1995 National Legal Research Group, Inc.

Argument 1: The Court Exceeded Its Statutory Authority in Ordering Grandparent Visitation

Most grandparent visitation statutes grant grandparents the right to petition for visitation upon the breakup of the nuclear family, e.g., divorce, annulment of marriage, or death of a parent. Questions have therefore arisen as to whether a court can grant grandparent visitation in circumstances other than those specifically contemplated by the statute.

By way of example, in B.R.O. v. G.C.O., 646 So. 2d 126 (Ala. Civ. App. 1994), the Alabama grandparent visitation statute provided that grandparents may be afforded visitation rights when the parents have filed for a dissolution of marriage and when after the dissolution decree was entered the grandparent had been denied visitation for 90 days. The maternal grandmother urged a reading of the statute that would have allowed visitation when a grandparent had been denied visitation for 90 days, without the prerequisite of a dissolution decree. The court held that it could not grant greater visitation rights than the statute provided.


Many times, parents will argue that a court is without authority to grant grandparent visitation after an adoption. This argument has been met with varying degrees of success.

For example, in Beckman v. Boggs, 21 Fam. L. Rep. (BNA) 1244 (Md. Ct. App. Mar. 22, 1995), the court addressed the question of whether the paternal grandparents could maintain visitation rights after their grandchild had been adopted by the child's maternal grandparents, with the father's consent after the death of the child's mother. The court held that adoption did not cut off the paternal grandparent's rights, because their rights to visitation were not "derivative" of the father's parental rights. Rather, their rights as grandparents were independent. Accord In re Adoption No. 92A41, 95 Md. App. 461, 622 A.2d 150 (1993) (upon death of natural parent and adoption of child by stepparent, mother or father of deceased parent remains eligible to petition court for visitation).

In re Adoption of C.G.F., 168 Wis. 2d 62, 483 N.W.2d 803, cert. denied 113 S. Ct. 408 (1992), reached the same result. In that case, the court held that the grandparents' rights to visitation are not abolished upon the adoption of the grandchild by a stepparent when the natural parent dies.

In In re Adoption of A.M.R., 527 N.W.2d 565 (Minn. Ct. App. 1995), the stepmother adopted the father's children with the natural mother's consent. The stepmother then sought to terminate the maternal grandparents' visitation rights. The court held that the adoption of the children by a stepparent did not automatically terminate the grandparents' visitation rights.

The opposite result was reached in In re Adoption of J.C.G., 177 Wis. 2d 424, 501 N.W.2d 908 (Ct. App. 1993). In that case, the stepparent adopted the child after the natural parent's rights were terminated, as opposed to the situation where a stepparent adopts a child after the death of the natural parent. In the case where the parent's rights are terminated, the court held that a grandparent's visitation rights are terminated as well.

Again, in In re Martin, 68 Ohio St. 2d 250, 626 N.E.2d 82 (1994), the putative paternal grandparents filed a petition requesting visitation rights with the putative grandchild. The putative father had never filed a legitimation petition, and a paternity action had never been filed. The child had been adopted by its maternal grandparents. In such a case, the court held, the paternal grandparents were nothing more than putative grandparents and were not qualified to seek visitation. Moreover, even if paternity were established, the subsequent adoption by the maternal grandparents cut off any rights the father, and therefore the paternal grandparents, might have. Accord Reed v. Glover, ___ Ark. ___, 889 S.W.2d 729 (1994) (statute allows visitation upon divorce, death, or legal separation and therefore does not authorize visitation for grandparents of child born out of wedlock).

In Bopp v. Lino, ___ Nev. ___, 885 P.2d 559 (1994), a child's natural parents were divorced, and the child's stepfather then adopted the child with the natural father's consent. The child's paternal grandparents then petitioned for visitation rights. The court held that the grandparents did not have standing to seek visitation rights because the adoption cut off the grandparents' legal relationship with the child.

Paternity Proceeding

A few cases have considered whether the grandparents of an out-of-wedlock child whose parentage is established by paternity proceedings may seek visitation with their grandchild. For example, in In re Visitation of Hegemann, ___ Wis. 2d ___, 526 N.W.2d 834 (Ct. App. 1994), the court held that a paternity proceeding whereby the paternity of the natural father was established did not qualify as an "underlying proceeding" affecting the nuclear family sufficient to grant the grandparents' standing to seek visitation. Cf. In re Paternity of Nastassja L.H.-J., 181 Wis. 2d 666, 512 N.W.2d 189 (Ct. App. 1993) (paternity proceeding where there was an outstanding order of support qualified as an underlying proceeding sufficient to grant grandparents standing to seek visitation).


Where a statute provides that grandparent visitation may be held in the event of the divorce of the parents, the question has arisen as to whether the grandparents must intervene in the divorce proceeding to preserve their rights or whether the grandparents may bring an independent action. The question was addressed in Rosse v. Rosse, 244 Neb. 967, 510 N.W.2d 73 (1994). In that case, the court held that the grandparents' visitation rights granted by the statute in the event of a divorce did not require the grandparents to intervene in the divorce proceeding. The grandparents could bring a separate petition for visitation after the divorce.

Argument 2: The Statute Granting Grandparent Visitation Is Unconstitutional

As noted in our previous article, the overwhelming weight of authority has been that granting grandparent visitation rights does not unduly interfere with the constitutional right of a parent to raise his or her child without undue state interference. As of 1992, only one decision, Van Cleve v. Heminger, 141 Wis. 2d 543, 415 N.W.2d 571 (Ct. App.), review denied, 141 Wis. 2d 985, 416 N.W.2d 297 (1987), had intimated that an order for grandparent visitation when the nuclear family is intact or over the objection of the custodial parent would be violative of a parent's rights to determine what is in the best interests of the child.

A number of new cases have now specifically held that grandparent visitation over the objections of parents is violative of a parent's constitutional rights.

In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), the paternal grandparents sought court-ordered visitation with their grandchildren pursuant to Tennessee's grandparent visitation statute. This statute allows such visitation when it is deemed by the court to be in the best interests of the child. The court held that the statute violated the state constitution's right to fundamental liberty interests, the state cognate to the federal Constitution's fourteenth amendment rights. The court concluded that the state constitution's right to privacy fully protects the right of parents to care for their children without unwarranted state intervention.

In Brooks v. Parkerson, 21 Fam. L. Rep. (BNA) 1245 (Ga. Mar. 17, 1995), the court considered the Georgia grandparent visitation statute. This statute grants any grandparent the right to seek visitation by filing an original action for visitation rights in the absence of a proceeding whereby the custody of the child is at issue. The court held that this statute was violative of the federal constitutional right of a parent to direct the upbringing of his or her child, the first case to so explicitly hold.

In Olson v. Olson, 518 N.W.2d 65 (Minn. Ct. App. 1994), the court clearly stated that a grant of visitation rights to a maternal grandparent over the objection of the custodial mother infringed on the constitutionally protected parent/child relationship. The court stated that grandparent rights are derivative of and secondary to parent/child rights. Thus, it was the legislature's intent that grandparent rights be enforceable only against an unrelated parent, e.g., a child-in-law. Cf. Hill v. Divecchio, 425 Pa. Super. 355, 625 A.2d 642 (1993) (grandparent visitation rights are enforceable against custodial parent, regardless of whether custodial parent is grandparents' child or child-in-law). The same result was hinted at in Steward v. Steward, 21 Fam. L. Rep. (BNA) 1223 (Nev. Mar. 2, 1995). In that case, the nuclear family was not intact, the parents having divorced. Both parents, however, had joint legal and physical custody, and both parents objected to grandparent visitation. In such a case, the court held, the grandparents could not seek visitation, as such would interfere with the parents' rights to raise their children. "Absent clear and convincing evidence showing otherwise, the court should not interfere with the decision of the natural parents." Id. at 1223-24.

The grandparent visitation statute was also upheld in Moses v. Cober, 641 N.E.2d 668 (Ind. Ct. App. 1994). In that case, the court noted that the original grandparent visitation statute provided that a grandparent could not obtain visitation against the express wishes of the custodial parent. The original statute had been amended, however, to delete that provision. Therefore, the court ruled, a grandparent could seek visitation over the objection of the custodial parent where such visitation was deemed to be in the best interests of the child.

By contrast, in Herndon v. Tuhey, 857 S.W.2d 203 (Mo. 1993), the court considered Missouri's grandparent visitation statute, which allows for grandparent visitation if a grandparent has been unreasonably denied visitation for more than 90 days and such visitation is in the best interests of the child. There, the court held that given the fact that parents have a constitutional right to make decisions affecting the family, the magnitude of the state infringement in the case of grandparent visitation does not qualify as an undue burden on that right. Relying on King v. King, 828 S.W.2d 630 (Ky.), cert. denied, 113 S. Ct. 378 (1992), the court held that grandparent visitation rights do not unduly infringe on a parent's fourteenth amendment rights.

The constitutionality of New Jersey's recently revised grandparent visitation statute was also upheld in R.T. v. J.E., 277 N.J. Super. 595, 650 A.2d 13 (Ch. Div. 1994). In that case, the court considered whether New Jersey's statute, which allows grandparent visitation without any underlying disruption in the nuclear family, is violative of a parent's fourteenth amendment rights. The court, citing King v. King, supra, and Herndon v. Tuhey, supra, stated that a state's legitimate interest in fostering a grandparent/grandchild relationship outweighed the minimal infringement on the parent/child relationship. Rather, the grandparent visitation was less than a substantial encroachment on a family. See also Fairbanks v. McCarter, 330 Md. 39, 622 A.2d 121 (1993) (after termination of marriage by death, annulment, or divorce, grandparent may seek visitation pursuant to statute without having to prove existence of exceptional circumstances warranting visitation).


As the statutes delineating grandparents' rights continue to evolve, granting grandparents greater and greater rights, no doubt litigation concerning these rights will increase. Courts should be guided not only by the statutory language granting such rights, but by the traditional rules protecting the parent/child relationship and the notion of the best interests of the child.

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