The Volokh Conspiracy - 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 §26.10.160(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.

	[Eugene Volokh, January 29, 2008 at 2:22pm] Trackbacks 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 §26.10.160(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.