In the aftermath of Troxel v. Granville, grandparents who want visitation rights with their grandchildren should try to resolve any conflicts without resorting to the court system by using mediation.
Mediation where a third party helps the differing parties reach a legally binding agreement, and in some states a visitation action, cannot be started unless the parties have been through mediation.
In Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections. The high court, citing a constitutional right of parents to rear their children, held that “ [a] law that allows anyone to petition a court for child visitation rights over parental objections unconstitutionally infringes on parents’ fundamental right to rear their children. The custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”
Since Troxel v. Granville, many states have amended or rewritten their statutes concerning third party visitation. Suits for visitation in some states may be brought only in the case of a divorce, death, “or other disruptive circumstance in the family.” Moreover, in an intact family, which means a married couple, the husband and wife are “usually judged to have the right to make decisions about grandparent visitation.” However, in fractured families, grandparents suing for visitation “must provide clear and convincing evidence, that visitation is in the best interests of the child.” In addition, in jurisdictions with even more stringent statues, “the grandparents may be required to show that the child will suffer harm if visitation is not allowed.”
Some legal observers believe the high court may revisit grandparent and third-party visitation, and it seems likely that the states will revise their statutes governing such visitation as they are tested in court.