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.