

Gayla remarried, and she and her daughters lived with her new husband for two years. When that marriage ended, they moved back in with Mr. And Mrs. Graville for a few months, and then moved in with David Dodge’s parents, the girls’ paternal grandparents, for a six-month stay. It was during that stay that Gayla suffered a seizure and was hospitalized; after her release from the hospital, she and the girls returned to her parents’ home in Phoenix to live. Gayla died in Phoenix a year later.

After the death of their mother, Tori and Kacy moved in with their father and his new wife, Andrea. They continued to visit the Gravilles, though disagreements began to surface between their father and their maternal grandparents. In September, 1996, about a month after Gayla’s death, David Dodge informed the Gravilles that the girls would no longer be allowed to visit them in their home.

Arizona, like all of the other states, has adopted a “grandparent visitation” law. Under the Arizona version, grandparents who have difficulty maintaining contact after the death or divorce of their children can be granted visitation rights if the court determines it to be in the best interest of the children. The Gravilles sought the intervention of the courts to secure regular visitation with Tori and Kacy.

David Dodge made several arguments to try to prevent the visitation between his daughters and his former in-laws. First, he argued that the visits were not in the girls’ best interests because the Gravilles both drank alcohol and smoked in their home, and he felt that their behavior would be detrimental to the girls. He also argued that the grandparent visitation law was unconstitutional because it interferes with a parent’s fundamental right to control the upbringing of his (or her) children.

The court first appointed a therapist to evaluate the relationship of the Gravilles to their granddaughters. The therapist opined that, because of the long-standing relationship and the active involvement of the Gravilles in the girls’ young lives, they should be permitted to remain in contact. The court not only ordered visitation, it also ordered David Dodge to pay $2,496.50 in costs (but not their attorney’s fees) associated with the lawsuit.

On appeal, David Dodge once again argued that the grandparent visitation law is unconstitutional. The Arizona Court of Appeals disagreed. While agreeing that parents do have the right to raise children as they see fit, the judges noted that parents’ rights are not absolute. “Given the instability of the nuclear family prevalent in modern society,” wrote the judges, “it is not unreasonable for the legislature ‘to attempt to strengthen intergenerational ties as an alternative or supplementary source of family support for children.'” Graville v. Dodge, January 28, 1999.

In some states, grandparent visitation laws have been declared unconstitutional. At least some of the challenged state laws permit the court to enter visitation orders even though the parents are both alive and remain married. Like most states, Arizona’s law only permits court-ordered visitation for grandparents after a divorce or the death of one of the parents. The law also requires the court to consider the history of the grandparents’ involvement and the motivations of the grandparents and parents.

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