Grandparents’ Court-Ordered Visitation Rights Under Review

JANUARY 17, 2000 VOLUME 7, NUMBER 29

Should grandparents have the right to enforced visitation with their grandchildren? Does the U.S. Constitution permit states to impose grandparent visitation on parents? Does state law adequately protect both the interests of families and the well-being of grandchildren? These are the questions posed by the U.S. Supreme Court case of Troxel v. Granville, argued January 14, 2000, but not yet decided.

Since Elder Law Issues’ last general discussion of grandparent visitation rights (“Rights of Grandparents to Visitation, Custody”) in October, 1995, the law has developed considerably (see, for example, the Arizona case reported in “Grandparents Given Visitation Rights After Death of Daughter”). Now Gary and Jennifer Troxel’s request for visitation every other weekend with their late son’s two daughters has reached the U.S. Supreme Court, after the Washington State courts in 1998 refused to order the girls’ mother to submit to the visitation.

Washington’s law (like Arizona’s) referred to the “best interests” of the minors. That, said the Washington State Supreme Court, could not be allowed to override the inherent right of parents to raise their children as they see fit. Unless the Troxels could show impending harm to their grandchildren, the state Supreme Court would not permit them to force visitation rights over the objection of the children’s mother.

Even as the Troxels’ case awaits decision in the U.S. Supreme Court, the issue of grandparent visitation continues to trouble lower courts. In Oklahoma last year, John and Connie Queen sought a court order compelling their own daughter to permit them regular visits with her son. The boy’s father had never been identified, and there were no divorce, custody or support proceedings pending. The Queens argued simply that their grandson’s “best interests” required court-ordered visitation rights.

The Oklahoma Court of Appeals ruled that the Queens had no right to visitation, and that any state statute purporting to give them such a right would be unconstitutional. If their grandson’s custody had already been legitimately before the courts (as in a divorce, custody, support or visitation proceeding between the parents), the Queens might have been able to intervene, said the Oklahoma court. Queen v. Henson, November 29, 1999.

After the U.S. Supreme Court rules in the Troxel v. Granville matter, even that argument may be unavailable. One question raised by the Supreme Court case is whether it is ever permissible for grandparents to intervene in parental custody proceedings.

Meanwhile, Arizona law permits grandparents to seek court-ordered visitation after the parents divorce, if the parents were never married, or if one parent is deceased or missing. Even that limited authority may change once the Supreme Court rules.

Footnote: On June 5, 2000, the U.S. Supreme Court rendered its opinion in Troxel v. Granville. The Court ruled that Washington’s state law is invalid because it violates the U.S. Constitutional guarantee against states enacting laws which deprive individuals of their right to “due process.” According to Justice Sandra Day O’Connor, who wrote the majority opinion for the Court, described the Washington statute as “breathtakingly broad,” and found that it interfered with the inherent right of Tommie Granville (the children’s mother) to care, custody and control of her children. The Court’s decision does not argue that grandparent visitation statutes must be invalid in every case, but only that the Washington statute is invalid since it includes no requirement that the parents’ decisions be given appropriate weight. Read the Court’s syllabus of the opinion, which in turn provides links to the majority, concurring and dissenting opinions.

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