Debate Over Grandparents' Rights

July 11, 2000 -- Do grandparents have the right to visit their grandchildren against the wishes of the children’s parents?

It’s a debate that has gripped America’s families and courtrooms. Last month, the Supreme Court struck down a Washington state law which granted anyone, including grandparents, the chance to petition for visitation rights when it “may serve the best interest of the child.”

But the ruling did not silence the debate. Every state has a similar statute on the books, and the court’s decision left open the chance that some could stand. Read what two voices in the debate have to say, and weigh in with your thoughts on our message board. The essays are the opinions of the writers alone and not of ABCNEWS.

Good for Grandparents and Children As every state legislature has recognized and the Supreme Court recently acknowledged, the changing nature of the American family makes the grandparent-grandchild relationship more important to a child’s well-being than ever before.

Grandparents often provide a stable, secure relationship that fills a child’s need to be connected to family, which can be especially important when the primary family is not intact.

A 1999 survey by the American Association of Retired Persons found that the state of American grandparenting is strong. Most grandparents interact regularly with their grandchildren: more than eight in 10 have talked on the phone or seen a grandchild in person within the past month; seven in 10 have purchased a gift for a grandchild in the past month, and a similar number have had a grandchild to their home to eat a meal.

AARP believes that in the case of divorce, separation of the death of a parent, grandparents should be allowed to petition the court for visitation with grandchildren, where the court deems it to be in the best interest of the child. While there is a presumption that custodial parents act in the best interests of their children, there should be an opportunity in instances of broken families for the court to protect the child’s interest in an ongoing relationship with grandparents.

There are currently more than 2.5 million grandparent-headed households in which neither parent is present. More than 1.3 million American children are being raised solely by the grandparents. Additional millions of grandparents provide day care for their grandchildren.

For families experiencing temporary or long-term difficulties, federal and state policies and laws should be enacted that assist grandparents and other caregiver relatives in providing for children in their care. At the most basic level, this could be done by allowing custodial grandparents (and other relatives) to enroll children in school and oversee their access to basic medical care.

Further, states should enact laws to eliminate or reduce the disparity between the benefits that are paid to grandparents and other relative caregivers and the benefits that are paid to foster parents.

Grandparents have a vital role to play in the lives of their grandchildren, particularly in situations when the child’s immediate family has undergone dramatic change or hardship. In cases of divorce, separation or the death of a parent, grandparents can provide a grandchild with a much-needed sense of stability and connection to the family.

Because of this, AARP believes that grandparents should be allowed to petition courts for visitation when the court deems it to be in the best interest of the child. This is not only good for grandparents — it’s good for children, as well. Cheryl Matheis is the Director of State Legislation for the AARP.

Protecting Basic American FreedomsIn its recent ruling on grandparent visitation, the Supreme Court reaffirmed parents’ fundamental right to decide what is best for their children, and made it harder for trial courts to discount that right in visitation cases. This is good news, not only for parents, but for anyone concerned about limiting intrusive governmental paternalism.

At stake in this case was whether and when state courts may override parental decisions, ordering parents to let grandparents or other nonparents have “visitation” with their children.

This “visitation” most often involves unsupervised visits in a grandparent’s home, often in another city or state. Parental objections based on a grandparent’s abusive past conduct, the grandparent’s refusal to follow the parent’s wishes on child rearing matters, or the child’s need to be elsewhere have all been overridden by judges applying a variety of state statutes.

Parents have been forced to accede to visitation they deem dangerous to their children’s physical or emotional well-being. For many, the lawsuit was one more blow following the pain and disruptions of a spouse’s death or a divorce.

The court did not issue a majority opinion. However, the justices’ disagreements concerned various technical and procedural issues more than the substance of the case. The plurality and several other opinions emphasized a parent’s fundamental right to make decisions concerning the care, custody and control of his or her children.

Breaking new ground, a majority of the justices held that the states must presume a fit custodial parent is acting in his or her child’s best interest, even when the parent decides against visitation. While this presumption can be rebutted, it must be the state courts’ starting point. The fact that the grandparents have a relationship with the child does not rebut this presumption; nor does the fact that the child’s father or mother, whose parents are bringing the lawsuit, is deceased.

However, the court’s decision will have little impact on grandparents who have raised, or are raising, their grandchildren. Six justices explicitly stated that nonparent visitation statutes may have a valid role in protecting the interests of “de facto parents,” longtime caregivers who have taken over the parental role.

Parents everywhere should heave a profound sigh of relief. Parents know that they are called upon, day after day, to make decisions about what is best for their child. Many of these decisions affect people outside the immediate family household; all affect the child.

This responsibility can be terrifying, yet it is the essence of parenthood. If judges may replace fit parents in making such decisions, where shall they begin? And where will it end? If adult citizens cannot be trusted to make decisions about who shall associate with and care for their children, what other decisions are they incompetent to make?

In the end, it comes down to whether this is a country where we trust ourselves to make the important decisions, or whether we presume that the state knows better.

Karen A. Wyle is appellate attorney for the Coalition for the Restoration of Parental Rights.