Grandparent Visitation statutes are commonly misunderstood by the public. Grandparent visitation cases are not about vindictive parents who refuse to allow grandparents any access to their grandchildren. Most parents welcome the grandparents to visit in their home, but are uncomfortable about the child being removed from it for various reasons. Grandparent visitation cases are also not about parents who are trying to hide signs of abuse. Grandparent visitation cases are about grandparents who demand their "right" to remove a child from its home for unsupervised and extended visitation against the wishes of the child's fit, functioning parents.

These statutes attempt to keep a child from losing a "psychological parent" or any other person who cared for them in the absence or presence of their parents. The initial grandparent visitation statutes were written because "grandparents thought that their hippie children were behaving badly and raising their children in a disorderly way", said Carol Sanger. Grandparent and other third party visitation statutes are revised in response to grandparents who are forced to care for their children due to the death or disappearance of their grandchilds' parents. When divorce laws changed in the 70's, statutes were written to allow grandparents the right to petition the court for visitation in the case of death or divorce of the child's parent. Grandparents were (and still are) automatically presumed to be a source of unconditional love, assistance and stability to their grandchildren, but studies show that only 25% of children of divorce felt that grandparents came to their aid emotionally. (Wallerstein & Kelly, 1980) However in the 1980's, AARP and other Grandparent lobby organizations, took advantage of state statutes that granted them immediate "rights" to their grandchildren and power over the lives of their own children and their spouses.

"Grandparent visitation legislation has arisen quite differently from most other domestic relations law, which generally has codified social change which has already occurred. In the case of grandparent visitation, the change is heralded by legislation which is the product of intense political activity." In other words, the AARP, in response to the demands of the Baby Boomers, heavily lobbied for the advancement of grandparent rights, and won. AARP's position in the matter is that they lobby for everyone who will be a grandparent, not just the Boomer generation. The invasion of the intact family, coupled with the inconsistency of the laws from state to state, caught the attention of the Supreme Court and it responded.

In September, the United States Supreme Court granted certiorari in the matter of grandparent visitation. In re custody of Sara Skyanne Smith, In re Visitation Rights with Justin Ross Wolcott and In re the Visitation of Natalie Anne Troxel and Isabella Rose Troxel are the cases under review. The issue before the Supreme Court is whether any third party has the right to visitation of a child over his fit parents objection and if so, under what circumstances.

The Supreme Court has consistently taken a hands-off approach in family matters and left that nightmare to state courts. States that advocate non-intervention in the family cite several Supreme Court Cases (See appendix A) that question the strong arm of the law and whether that arm belongs in family life. Courts must weigh three factors before rendering a decision in these matters. The conclusion of the court is based on the weighing of these three areas: family integrity (the right to "minimal" intrusion vs. no intrusion), the appropriate standard of constitutional review for a grandparent visitation statute (the proof that parental decisions are harming the child or Best Interests standard), and the use of state power.

Courts in favor of GP statutes believe that, "the intrusion occasioned by a grandparent visitation suit is not a constitutionally cognizable infringement of the family integrity." Pro GP Courts also believe that grandparent visitation does not "unduly burden" the constitutional right to familial autonomy. But it does. Often, grandparents are awarded visitation that compares to that of a non-custodial parent, which extends to weekends, every other holiday (or half of every holiday), and vacations. Parents offer grandparents the ability to share the holiday with them, but grandparents insist on taking the child elsewhere and away from its parents. Grandparents ignore the customary schedule of the child in favor of their own plans. Even non-custodial parents are directed to take the child to his or her activities to normalize the child's life. Some judges deliver opinions that imply that grandparents may have more rights than the parents. Judge Daughtrey opined in the trial court of Hawk v. Hawk, that the grandparents "don't have to answer to anybody when they have the children. They can take the children to visit friends of theirs, they can have friends in to visit with the children. They can take the children anywhere they please…because the court is fully convinced that they would not do anything or take these children anywhere that would adversely affect these children." According to this court, parents don't even have the right to ask where their children will be. The Hawk grandparents frequently gave access of the children to their uncle who was a convicted drug offender. The parents disapproved of the grandparents discipline methods. The grandfather cursed the child's mother in front of the child and the grandfather frequently criticized his son for not standing up to his wife "as a man". The parents tried on several occasions to reconcile with their parents, but due to the aforementioned problems were unsuccessful in their attempts. The grandfather also fired his son from his job. The court chose to ignore the hostile behavior of the grandfather and granted him (and his wife) extensive visitation with the grandchildren. In this case, as in most, grandparents actually contribute to problems in the parent's marriage. If these problems escalate to divorce, grandparents are awarded more visitation time with the grandchildren. Where parents enjoy autonomy, they can simply avoid the abusive and negligent actions of their parents and live elsewhere in peace with their children.

Grandparent Rights groups play on the public perception of grandparents (nice old people who bake cookies and will take the kid to the zoo) to get legislation passed. It is estimated that 99% of grandparents get all the time they want with their grandchildren. Most grandparents are warm, loving adults who bring joy to their children's lives and the lives of their grandchildren and that is the image these activists play on. Most of the cases involve grandparents who do serious wrongs to either the parents or the grandchildren. In King v. King, the grandparents threw their son and his family into the streets because of a family disagreement. Pro grandparent courts routinely minimize the concerns of the parents, ignore the animosity between the adults and believe that "there is no reason that a petty (or insignificant)dispute between a father and son should be allowed to deprive a grandparent and grandchild of the unique relationship that ordinarily exists between those individuals." (King v. King) The bias in favor of the grandparents is evident in this case and others. Although Hawk v. Hawk was later overturned, the comments made by the trial court are reflective of the bias toward grandparent visitation.

When parents claim the GP's are a danger to their children because of their own accounts of molestation, or other abuse, or even health problems, they are not taken seriously. "The invasion of the family home, the coerced removal of the child from the parent's custody for days or weeks at a time and on repeated occasions, is a greater infringement than impacts deemed excessive in the seminal family rights cases." There is no greater invasion of the family than the removal of a child from its home.

The second presumption of Pro GP's courts is that court ordered visitation serves "the best interest of the child" and that "unless parents can demonstrate that their child is in danger, court ordered visitation is in the best interest of the child." Pro GP Courts presume that the development of a relationship between a grandparent and grandchild is beneficial (based on the judge's own beliefs) and that "it is not unreasonable for the state to say that the development of a loving relationship between family members is desirable." Many grandparents claim that they are fighting for the children, but Judge Lucas (in the King case) gives what is probably the most honest defense of grandparent rights. "The grandparent can be invigorated by exposure to youth, can gain an insight into our changing society, and can avoid the loneliness which is so often a part of an aging parent's life." Grandparent visitation statutes look into the future and are designed to guarantee that no grandparent (even the abusive, hostile ones) will be lonely. Grandparent visitation statutes are clearly in the best interests of the grandparents, but what about the child?

The Best Interests Standard doesn't take into account what the actual best interests of a child really are. Papalia and Olds say there are stressful life events that affect a child's health and increases his susceptibility to illness and injury. (See Appendix B) Among the events are: serious or prolonged disagreement between parents and their own parents or in-laws, serious financial problems of parents, and court case involving mother or father. Forced grandparent visitation puts into play these additional stress factors that negatively impact children, especially children already faced with family disruption. Derdeyn⁶ said, "At times when the child's need for stability and security and for being certain upon whom he can depend are very high, such legal initiatives by grandparents are likely only to add to the child's already excessive emotional turmoil, if for no more reason than the initiation of such litigation being seen as a threat to the integrity and economy of the family by the parent or parents." Grandparents claim that they bestow values on their children. Cherlin and Furstenberg disagree and claim that parents mediate the values the children learn. In other words, the parents determine which values they want to pass on, and if the parents agree with the values of the grandparent, the grandchild will learn them.

Pro GP Courts such as in King v. King, claim they will issue any orders to enforce the decree if it determines it is in the best interest of the child to do so. What was acknowledged in the minority opinion by Justice Lambert in the Supreme Court, was that the grandfather placed "great demands on his son, ordered the son to move from the premises, was overbearing and intruded with impunity upon respondents' family life demonstrating total indifference to their wishes." The trial court also ordered the parents to give their child to the live-in girlfriend of the grandfather for transportation purposes. Do we now believe that parents should have to accommodate their schedule around that of a non-relative for the benefit of a grandparent? The more disturbing issue, does this allow the "creation of a bond" between each paramour and the child, so that disruption of the grandparent's residence allows another petition for visitation of another party's rights. The "preservation of an existing bond" and the "harm done to the child in the destruction of this bond" is a major battle cry of all third parties that demand visitation.

Pro grandparent courts believe strongly in the use of state power to enforce visitation, but it contradicts the "best interests" provision. Judges who believe in Grandparent visitation place the parent in contempt of court and jail them until they comply. Who could logically argue that the filing of contempt charges and the subsequent incarceration of the child's parent would ever be in the Best Interests of any child? Who could argue that unless mom gives Grandmom what she wants, the child should be parentless as well? In Olson-Kelm v. Farr grandma took her granddaughter to a bar, and left her in the corner playing with pull-tabs while she sat at the bar drinking. When Olson-Kelm refused to comply after this incident, Farr watched as her daughter was thrown in jail. The grandmother, Ann Farr, said she was hoping her daughter would not have to go to jail, but if it was necessary, it was necessary to provide her with her God-given and legal rights.

Courts that are unfavorable to GP visitation statutes believe the Court's protection of parental rights is inherent in the Federal Constitution. Pro-Parent Courts believe the state's parens patriae power should only be used by the Court to protect minors from harm when the minors lack fit parents or proper guardians of their own. Parental rights are guaranteed in the Ninth and Fourteenth Amendments of the Constitution of the United States and pro parent courts correctly decide that in the absence of harm to the child, the court does not belong involved in private family decisions. The courts that support parents know that no constitutional rights exist that supports a grandparent's invasion into his grandchild's life. Justice Lambert concludes that these statutes might extend to even more family members or friends who claim devotion to the child and the result is "chaos for parents as they attempt to rear their children." Children born today will have perhaps 3 or 4 generations of grandparents, and do we as a society respond by giving each generation the right to demand that children be removed from the home for each grandparents benefit?

Only parents have the obligation to maintain, protect and educate these children. Children owe their parents obedience and the benefits of their labor. Parents owe children appropriate guidance and education. Since parents protect the child during its infancy, the child owes its parents protection in old age. Grandparents lack, and are not asking for, the obligations and duties of parents. Because grandchildren do not benefit directly from grandparents, grandparents have no standing in the decision making process as it relates to the care, custody and control of their grandchildren.

Grandparent Visitation Rights are problematic. Grandparent visitation allows grandparents the right to bully their children into intrusive, unwanted, extensive visitation. While the need to address the best interests of children is paramount in society, we cannot ignore or support any legislation that minimizes or negates the primary parent-child bond or forces a child to see that his parent is powerless. Most people would agree that the removal of a parent from the home is traumatic to a child and is rarely in the child's best interests. The parents being taken to court by the grandparents are NOT criminals. However, judges incarcerate parents when they refuse to hand over their child to a third party. In Grandparent Visitation, the "cure" is worse than the illness. As Sarah Jean Olson said, "My grandma says she's looking into my best interests, and she turns around and threw my mother in jail. That's not really in my best interest." Courtrooms are not the place for third parties (judges) to work their way through family problems that are years in the making. Another false assumption made by the courts is that once forced visitation is established, everything will be okay and the families will put aside their differences. In reality, grandparents who sue do not get what they want whether it is reconciliation with their own child, or a close relationship with their grandchild. The grandchildren become hostile towards the grandparents for many reasons. First, the grandparents refuse to take them where they need or want to be on their visitation time. Today's children like to play sports and be active. Not being available due to grandparent visitation award, makes it difficult for children to participate in events with their friends or family. Second, most children want to be in their own homes in their own beds and grandparents can force them to sleep elsewhere, sometimes for weeks at a time. Third, children suffer from the financial devastation of the lawsuit. Parents are forced to spend thousands of dollars for the psychological evaluations that are ordered, not to mention attorney and court fees. Fourth, some grandparents become so caught up in their contempt for the decisions of their children that they verbally or physically attack the child's parents in the presence of the child. Time alone with the child is time spent telling the child the "truth" about his parents. Children hate bullies. Fifth, some grandparents when they lose their own child to death, take the child to the cemetery to visit their father or mothers grave, and then review their child's photo albums. Children are incapable and uncomfortable being the emotional support for any adult. And finally, when the child is vocal about not wanting to see the grandparent, the grandparent retaliates and calls the child a liar. "One reason why I hate her is because every time I try to speak up and tell the truth, she tells me I'm lying", says Sarah Olsen.

The only way to elicit the mending of family problems is to encourage grandparents to listen to and help their children. Grandparents need to "relinquish the role of parent with regard to their children. Their relinquishing parental status with regard to their children and facilitating their children's developing their own autonomy is the natural course of the family life cycle and is part of the process by which familial boundaries are formed." According to Derdeyn, it is the grandparents who are the problem. The solution is to "fix" the grandparent, not render the parent impotent.

If grandparents are to be established in the position of parent, they should be compelled to contribute to the financial well-being of the children. Instead of the grandparents wasting their money on court intervention, a more altruistic action might be to take the money and place it in an account for their grandchild's education. This may instill gratitude in the parent's heart and it may heal wounds.

Another remedy to family conflict is to convince the grandparents to put the child's needs and activities first. This would reduce the hostility their grandchildren feel toward them and would help already stressed parents. This would also increase the pleasantness of each encounter between grandparent and grandchild, and the child would perceive the grandparent as a person who genuinely cares about them.

Another suggestion is to never allow a child be removed from the home unless the parent gives consent. Parents should not have to give their children to people who may present a danger to their child. Parents should never have to spend Christmas without their children, and children should never have to leave their parents and their home to spend time with the grandparents and their friends. To order this is cruel to both the child and the parent. Grandparents should also have to cope with the requirement that they not drive with the child, if that is what the parent wants. Many parents are concerned about driving because of the medications the grandparents take or the use of alcohol by the grandparents. If grandparents insist in taking parents to court, the financial burden should be entirely on them. After all, taking money out of the child's home is not in the best interests of the child.

Grandparent visitation does not cure family ills. It creates additional ones. "It is clear from the psychological literature that a lawsuit over visitation rights, with its accompanying intrusions by psychological experts and lawyers, and its inevitable disruption of the nuclear family, often creates extreme anxiety and dislocation for a child." Therefore, let parents take care of their children and let grandparents visit and enjoy them when and if the parents agree.

Appendix A

Cases that Support Privacy Rights

1. Meyer v. Nebraska, 262 U.S. (1923) stated that "while this court has not attempted to define with exactness the liberty thus guaranteed (by the Fourteenth Amendment),…without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to….marry, establish a home and bring up children…and to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
2. Prince v. Massachusetts, 321 U.S. (1944), acknowledged "the existence of a private realm of family life which the State cannot enter." The Court also stated that whether the parents were married, separated or divorced, they had a constitutional right to privacy. (Most later cases exclude divorced, widowed, separated parents from this right to privacy with consideration given only to intact families.) They went on to say that "Constitutional interpretation has consistently recognized that the parents claim to authority in their own household to direct the upbringing of their children is basic in the structure of our society and believed that it is cardinal with the rest of society that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparations for obligations the state can neither supply nor hinder."
3. Stanley v. Illinois, 405 U.S. (1972), said that a finding of parental neglect was required before stripping a father of his parental rights. The State attempted to remove Stanley's children from the home because he never married the children's mother, therefore they were not legal children.
4. Wisconsin v. Yoder, (1972), stated that if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens, then the court could intervene.
5. Moore v. City of East Cleveland, 431 U.S. (1977) held unconstitutional a housing ordinance that limited the definition of a family. The family has a right to define its members, and insisted that the Constitution protects the sanctity of the family…"
6. Parham v. J.R., 442 U.S. 584 (1979) upheld the parents authority to decide what's best for the child because state officials nor federal courts are equipped to review such decisions. They said that children were not mere creatures of the state and asserted that parents generally "have the right coupled with the high duty to recognize and prepare their children for additional obligations." The Court felt confident that natural bonds of affection caused parents to act in the best interest of their children. Even if the parents were not working in the child's best interest, it did not transfer authority of the children to an agency or officer of the state.

Appendix B

Stress and Health

Table 8-3