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Grandparents’s Visitation Rights - To Grandfather’s House We Go?
During the holiday season, we are reminded of the poem by Lydia Child written over 150 years ago, "Over the river and through the woods, to grandfather's house we go; The horse knows the way to carry the sleigh; Through the white and drifted snow."

Unfortunately for many grandparents, they will not be able to visit with their grandchildren for the holidays or any other time due to the divorce of their grandchildren's parents or other circumstances, such as that their child and his or her spouse have decided that the grandparents should no longer see the grandchildren. This is a complex, emotion-laden problem which courts throughout the United States are wrestling with in an effort to strike an equitable balance among the rights of children, their parents, and grandparents.

In today's society grandparents are playing an ever-increasing role in the rearing of their grandchildren due to divorce or their circumstances requiring them to be child-care providers for working parents. The rise of drug and alcohol abuse has also resulted in many grandparents playing a more active role in the day-to-day lives of their grandchildren.

There is a dichotomy of views in state legislatures, the courts, and among legal authorities over whether there should be legislative recognition of a grandparent's right to visit grandchildren over the objection of the children's parent(s). Many states have enacted laws that give grandparents legal standing to commence proceedings to seek court-ordered visitation. While legislators may be motivated by a sense that children should have a right to a continuing relationship with their grandparents or because many grandparents desire to visit with their grandchildren only on special occasions, such as holidays and birthdays, which should not unduly interfere with parental autonomy, the courts have great difficulty in fashioning effective orders to accomplish this goal. Some legislators and judges believe that it is very difficult, and often contrary to the "best interests" of the children, to impose a court-mandated visitation schedule for grandparents over the objection of their parents. This dilemma also raises question of the constitutionally protected right of parents to raise children as they see fit.

Constitutional protection notwithstanding, parents are not totally free to act as they please. The family itself is not beyond regulation in the public interest, and the rights of parenthood are not beyond limitation. The state in its role as parens patrie can restrict the parents' control as long as there is a "reasonable relation to any end within the competency of the state."

In the last several years, many states have enacted statutes that create a right of grandparents to seek court-ordered visitation. These laws recognize the unique importance of the relationship between grandparents and grandchildren. As one New York court observed:

Visits with grandparents are often a precious part of the child's experience and there are benefits which devolve upon the grandchild...which (s)he cannot derive from any other relationship.

In some states the grandparents' access to the court is quite limited, and the law provides that grandparents can seek visitation only where the their child-parent is deceased. The majority of states, however, have expanded the rights of grandparents to afford them the opportunity to seek visitation with the grandchildren not only upon the death of a parent but also when the parents are divorced and in other cases "where circumstances show that equity would see fit to intervene." Sometimes, the grandparents' are unable to visit because their divorced child-parent is not visiting his or her own child on a regular basis or is living in a distant locale that does not allow the grandparents to be with their grandchildren during a period of visitation of the natural parent with the children.

A more difficult situation arises when grandparents are seeking to obtain visitation when there is still an intact family relationship. The courts apply different standards of proof to situations to cases where there has been a divorce or death and to those where an intact, functioning family objects to grandparent visitation. Where a parent of the grandchild has died, the parents of the deceased generally have the required legal standing to seek court intervention. These grandparents can proceed directly to a trial where they have the burden to prove that such visitation over the objection of the surviving parent is still in the best interests of the child.

In the cases of an intact family, however, grandparents have to go through a two-step process. First, they have to demonstrate their entitlement to standing by proving that equitable circumstances exist sufficient to justify the court conducting further proceedings. If the grandparents overcome this burden, they can then proceed to the issue of whether providing for visitation is in the best interests of the children. As can be expected, courts are particularly reluctant to order grandparent visitation when faced with an intact family objecting to such involvement. As both judges and mental health professionals have observed in cases of this kind, if the court intervenes, it could undermine the child's sense of security in the family, and the positive effects of grandparent visitation would be outweighed by the impairment of stability and would not be in the child's best interests.

In cases where the court finds a significant degree of dysfunction in the family caused either by the grandparents or their child's dysfunctional relationship with them, visitation will usually be denied. In some states grandparent visitation cannot be ordered over the objection of the parents in an intact family without showing a substantial danger of harm to the grandchild.

Several state courts have elaborated on the circumstances when grandparents' visitation can be awarded. In some states a court can award grandparents visitation without their proving exceptional circumstances; in this case, the court relies only on the issue of the child's best interest. Many other courts require the grandparents to first establish that there is a substantial relationship and prior contact with the grandchild or when no such relationship exists, that it has been frustrated by the parent, and the grandparents have made a sufficient effort to establish such a relationship.

In establishing the best interests of the children, grandparents are often required to offer the testimony of expert witnesses, such as psychiatrists or psychologists. The court will also on occasion appoint a neutral mental health professional to evaluate the grandparents, the parents, and the grandchildren to provide forensic evidence regarding the emotional stability and level of functioning of the parties and the children. Of course, generally, the grandchildren's emotional well-being and best interests would be served by having contact with loving grandparents and other members of the extended family. This is especially true in the case of the divorce or death of a parent. Grandparents not only provide additional love and affection for the child but often offer a relationship in which the child feels more comfortable discussing problems with school friends or even with their parents. Grandparents tend to be less judgmental than parents, and often they can provide a wisdom gained over their years of life. Of course, grandparents also derive significant benefits through continued access to their grandchildren.

A grandparent may be afforded visitation rights to a child born out of wedlock once paternity of the child as the natural parent is established. Conversely, courts have also held that a grandparent's rights derive from their child's parental rights. As a result, grandparents' visitation rights have been terminated when their child's parental rights were terminated. Interestingly, the statutes providing for grandparent visitation have been narrowly construed so that applications by great grandparents are denied as not being legally recognized.

While animosity between grandparents and parents is presumed in any statutory framework, since if there was not such animosity there would be no need for judicial intervention, grandparents seeking visitation over the objection of a parent, even in a non-intact family, have difficult legal and practical problems to overcome. The cases make it clear that grandparents who cannot resolve their differences with parents determined to oppose visitation are unlikely to see their grandchildren even when visitation is ordered by the court. Still, when confronted with a parent who is violating the court order, grandparents do have certain remedies to seek enforcement of the court order, including contempt and incarceration of the parent. One can imagine that such acts would only exacerbate a dysfunctional situation and create further stress on the grandchildren which would result in the court reluctantly concluding that such visitation is not in the best interests of the child.

The courts are, of course, concerned that both grandparent and natural parent may display animosity towards each other in the presence of the children. Courts are rightfully concerned that such parties will be incapable of preventing their feelings towards one another from infecting any visitation between grandchildren and grandparent. In turn, especially if the grandparents are wealthy and able to finance extensive litigation, the children will become pawns in an ugly game of vindictiveness. Not every dispute or difficulty in life can be resolved by litigation. Grandparents should, therefore, first try to avail themselves of non-legal means ameliorate the problem they have in seeing their grandchildren before seeking the intervention of a court. Often a mutually respected family friend or relative can act as an intermediary, or a minister or school psychologist can provide guidance and a calming influence. However, if all such efforts are spurned by the parent who seeks to prevent the visitation, grandparents may well be advised to seek legal advice concerning how best to proceed through the thicket of litigation to maintain a cherished relationship with their grandchildren even in the hostile atmosphere of litigation.

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