pageok
pageok
pageok
Widow(er) Obligated To Let Deceased Spouse's Parents Have Visitation With Child?

When may state law allow grandparents to have visitation with their grandchildren, over the parents' objections?

Let's set aside cases where the parents' parental rights can generally be terminated, because they're found unfit. Let's also set aside the rare cases where the grandparents could be found to be "psychological parents" because (to oversimplify) they've taken a parental role, with the parents' consent, for instance by raising the children to for several years while the parents have been absent. And of course let's also set aside the situation where the parents are just delighted by maintaining a relationship between their children and their parents, plus don't much object to the free babysitting (Mom, Dad, if you're reading this, that means you!). Let's just take a situation where state law allows the grandparents some visitation rights, so long as such visitation is seen as in the child's "best interests," and the parents (or parent, if only one is in the picture) object.

In Troxel v. Granville (2000), the Supreme Court held that such visitation may impose an unconstitutional burden on the parents' rights, but didn't resolve exactly when this would be so. Rather, the Court stressed that the particular statute in that case -- which "permits '[a]ny person' to petition a superior court for visitation rights 'at any time,' and authorizes that court to grant such visitation rights whenever 'visitation may serve the best interest of the child'" -- was so broad that it was clearly unconstitutional. And, the plurality said, "Because we rest our decision on the sweeping breadth of ยง26.10.160(3) and the application of that broad, unlimited power in this case, we do not ... whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation."

I haven't followed all the post-Troxel cases from the state courts, but my sense is that most of them have generally held that a parent has a constitutional right to deny grandparents visitation, at least unless there's a showing that lack of visitation will substantially "harm" the child (and not just be against the child's "best interests"). The South Carolina Supreme Court, however, has just taken a different view (Marquez v. Caudill, decided Jan. 22), in cases where the grandparents are the parents of a deceased parent. The court held that the father (technically, the stepfather, but the court said that he was properly treated as the father) was a fit parent. And it held, citing an earlier South Carolina case that relied on Troxel v. Granville, "Before visitation may be awarded over a parents objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child's best interest."

But in then went on to say:

We hold that a biological parent's death and an attempt to maintain ties with that deceased parent's family may be compelling circumstances justifying ordering visitation over a fit parent's objection. We find visitation here is in the children's best interest to further the relationship between the children and the mother's family. We further find the visitation ordered by the family court would not excessively interfere in Stepfathers relationship with the children. Therefore, the family court did not err by awarding Grandmother visitation.

A pretty substantial limit on parental rights, it seems to me. Perhaps it's justifiable; while I on balance favor parental rights, both the libertarian and the constitutional case for strong judicial protection of parental rights is complicated and, in my view, far from open-and-shut. But right or wrong, it seems quite noteworthy.

Anderson (mail):
Wow. Given the apparent coldness of the stepdad to Jason, and his grandmother's dingbattery, it seems like the kid is screwed no matter what.

Another reminder why I'm so happy not to be doing family law.
1.29.2008 2:48pm
D Palmer (mail):
After reading the decision and history of the case I would say that this boy and his sister shouldn't live with the father or grandmother.

If there was ever a case for requiring a license and genetic testing before reproducing these people are it.

Multiple suicide attempts, a family history of mental illness. These children are screwed and it is not their fault.
1.29.2008 3:10pm
Dan Weber (www):
I've also viewed this as "when the father dies, his parental rights pass onto his parents." If the father signed off his rights before death, his parents have no standing.

So this isn't so much a limit on "parental rights," as a discussion of who gets to use them.
1.29.2008 3:13pm
ruleswatch (mail):
I continue to be intrigued by the American legal idea of "parents rights"-- indeed "constitutional" rights, something that collapesed elsewhere in the common law world long, long ago. Surely, prima facie the appropriate test is "the best interests of the child" unimpeded by proto-property rights which cheapen the real interests involved --the best ends of a growing maturing and vulnerable human being.

What possible influence should "constitutional" let alone "parental" rights have here?

Grow up America!
1.29.2008 3:16pm
Prufrock765 (mail):
My state (Indiana) would follow this same analysis.
If the parent is dead and the court finds that visitation with grandparents is in child's best interest, then the court will grant visitation rights to grandparents.
There are also other scenarios in Indiana wherein grandparents can get visitation rights.
1.29.2008 3:18pm
Houston Lawyer:
You haven't lived until you lose a sibling and then face the prospect of not seeing your niece or nephew ever again. My mother was denied access to her grandson after my brother, they boy's father, died. Needless to say, this applied to all of my blood relatives, their family and friends. She sued my sister-in-law for visitation and was effectively stymied for quite some time by the Troxel ruling. Then my sister-in-law died and her sister obtained custody of my nephew. That of course led to another law suit with my nephew's aunt to once again get visitation rights. At least this time Troxel wasn't a defense.

If a man or woman wants to deny visitation to his own parents or relatives, I'm fine with that. However, once one spouse dies the dynamic changes. I don't see how widows or widowers should get less judicial interference with the raising of their children than divorced spouses do.
1.29.2008 3:21pm
Anderson (mail):
the appropriate test is "the best interests of the child"

So, Rulesie, when a court decides that Angelina Jolie would be a much better parent than you can ever be, and awards your kid to her, I suppose you'll be down with that?
1.29.2008 3:31pm
Brian G (mail) (www):
I feel sorry for the child in all of this. In my view, grandparent's should have visitation rights becuase it is in the child's interests to have a relationship with them, UNLESS a showing can be made why the grandparents are unfit, i.e. child molestation conviction or some other ascertainable issue.
1.29.2008 3:33pm
eric (mail):
The problem is obviously that the grandparents would, presumably, be able to visit the child during their son's time with the child. I see no reason why they should not be able to ask for some time for themselves if the father allow them to see the child during his lifetime and there is no fitness issues.

I would venture the guess that a custodial parent's right to keep their child away from loving relatives if often a manifestation of the custodial parent's poor judgment, anger, and/or pettiness. The same people who would exercise this right against grandparents are likely to be the same ones to deny visitation to the noncustodial parent. Denial of visitation is a problem that is rarely taken seriously, and along with "constitutional right to move" rulings, is used to separate the child from the noncustodial parent and his or her family.
1.29.2008 4:36pm
A. Zarkov (mail):
Suppose father wants to move so far away that the distance would frustrate grandparents' visitation rights? Does father have to get court approval before he can take a new job that would entail such a move? The grandparents have a great deal. They get visitation rights with no obligations, such as support.
1.29.2008 4:45pm
Kevin Lynch (mail):
I'm somewhat mystified at the support I'm seeing for the general idea of "grandparent's rights". "Parental rights" (or, more broadly, the rights of "legal guardians") are based on our recognition of a broad set of "parental responsibilities" for the care and upbringing of minor children. If those "parental responsibilities" are being met, it seems to me that it is no business of the state to interfere with those decisions, however silly or unreasonable they may seem to an outsider. "Grandparents' rights" of any kind uncoupled from a set of legally enforceable "grandparents' responsibilities" (or any other similar familial or nonfamilial relations) seems to lie well beyond the reasonable, at least to me. Expansion of "rights" to those without responsibilities put severe and potentially ever increasing burdens on those who do, in fact, recognize and uphold their responsibilities.
1.29.2008 4:51pm
Roger Schlafly (www):
The "best interest of the child" is just a meaningless slogan that allows the judge to act on his prejudices. No court ever really knows whether the grandparent visitation is in some interest of the child.
1.29.2008 5:14pm
eric (mail):

Suppose father wants to move so far away that the distance would frustrate grandparents' visitation rights? Does father have to get court approval before he can take a new job that would entail such a move? The grandparents have a great deal. They get visitation rights with no obligations, such as support.


Assuming you mean the father is the noncustodial parent and the grandparents involved are the paternal grandparents, his decision to exclude his parents from the children's life (or effective exclude them) is his decisions, they are, after all, his parents. Same goes for mom and the maternal grandparents. However, allowing the custodial parent to exclude the noncustodial parent's parents from seeing their grandchildren that they were involved with merely because the noncustodial parent died will only compound the effect of the noncustodial parent's death. The child is losing one of his or her parents and her grandparents at the same time.

Rights are only linked to responsibilities in the abstract. Visitation and child support are not conditioned on one another. The grandparents may be getting a "great deal" but this area of the law is not about who is getting the great deal. Furthermore, responsibilities are often only theoretical in nature. The mother of Sean Combs child theoretically has a responsibility to financial support the child, but receiving a physician's salary in child support makes that "responsibility" seem hallow indeed.
1.29.2008 5:24pm
eric (mail):
It also seems wrong to me to conclude that raising a child is such a burden. If that were the case, wouldn't we be in court arguing about who should have to take the child? This does not happen because raising children is rewarding in some sense. Parents often enjoy raising children.
1.29.2008 5:27pm
CrimsonTribe:
Does anyone know of any state laws requiring support by grandparents? Perhaps Louisiana because of the civil code? Puerto Rico's civil code requires ascendants and descendants to provide support to each other when necessary. 31 LPRA Section 562. I've reviewed support orders for people who've moved to one of the 50 states, and if, for example, a father refuses or is unable to support a child, courts there will order the grandparents to do so.
1.29.2008 5:28pm
alias:
The "best interest of the child" is just a meaningless slogan that allows the judge to act on his prejudices. No court ever really knows whether the grandparent visitation is in some interest of the child.

Perhaps, but if the judge is going to act on his prejudices anyway, the slogan has the benefit of focusing the judge's attention on the child's interests, rather than on claims of entitlement by the relatives.
1.29.2008 5:52pm
Kent G. Budge (mail) (www):
Perhaps giving grandparents visitation rights against parents' wishes is constitutional; I can't say. But from a pure policy perspective, it's a rotten idea. Grandparents need to accept, at some point, that their children have grown up and have their own families.
1.29.2008 6:24pm
Tareeq (www):
Recognizing that "obligated" is perfectly standard American English, and indeed preferred American legalese, I'd still prefer to see "obliged," which is shorter, doesn't sound like professional jargon, and is just as acceptable in American or any other English.
1.29.2008 7:06pm
David M. Nieporent (www):
Surely, prima facie the appropriate test is "the best interests of the child" unimpeded by proto-property rights which cheapen the real interests involved --the best ends of a growing maturing and vulnerable human being.
Surely, Ruleswatch, you see that this begs the question, which is: who decides what's in "the best interests of the child"? Does the State do it, or do the parents?

If the former, there's no principled stopping point. There's no reason the government can't take over the children of intact, two-parent families just as easily as it's doing here. And remember, "best interests" is not limited to "preventing harm to the child." It means that option A is better than option B, even if option B is adequate. The state can say, "You're doing a good job mothering your child... but the grandparents can do a better job, so we're removing the child from your home and giving it to them." (Shades of Kelo.)
1.29.2008 7:22pm
Best interested person:
Actually, for a "best interests of the child" case, look no further than good ol' Massachusetts -- Blixt v. Blixt, 437 Mass. 649 (2002).
1.29.2008 7:48pm
ReaderY:
There is a good argument that family law has been overconstitutionalized. Constitutional law is expressed in terms of abstract principles that inhibit solutions to fact-specific problems.

And nobody ever agreed to live by the principles involved.
1.30.2008 1:40am
TruePath (mail) (www):
You speak here as if the parents were a unit with coherent clear wishes. If in this case that the mother encouraged visitation with her parents but then when she died the stepfather refused I fail to see the violation of parental rights.

I mean don't legal choices made for a child by a parent who is now dead still remain valid, i.e., if the mother okays an operation for the child but falls dead right before the operation is started isn't that permission still valid? If so why not view this as simply a continuation of her parental rights after death and an inference to what her wishes would be in this situation?
1.30.2008 5:30am
A.C.:
Do children have an independent right, regardless of parental wishes, to be connected to their "clan"? Not everybody thinks of "family" strictly in nuclear family terms.
1.30.2008 9:15am
Sid (mail) (www):
Grandparents' rights is a kind, endearing, quaint form of legal intrusion into the fundamental nature of life. It is the verge of socialism. And it is high order bullshit.

We hold that in cases of abuse to a child, that reestablishing the family is the first and most-desired outcome. In the present case, we are not even alleging abuse. The step-father was declared fit in the ruling. Then he is the person held responsible legally for the children in his home. Period. Dot. The end. He could be charged with abuse or neglect if the child in his care is not treated properly.

Does a parent have the right to take their child to a church of their choosing? Does a parent have the right to expose their child to an extreme religion verging on a cult? Does a parent have the right to raise their child as an atheist? Does the court have any constitutional grounds to rule that anyone other than the parent can interfere with the decision about the child's religion?

Religion is just the example. Apply it to any variable in a child's life. Does a parent have the right to limit which friends are invited for a sleep-over? Does a parent have the right not to invite Uncle Jimmy for Thanksgiving because he is an alcoholic? Does a parent have the right not to invite Uncle Jimmy to Thanksgiving because he tells racist jokes? Because he does not shower daily? Because his breath stinks? At what point does a parent (who the court declared fit) have the right to exclude Uncle Jimmy from a child's life?

There may be every reason to want the grandparents involved in the child's life. But if a fit parent decides otherwise, that is a fundamental decision that the court should be a mile away from in any ruling.

We are inviting chaos to even dabble in the rights of any entity trumping a fit parent's decision.
1.30.2008 9:18am
AnneS:
It bears reminding that parental rights are not devisable or descendible. Specifically, to answer TruePath's question, the doctors are entitled to act based on the mom's premortem consent only if the live father doesn't step in prior to the surgery and tell the doctors that he refuses consent to the surgery. Mom's prior consent, at least in my state, is legally inoperable at that point, since her parental rights died with her. A court might look to the arrangements the deceased mother made, whether for medical treatment or grandparent visitation, as evidence of the child's best interests, but as a matter of law, the court isn't looking to vindicate the mother's rights by honoring her wishes.
1.30.2008 9:25am
Carolina:
I'm with Sid and Kevin Lynch. Barring evidence the parents are seriously harming the child, the state has no business questioning a parent's decision, whether that decision concerns visitation or which brand of toothpaste is used in the house.
1.30.2008 9:38am
rustonite (mail):
CrimsonTribe-
You asked for it, you got it:
Louisiana Civil Code, Article 136, Award of Visitation Rights:
Section B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:

(1) The length and quality of the prior relationship between the child and the relative.

(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.

(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.

(5) The mental and physical health of the child and the relative.

Also, Louisiana Revised Statutes, Title IX (Civil Code Ancillaries):
Section 344: Visitation rights of grandparents and siblings

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.
1.30.2008 2:12pm
rustonite (mail):
also, on the matter of moving a child, see the Revised Statutes, Title IX, Section 355.
1.30.2008 2:18pm
rustonite (mail):
reread CrimsonTribe's comment, realized s/he was asking about support, not visitation.

Article 229. Reciprocal alimentary duties of ascendants and descendants.

Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to life's basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.

That is among the sections that lay out the relationship between ascendants and descendants. A large portion of the civil code is devoted to this sort of thing.
1.30.2008 2:37pm
Buckeye Clerk:
In Ohio, visitation or companionship rights for grandparents of a deceased spouse are determined by Ohio Revised Code Section 3109.11. That section requires a court to consider the same factors used to determine regular parental visitation in Ohio Revised Code Section 3109.051(D). The code lists 16 factors to determine the visitation/companionship time including the "best interest of the child."

In Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, the Ohio Supreme Court held that the Ohio nonparental visitation provisions were constitutional under the Troxel standard. In Harrold, the court distinguised the Ohio provisions from the Washington statute found to be unconstitutional in Troxel.

Like Prufrock765 stated about Indiana, Ohio also has a similar approach to South Carolina.

For some new case law, Ohio's Twelfth District Court of Appeals recently issued a decision on this issue in Bauman v. Faught, 2008-Ohio-166.
1.30.2008 2:43pm