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Grandparents’ rights are in retreat. A wave of laws that touched all 50 states set out to allow grandparents to visit children, sometimes even against parents’ wishes. But courts in many states are allowing grandparent visitation only in extraordinary circumstances. Some are striking down the statutes altogether. The high courts in Arkansas, Connecticut and Oklahoma have refused to grant visitation without proof that the child would be harmed otherwise. Connecticut requires grandparents to show they have a parentlike relationship with the child. In Illinois, grandparent visitation laws were held facially invalidated because they placed the parent on an equal footing with the party seeking visitation rights, contravening the presumption that parents act in the best interest of their children. Much of the state-level activity has been triggered by a 2000 U.S. Supreme Court ruling that invalidated the application of a Washington visitation statute. In a plurality opinion delivered by Justice Sandra Day O’Connor, the U.S. Supreme Court held in Troxel v. Granville, No. 99-138, that a Washington statute that allowed anybody to obtain visitation, as long as it was in the child’s best interest, was unconstitutional as applied. Following their son’s suicide, the Troxels wanted to continue seeing their two granddaughters. Tommie Granville, the girls’ mother, wanted to limit their visits to once a month. The Troxels sued for additional visitation. O’Connor wrote that the mother’s fundamental right to make child-rearing decisions had been violated because the law gave no special weight to her decision and, in this case, she had voluntarily allowed some visitation. The Court noted that it was not deciding whether due process required all nonparental visitation statutes to include a showing of harm to the child before granting visitation. Most state laws were not as broad as Washington’s, and nearly half the states allowed petitions for visitation only when the traditional, nuclear family was no longer intact due to events such as death or divorce. Nevertheless, the decision has had a wide impact. Some states now require grandparents to demonstrate a substantial relationship with the child, or to show that the child would be harmed if visitation were denied. The Illinois Supreme Court dealt a blow to grandparent visitation last April in Wickham v. Langman, Nos. 92048 and 92135. At issue were two sections of the law, one of which provided that grandparent visitation should be allowed in the best interests of the child if the parents were not living together or if they disagreed on whether to allow visitation. The other section provided that when “one parent is deceased, the surviving parent shall not interfere with the visitation rights of the grandparents.” ‘MICRO-MANAGING’ The court said the laws expose “the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micro-managing of the state. … [W]e can conceive no set of circumstances under which [these sections of the law] would be valid.” This facial invalidation of the visitation laws followed the court’s post- Troxel decision in 2000 that one of the provisions was unconstitutional as applied, in a case where divorced parents were united in their opposition to visitation from the paternal grandparents. Lulay v. Lulay, Nos. 87874 and 87896. Rep. Daniel J. Burke, D-Ill., said he originally supported the law. “But now I’m inclined to agree with the court about the parent’s ultimate right to control visitation,” he says. “During House committee hearings, we heard from a handful of people about very dramatic cases, often involving abusive parents. But now, I’m persuaded that there is no real urgency to legislate grandparent visitation. There are alternative systems in place. Grandparents can apply for custody when the parents are unfit — there’s no need to give grandparents exclusive rights. There has been no major societal uproar over the court’s reversal of the law.” However, Rep. Suzanne Bassi, R-Ill., who represents some of Chicago’s northwestern suburbs, still believes in the need for a valid grandparent visitation law. “Children think the whole world revolves around them,” she says. “When grandparents aren’t allowed to see the grandchildren because of a falling-out with the parents, children feel abandoned. The kids end up being the losers.” “Many people have fond memories of time spent with their grandparents,” says Professor Stephen G. Gilles of the Quinnipiac University School of Law, in a 2001 article in the University of Chicago Supreme Court Economic Review. However, he writes, this “overlooks the fact that grandparents typically get to choose the type and degree of involvement they will have with children. … [They] get to take the sweet without the bitter. It doesn’t follow that grandparents bear greater altruism toward their grandchildren than parents do toward their children.” In fact, says Professor Emily Buss of the University of Chicago Law School, grandparents tend to be very “single-minded” about what they want — such as visitation — whereas parents are in a better position to decide what should comprise a child’s 24-hour day. R. Richard Banks, a family law professor at Stanford Law School, said that even if grandparent visitation is appealing in theory, its actual application involves extremely detailed court involvement that may be very intrusive or impractical. “The court may require the parents to notify the grandparents of all recitals, sporting events, and parent-teacher conferences … nitty-gritty details, order after order,” Banks says. Agreeing, Catherine W. Smith, a partner at Seattle’s Edwards, Sieh, Smith & Goodfriend, who represented Jenifer Granville, says that visitation orders can interfere with parenting goals. Smith says many grandparents engage in “recreational litigation. Parents are too busy parenting to have advocacy groups” but grandparents have more time and money. “That’s a generalization that’s not necessarily true,” says Mark D. Olsen of Seattle’s Olsen & Olsen, the lawyer who represented the Troxels. “A lot of grandparents are on a fixed income.” While there may be occasional cases of meritless litigation, a lot of grandparents can’t even sue, he says. Buss argues that once a father has died, a mother who remarries has the right to allocate her children’s time to the new family and new grandparents. Olsen has a different perspective. Granville “had eight children from three different fathers,” he says. “With all those stepkids and children, she’d probably appreciate a little time off.” Speaking of parents’ rights, Olsen says, “People don’t own a child. There is a responsibility to a child to give him or her access to the people who support the child. A child is not a scarce resource, to be allocated. A child deserves an enriched environment. Children have rights, and we should respect that.” But Olsen adds that there should be guidelines and parameters to respect a parent’s decision, such as giving weight to the wishes of a parent and allowing grandparents to sue only after access has been denied. “Grandparent visitation is alive and well,” he says. ‘SPECIAL CIRCUMSTANCES’ “Courts have been striking statutes down as applied, and narrowing the circumstances under which visitation can be sought, but in most states, visitation is still possible under special circumstances,” says Wilmette, Ill.’s Jeff Atkinson, a former chair of the American Bar Association’s Child Custody Committee. “Only the minority view is striking down the laws altogether.” In Arkansas, a trial judge decided that a mother was generally a fit parent and unfit only in her decision to deny visitation from the paternal grandfather. But the state supreme court said last April that the visitation law was unconstitutional as applied, and that the state could not interfere without a compelling interest to do so, such as harm to the child or custodial unfitness. Linder v. Linder, No. 01-380. That holding was similar to other decisions being handed down across the country. “What Troxel basically said is that presumptive weight has to be given to a fit parent’s decision, and there must be a substantial relationship between the nonparent and the child,” says Linda H. Elrod, former chair of the American Bar Association Family Law Section and a family law professor at the Washburn University School of Law. “Courts differ over whether the appropriate standard to apply is ‘harm to the child’ or ‘best interest of the child.’ It’s not as easy to get visitation as it was before Troxel, but it’s still possible.” Thus, in Oklahoma, the state supreme court said a maternal grandmother should not have been granted visitation against the mother’s wishes when there was no showing of harm. “Because there are no allegations of harm, the issue of the children’s best interest was irrelevant,” the court said. Neal v. Nesvold, No. 93,670. But in Maine, the Supreme Judicial Court said visitation could be granted where the grandparents had functioned as parents and provided the children with years of care, so that cessation of contact could have a dramatic or traumatic effect on the children, giving the state a compelling interest in providing visitation. Rideout v. Riendeau, No. Sag-00-4. Similarly, the Connecticut Supreme Court said in 2002 that any third party seeking visitation had to establish standing by alleging that he or she had a parentlike relationship with the child, and that the child would be harmed if visitation were denied. Roth v. Weston, No. 16,565. Although it’s harder to get visitation as a nonparent, it’s now easier to be treated as a parent, Elrod notes. Thus, another way to approach the issue is to demonstrate a parentlike relationship with the child. For example, she says, the Rhode Island Supreme Court held in 2000 that the lesbian partner of a biological mother should be treated as a parent of the child because the biological mother had consented to the bond. Rubano v. DiCenzo, No. 97-604-A. “What’s important about Troxel is that the Court didn’t say the parent had an absolute right” to decide visitation issues, Elrod says. She adds that she didn’t think the Troxel plurality gave enough weight to the right of the child, and that children should have their own lawyers to represent their point of view. LITIGATION ALTERNATIVES But many scholars agree with Gilles that “the emotional costs of [intrafamily] litigation far outweigh its emotional benefits in the run of cases” and do not benefit a child who has to live with unhappy parents forced to follow a visitation order. Gilles suggests other techniques for optimizing grandparent visitation litigation, such as a bright-line rule providing that all grandparents are entitled to some minimum level of visitation. Under the rule, parents could deny visitation in excess of the statutory minimum without being subject to judicial review. Other litigation-discouragement techniques already implemented by some states include discretionary awards of attorney fees to the custodial parents and court-ordered mediation in visitation disputes, Gilles wrote.

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