Grandparents often have a special relationship with their grandchildren. A child who resents parental authority — and what child doesn’t? — may bond with a grandparent who provides love and attention while leaving discipline and rule enforcement to the child’s parents. Grandparents, in turn, enjoy spending time with (and perhaps shaping) a new generation within their family.
The relationship between grandparents and grandchildren is special, but it does not receive the same degree of legal protection as the relationship between parent and child. Parents, after all, have a legal obligation to support their children that is not imposed on grandparents. Courts have recognized that parents have a constitutional right to make important decisions about a child’s upbringing. Because grandparents do not have the legal responsibilities of parents, the law does not give them the same rights as parents.
As a practical matter, however, grandparents often assume parental responsibilities when parents are unavailable. A teenager who gives birth may rely on her parents to raise her child while she is in school. Working parents may depend on their parents to care for their child until they return home. Military couples who are both deployed, single parents whose work requires regular travel, and parents who do not feel emotionally equipped to raise a child often rely on the child’s grandparent to assume the burden and joy of parenting, at least during a child’s preschool years.
As grandparents age, their responsibility for raising a grandchild may lessen, but their love for their grandchild does not. Grandparents are in a difficult position when a child’s parents divorce and the custodial parent does not want the parents of the noncustodial spouse to have access to the child.
The Rights of Parents and Grandparents
Courts recognize that parents have a constitutional right to raise their children — a right they can only lose after a court hearing that comports with due process. Grandparents and other relatives have no comparable right, although a few courts have recognized their right to participate in the care of grandchildren when they have a history of doing so and when the grandchildren’s parents do not object.
When courts do terminate parental rights to protect children from abuse or neglect, most state laws do not give grandparents any preference for adoption. New adoptive parents generally have the authority to refuse contact between their adopted children and the children’s grandparents.
Since parental rights are rarely terminated, the issue of a grandparent’s right to maintain contact with grandchildren more commonly arises in the context of divorce. While the judicial trend is to order shared custody, courts have discretion to give one parent both physical and legal custody of a child. Physical custody means the child lives with that parent. Legal custody means that the parent has sole authority to make important decisions about the child, including the city in which the child will live and the school the child will attend.
When one parent has sole physical and legal custody of a child, the parent might not want the child to have contact with the family of the ex-spouse. Grandparents who love and want to maintain a relationship with their grandchildren are understandably distressed when their contact with a grandchild is cut off because of animosity between their child and that child’s former spouse.
State Laws Protecting Grandparents’ Rights
Recognizing the important role that grandparents play as care providers, mentors, family historians, and close companions, many states enacted laws that gave grandparents the right to visit their grandchildren over the objection of custodial parents. Those laws typically allowed courts to grant visitation rights to grandparents (and sometime to other people) when the court deemed the visits to be in the child’s best interests.
In Troxel v. Granville, a plurality of the Supreme Court held that a state law cannot override a parent’s right to decide who has access to a child. While the state can interfere with parenting relationships to protect children from harm, states cannot force a fit custodial parent to allow anyone except the other parent to visit the parent’s child.
The Supreme Court plurality concluded that a state court’s opinion that grandparent visitation would benefit the child cannot overcome the constitutional presumption that parents are best positioned to decide what is in their child’s best interest. In the absence of a finding that the parent was harming the child, the state court had no power to substitute its own view of the child’s best interest for the parent’s view.
The Washington law before the Court gave any person the right to petition for visitation. The fifth and deciding vote to strike down the law was based on the conclusion that the law could not stand because it potentially allowed people to interfere with the parental relationship who had no ties to the child at all.
Since the narrowest holding is typically controlling in a case decided without a majority opinion, whether a law that limits visitation rights to grandparents who have a close relationship with a grandchild would pass constitutional muster, is unclear. It is clear that such a law would not survive the plurality’s understanding of the Constitution.
Practical Advice for Grandparents
State courts have been understandably uncertain about the validity of state laws granting visitation rights to grandparents over a custodial parent’s objection. Some state courts have invalidated grandparent visitation laws entirely while others have upheld them. Some state legislatures revised their laws after Troxel in an effort to make the laws compatible with the narrowest ground for the decision.
Perhaps visitation laws are constitutional if they are limited to grandparents and if the visitation order is minimally intrusive upon the parent’s rights. Perhaps there are no circumstances under which grandparent visitation laws are constitutional. Until the Supreme Court speaks again, the status of grandparent visitation as a legal right is unclear.
Given the uncertain status of grandparent visitation laws, it is often best for grandparents to adopt a strategy that is less antagonistic than going to court. Getting along with both parents during their marriage and taking a neutral stance about marital disputes may avoid the kind of hostile relationship that motivates a custodial parent to prohibit an ex-spouse’s parents from seeing their grandchildren
Offering to help each parent by providing babysitting and childcare services after a divorce proceeding is commenced can also help the parents understand that maintaining a relationship with grandparents can be beneficial. Since time often overcomes tempers, making gentle inquiries about limited contact with grandchildren — by telephone or video apps — after some time passes may lay the groundwork for reestablishing a relationship with grandchildren.
Going behind a custodial parent’s back by chatting with grandkids at school or when they are visiting friends is a terrible strategy. The custodial parent inevitably learns that the contact has occurred and is likely to respond with anger. The parent may even seek a restraining order against grandparents who try to circumvent the custodial parent’s authority to control the contact that his or her children have with other family members.
When all else fails, discussing the situation with a family lawyer who practices in the state where the grandchildren reside will clarify the grandparents’ rights under state law. Keep in mind that litigation should be a last resort, as it tends to destroy the possibility of mending relationships between grandparents and custodial parents. Suggesting mediation or other alternatives to litigation may be the best approach if informal discussions with the custodial parent continue to be unproductive.