Posts Tagged ‘Troxel v. Granville’

State High Court Strikes Down Grandparent Visitation Law

AUGUST 18, 2003 VOLUME 11, NUMBER 7

A decision by the Michigan Supreme Court is the most recent to address the issue of grandparents’ rights to visit their grandchildren. In the Michigan case, the state law giving grandparents rights was found to be unconstitutional. Not all states have reached the same result—Arizona courts, for example, continue to maintain that the law in Arizona can be used to force visitation in at least some circumstances.

The Michigan case arose after Joseph DeRose was convicted of molesting his step-daughter. He was sentenced to prison for ten to twenty years, and his wife Theresa filed for divorce. In the divorce proceedings, not surprisingly, she was given custody of the couple’s daughter, now six years old.

Joseph DeRose’s mother Catherine DeRose then filed a request with the court that she be allowed to visit her granddaughter. She argued that contact with grandparents is good for young children, and that state law permitted her to seek visitation in such cases. After a court investigation, the judge ordered that Catherine DeRose be given two hours of supervised visitation every other Sunday, possibly increasing to four hours if all went well.

In making his decision, the judge made clear that he thought the imposition on Theresa DeRose was small and that contact between granddaughter and grandmother would be good. He mentioned that he thought Theresa DeRose might now be trying to “overcorrect” for not having realized that something was going on with her husband’s sexual conduct with her older daughter. “It doesn’t strike me that there is any reason here that a child should be deprived of a grandmother,” ruled the trial judge.

The Michigan Supreme Court disagreed. After observing that nothing in the Michigan law on grandparent visitation that “requires deference of any sort be paid … to the decisions fit parents make for their children,” the Court found the Michigan statute to be unconstitutional. For the moment, at least, there is no law in Michigan permitting grandparents to seek court-ordered visitation with their grandchildren. DeRose v. DeRose, July 31, 2003.

The DeRose case, of course, relies heavily on the divided U.S. Supreme Court in Troxel v. Granville in 2000. In that case, a majority of Supreme Court Justices struck down a Washington state statute which purported to give grandparents the right to go to court to seek visitation. In Arizona and some other states, courts have ruled that similar statutes are not defective, and grandparents’ visitation rights can be secured. Not so, now, in Michigan.

States Differ On Grandparents’ Rights To Visit Grandchildren

JULY 30, 2001 VOLUME 9, NUMBER 5

When the United States Supreme Court decided its landmark case regarding grandparents’ visitation rights in June of 2000, the Justices might have thought they were laying many of the legal issues to rest. Troxel v. Granville decided that the law in Washington State giving grandparents the right to court-ordered visitation is unconstitutional, at least as it was applied to the facts of that case. That case determined that Tommie Granville has the right to decide whether and how her children’s paternal grandparents would have contact with their grandchildren.

Rather than resolving the question, the Supreme Court’s decision has increased the number of cases addressing the grandparent visitation issue. Each state court is faced with three choices:

Decide that their own state statute is invalid.
Determine that the statute may be valid, but the application of the statute in the individual case is unacceptable, or
Uphold their own state statute and determine that it is valid as applied in the individual case.

It is too early to determine the final resolution of grandparent visitation battles, or the statutory language that is most likely to be upheld. Recent decisions from state courts include:

Arizona’s Court of Appeals upheld the Arizona visitation law and the order granting a grandmother rights even after her son (the children’s father) had consented to adoption by the children’s step-father. Jackson v. Tangreen, December 26, 2000 (see the the January 1, 2001, Elder Law Issues for more information on this Arizona case).

Mississippi’s Supreme Court upheld a visitation order granted to the maternal grandparents of two children. Their mother had been incarcerated in another state on murder charges and their father disapproved of the contact the children had with their mother during visitations, but the Court mandated visits. Zeman v. Stanford, July 26, 2001.

Indiana’s Court of Appeals determined that there is a presumption that fit parents’ decisions about visitation are in the children’s best interests, and that grandparents (and the courts) must overcome that presumption before visitation can be ordered. Evidence that visitation might be in the children’s best interests was not enough to overcome the parent’s constitutional right to make the decision. Crafton v. Gibson, July 11, 2001.

New Jersey’s Superior Court Appellate Division decided that the paternal grandfather was not entitled to court-ordered visitation over the objections of the children’s mother. At least part of the Court’s decision was based on the grandfather’s egregious treatment of his late son’s widow in the litigation itself. Wilde v. Wilde, June 22, 2001.

Grandparent Visitation Rights Upheld In Arizona Court Case

JANUARY 1, 2001 VOLUME 8, NUMBER 27

In June of 2000 the U.S. Supreme Court decided the case of Troxel v. Granville, concerning the rights of grandparents to secure court-ordered visitation with their grandchildren. In the wake of that case many observers predicted that no such right could survive. Arizona’s Court of Appeals last week disagreed, and upheld Arizona’s law giving visitation rights to at least some grandparents.

Robert and Christy Thon had two children before their marriage broke up in 1994. Christy retained custody of the children, but in 1997 Robert’s mother Sandi Tangreen successfully petitioned the Yavapai County court in Prescott for visitation.

Arizona law (Arizona Revised Statutes section 25-409) permits a grandparent to request court-ordered visitation in three circumstances:

If the parents have been divorced for at least three months, or
If one parent has been missing for at least three months, or
If the child was born out of wedlock.

The trial judge found that the basic requirements had been met, and that visitation would be in the children’s best interests. Visitation was ordered and continued for the next year.

By 1998 Christy had married Steven Jackson, and her new husband wanted to adopt the children. Robert, their father, agreed, and the adoption was shortly completed. The Jacksons then sought to terminate Ms. Tangreen’s rights to visitation.

The trial court determined that adoption by a stepparent does not terminate the biological grandparents’ right to visitation, and ordered that the visits continue. While the Jackons’ appeal was pending the U.S. Supreme Court decided Troxel v. Granville.

The Arizona Court of Appeals, in a decision filed the day after Christmas, decided that the U.S. Supreme Court opinion did not control their decision. Noting that the Supreme Court decision had been divided (a 6-3 vote had found Washington State’s similar statute unconstitutional), the Arizona court reasoned that the defects in the Washington statute are not found in Arizona’s law.

The Court of Appeals pointed to several distinctions between the two state statutes. Among the differences:

Washington applied its visitation rights to any interested person, but Arizona’s statute is limited to grandparents and great-grandparents.
Arizona law only permits visitation orders in cases of divorce, missing parents or out-of-wedlock births.
Arizona’s statute requires the trial court to consider “all relevant factors” in determining the child’s best interests.

Jackson v. Tangreen, December 26, 2000. Arizona’s grandparent visitation statute has survived its first challenge in the wake of the U.S. Supreme Court ruling in Troxel. This area of the law, however, is far from finally settled.

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