Grandparent Visitation: a Right without a Remedy?

written by Jim Duzak |

Millions of boomers are grandparents , and millions more look forward to the day when they will join the club. Most grandparents seem to love their role so much that their biggest complaint is that they don’t see their grandchildren often enough. In fact, it’s not unheard-of for younger retirees in places like Arizona and Florida to move back North after a few years because they miss the close contact with their children and grandchildren .In many families, there’s an unwritten agreement that the various grandparents are welcome—even encouraged—to see the grandchildren as often as possible, provided that the visits aren’t disruptive to the schedules of the grandchildren and their parents, or that the grandparents aren’t undermining established child-rearing practices (beyond the obligatory indulgences). But in a growing number of families, death, divorce, cultural or religious differences, or just plain bad feelings have caused parents in the “middle” generation to deny visitation to the grandparents .

For example, if a young father dies unexpectedly, his parents may soon discover that his widow never really liked them that much, and that she doesn’t want them seeing her kids as often as when her husband was alive (or maybe not at all). Or after a nasty divorce involving allegations of drug abuse on the mother’s part, the father may gain legal custody of the kids and may inform the mother’s parents that “their side of the family” is not welcome anymore. Or the middle-generation parents may convert to a religion that is so radically different from that of the grandparents that they fear that future visits will be a religious tug-of-war.

In response to such scenarios, all fifty states enacted what are generally referred to as grandparent-visitation statutes (although each one was different, and some extended the reach of the statutory protection to aunts, uncles, and even to non-relatives who could demonstrate a legitimate interest). The broadest of these statutes allowed grandparents to petition the court for guaranteed visitation even when it was their own son or daughter who was denying it. But most statutes addressed only cases triggered by death, divorce, or lengthy separation: where, in other words, it was the ex-daughter in law, or ex-son in law, who was saying no to visitation.

These were well-meaning laws, but for the most part they have fallen short of their promise. The Washington State statute—one that allowed just about anyone to petition for visitation—was ruled unconstitutional by the U.S. Supreme Court in 2000, which described the law as “breathtakingly broad”, and which said that it infringed upon parental rights. Since that decision, several state supreme courts have put such a restrictive interpretation on their own statutes that, for all practical purposes, they’ve declared them unconstitutional. Other states have ame...

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