| MTmom |
| (Carpal \'Tunnel) |
| 09/07/07 09:42 AM |
Re: Bamma Needs Help
|
Ok - only because I'm in a rotten mood courtesy of ds' sm and my ex. mil today, and because my family have all suffered immensely due to a "grandparent grandchild contact" lawsuit, I'm going to continue arguing with you. I'm not an attorney, and I don't think I'm the foremost authority on grandparent visitation case law and statutes.. but I disagree with you completely.
First of all, here is a linke to the troxel v. grandville suppreme court decision: http://parentsrights.org/states/wa/wa73197.html
Please show me where in that decision (or in your own link to the decision if you prefer) It says that the USSC was only applied to the WA statute. I am certain it does not say that.
The statutes in the states you reference as having been affirmed were actually decided “as applied” rather than on their face, meaning the court did not interpret the constitutional issues of the statute itself, only as applied to the cases it referenced. Troxel has been cited and applied in court decision in each of those states.
For an example, Mass- Blixt v Blixt for instance. Yes, they stated the statute itself was constitutional, but outlined the criteria that was to be applied to GPV based on Troxel and to date. The GPs did get visitation in that decision but the court was so specific in what it deemed to be proper standing to be granted visitation as to have practically rewritten the statute in the ruling. Every case that I’m aware of in MA since Blixt has ruled in favor of the parent citing Blixt and Troxel. That case was actually a great win for parents.
In Maine, Conlogue v Conlogue the statute was challenged both facially and as applied. The court ruling indicated that the appeal could be decided on an as applied basis and chose not to address the facial issue. Troxel is cited in that case and the decision rendered was in favor of the parent specifying how Troxel applied.
CT did not rule it’s statute unconstitutional either. Roth v Weston was one of the first CT cases to come after Troxel. Troxel was heavily cited and once again the decision rendered, in favor of the parent, on an as applied basis. Factors applying to the case specific to the Troxel decision are cited. To my knowledge a GP has not effectively waged a GPV suit against a parent in CT since that decision. The Denardo v Bergamo case in which the parents filed to terminate a visitation order due to the Roth decision was found in favor of the parent and affirmed by the appeals court.
The only states that have ruled their statutes unconstitutional based on Troxel are WA, MI and IL & IA. The remaining states you have referenced have all ruled in the favor of the parents in the precedent caselaw based on citations from Troxel even though the statutes were not ruled unconstitutional, I could look up links to all the relevant case law if you're interested.
You might also be interested the Dodge v Granville USSC writ which was remanded back to the AZ appeals court for a ruling consistent with Troxel. The USSC chose not to hear that case itself as they felt their ruling in Troxel already applied to the case at hand and issued a strongly worded writ to that effect, which is also citable in all 50 states.
I maintain that for this particular grandparent - the first step is to first find out WHY the bio dad who she admits has sole custody of the child over her biological daughter doesn't want her to have vistiation. Does he oppose ALL visitation? Or does he just insist on being the parent and she becoming a grandparent. Does he allege abuse, or is he mentally unstable?
That's a lot of if's, and even to pursue a court order for grandparents visitiation - her pleadings will have to establish what she believes to be the reason for the restrictions (that's in the NV rules of civil procedure).
Why put the whole family and most importantly the children through an ugly court fight with out first behaving like a grown up and asking what the problem is?
I'm very passionate about this issue as you've probably noticed. And I believe very strongly that parents are the parents. period. If grandma wanted to assert her claims about acting in loco parentis, she had her opportunity.. and dad is now acting like a dad.. she needs to respect that.
Not that she should never be allowed to see the kids again, but a parents decision needs to be given "special weight" in these instances.