Until as recently as 40 years ago, the legal concept of grandparent visitation rights did not exist. This is because parents have a fundamental right under the U.S. Constitution to make decisions regarding the upbringing of their children.
There are a number of reasons why grandparents might be denied visitation by family members, including a rift or estrangement within the family, divorce, death, adoption, incarceration, abuse, substance abuse, or chronic problems. In some cases, there may be actual safety issues for the grandchild. Communication problems, or control or boundary issues, can also be the cause for disallowing communication. In other cases, grandparents have been left to raise the grandchild, sometimes for years, but later find themselves confronted by the return of a parent seeking to reclaim their rights to the child.
Whatever the reasons, these life events can cause grandchildren to experience a sudden break and extended separation from a grandparent with whom they may have a strong bond, causing long-term damage to the child.
Several States sought to address the concerns these life events raise through statutes, applying a best interests of the child test to establish statutory visitation rights for grandparents, but with two different approaches being taken:
1. Restrictive Visitation Statutes, under which grandparents can seek visitation rights if the parents are divorced or if one or both parents are deceased.
2. Permissive Visitation Statutes, under which grandparents can request visitation rights even if both parents are still married and still alive.
However, as these State statutes became more commonplace, their constitutionality came under attack, leading to a 2000 United States Supreme Court Ruling which found such statutes could, in fact, be unconstitutional and thus unenforceable. Specifically, the U.S. Supreme Court ruled in Troxel v. Granville, that a Washington State statute was unconstitutional as written because it allowed a judge to substitute and/or overturn a parent’s decision regarding denial of visitation with a grandchild where the parent was also found to be perfectly fit to make such a decision. The Supreme Court held that parents have a fundamental right under the constitution to make the decision as to visitation between a grandparent and a grandchild absent a finding of unfitness on the part of the parent.
Because of the legal complexities surrounding grandparent’s rights to visitation, it is often best to try to mediate these issues when possible between parents and grandparents with the help of an experienced attorney-mediator. Through this process, a neutral third party can assist in creating a legally-binding agreement for all parties. If however, a satisfactory agreement cannot be reached, an experienced family law attorney should be employed to assist grandparents with preparing the most persuasive court pleadings possible in order to address why their specific case warrants the granting of visitation rights with their grandchildren.
Contact Your Attorney
If you have questions about grandparent rights, or wish to petition for rights in your own case here in Northern Virginia, it is good to have an experienced attorney by your side to walk you through the process. At the Law Office of Patricia E. Tichenor, P.L.L.C., Attorneys Patricia Tichenor and Camellia Safi specialize in all aspects of family law. Please contact us today.