January 10, 2011
GRANDPARENT VISITATION OVER A PARENT'S OBJECTION
By: Susan Price, Senior Attorney
You asked what legislation could be enacted to strengthen a grandparent's right to visit his or her grandchild over a parent's objection.
CGS § 46b-59 allows grandparents and third parties to petition for visitation under specified circumstances (see OLR Report 2009-R-0439.) Any change in this law would have to be consistent with a Connecticut Supreme Court ruling that carves out a very narrow exception for visits by such people over a fit parent's objection (Roth v. Weston, 259 Conn. 202 (2002)).
To pass the Roth test, the legislation would have to at least require a person petitioning for visitation to prove by clear and convincing evidence that (1) a parent-like relationship exists between the child and the person seeking visitation and (2) denial of visitation will cause real and significant harm to the child.
The Children's Committee raised a grandparent visitation bill last year (HB 5313) which apparently would pass the Roth test. However, the committee voted out a substitute bill that did not. That bill was referred to the Judiciary Committee, where it died.
CONNECTICUT SUPREME COURT RULING
In Roth v. Weston, a maternal grandmother and aunt petitioned under CGS § 46b-59 for visitation with children whose father had terminated it after the children's mother committed suicide. The relatives claimed that visitation was in the children's best interest, although they did not contend that the father was not a fit parent. In his response, the father presented reasons why he believed visitation was not in the children's best interest.
The trial court granted the petition but the Connecticut Supreme Court reversed. It ruled that CGS § 46b-59 would be unconstitutional unless it required any third party, including a grandparent or a great-grandparent, seeking visitation to make specific and good faith allegations that (1) a parent-like relationship exists between the child and the person seeking visitation and (2) denial of the visitation will cause real and significant harm to the child. That degree of harm requires more than a determination that visitation would be in the child's best interest. It must be a degree of harm analogous to a claim that the child is 'neglected, uncared-for or dependent' within the meaning of Connecticut's child abuse statutes.
Once these high jurisdictional hurdles are overcome, the petitioner must prove the allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements serve as constitutionally mandated safeguards against unwarranted intrusions into a parent's authority (Roth v. Weston, 259 Conn. 202, 234-235 (2001)).
Last year, the Children's Committee voted out a substitute bill on grandparent visitation rights. As initially introduced, the bill appeared to satisfy the Roth test. The substitute language, however, does not.
RAISED BILL 5313 (LCO 1452)
The bill originally raised by the Children's Committee in the 2010 session amends CGS § 46b-59 and appears to meet the Supreme Court standards. The relevant language is:
In the case of an application for visitation by a grandparent, the court shall grant an order if the applicant demonstrates by clear and convincing evidence that (1) the parent has been absent for a significant period of time; (2) the applicant's relationship with the child has been parental in nature for a substantial period of time; (3) the child will suffer real and substantial harm or neglect if visitation is not granted; and (4) visitation is in the best interests of the child and the state.
This language is even more narrowly drawn than that mandated by Roth, as Roth does not require those seeking visitation to prove parental absence.
Substitute Bill 5313
The Children's Committee voted out a substitute bill. The relevant language reads as follows:
In the case of an application for visitation by a grandparent, the court shall grant an order if the applicant demonstrates by clear and convincing evidence that visitation is in the best interests of the child and at least one of the following: (1) The parent, who is the child of the grandparent, has been absent for a significant period of time; (2) the applicant's relationship with the child has been parental in nature for a significant period of time; or (3) the child will suffer real and substantial harm or neglect if visitation is not granted.
By requiring that the petition prove only one element by clear and convincing evidence, the substitute language appears to be unconstitutional because, under Roth, the applicant must prove both elements.