December 30, 2009
By: Soncia Coleman, Associate Legislative Attorney
You asked several questions regarding grandparents' rights to petition the court for visitation with their grandchildren. We treat each of these questions separately below.
1. Are Washington and Connecticut the only states that do not allow grandparents to have standing to seek visitation with their grandchildren?
Washington's grandparent visitation statute has been found to be unconstitutional and invalid. Connecticut law allows grandparents, and other interested third-parties, to petition for visitation in certain circumstances (CGS § 46b-59). Other states also limit grandparents' ability to petition for visitation. For example, many states only allow grandparent's to petition for visitation if the family is not intact (i.e., upon the death of a parent or when parents are divorced, separated, or never married) or during actual separation or divorce proceedings.
On June 5, 2000, the U.S. Supreme Court upheld a Washington Supreme Court decision that the state's grandparents' rights statute unconstitutionally infringed on the fundamental right of parents to rear their children. The U.S. Supreme Court held that the statute was overbroad and, as applied to the mother in Troxel v. Granville, 120 S. CT. 2054 (2000), unconstitutionally deprived her of the fundamental right to make decisions concerning the care, custody, and control of her children. The Court based its conclusion on three factors: (1) the fact that the Troxels did not allege, and no court found, that Granville was an unfit parent, (2) the court gave no special weight to Granville's determination of her daughters' best interest, and (3) there was no allegation that Granville ever sought to cut off visitation entirely.
In the wake of the Troxel decision, many states had to reconsider their statutes concerning grandparent/third-party visitation. Washington amended its statute. However, the Washington Supreme Court found the amended statute unconstitutional. Therefore, there appears to be no specific statute under which a grandparent could seek visitation.
Connecticut's visitation statute applies to all interested third parties, not just grandparents. Under this statute, grandparents can ask the Superior Court to grant them visitation. Like the original Washington statute, Connecticut's statute requires the court to make its decision based on the child's best interests, giving consideration to the child's wishes if he or she is old enough and capable of forming an intelligent opinion (CGS § 46b-59).
Rather than declaring the statute unconstitutional in light of Troxel, the Connecticut Supreme Court applied a “judicial gloss” to the statute by imposing additional requirements. In Roth v. Roth, 259 Conn. 202 (2002), the court noted that implicit in the statute is a rebuttable presumption that visitation that is opposed by a fit parent is not in a child's best interest. The court established the following requirements for the court to have jurisdiction over a petition:
1. it must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship and
2. it must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child, which requires more than a determination that visitation would be in the child's best interest.
Next, once these requirements are met, the petitioner must prove the allegations by clear and convincing evidence. The Court found that these requirements “serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent's authority.”
2. Could a bill provide standing in other situations?
Connecticut law already provides standing for grandparents seeking visitation in limited circumstances. The legislature can amend the applicable statute. However, any changes that do not conform to the court's ruling could be found unconstitutional.
3. What is the law on grandparent visitation in neighboring states?
Grandparents in Massachusetts can petition for visitation if the child's parents are divorced or separated, if a parent is deceased, or if the child was born out of wedlock but paternity has been established (for paternal grandparents). The statute allows the court to grant visitation if it finds that it is in the child's best interest (Mass. Gen. Laws Ch.119, § 39D).
However, in light of the Troxel decision, Massachusetts' highest court has recognized that the use of the “best interest of the child” standard in the context of grandparent visitation, left unspecified, cannot survive a due process challenge. The court found that a parent's decision must be given “presumptive validity.” Further “to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child's health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child. In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm.” See Blixt v. Blixt, 437 Mass. 649 (2002).
New York allows grandparents to seek visitation when (1) one or both of the child's parents is deceased or (2) where circumstances show that conditions exist which equity would see fit to intervene. The court can grant visitation if it is within the best interests of the child (NY Dom. Rel. Law § 72).
New York's highest court upheld this statute as constitutional in 2007 (E.S. v. P.D., 8 N.Y.3d 150). In upholding the statute, the court distinguished the New York statute from the overly broad statute in Troxel. The court also found that, while the statute does not specifically mention the wishes of a “fit parent,” it is interpreted to give weight to the parent's decision.
Grandparents can petition for visitation with their grandchildren in Rhode Island family court. In order to grant visitation, the court must find that:
1. it is in the best interest of the grandchild that the petitioner is granted visitation rights with the grandchild;
2. the petitioner is a fit and proper person to have visitation rights with the grandchild;
3. the petitioner has repeatedly attempted to visit his or her grandchild during the 90 days immediately preceding the date the petition was filed and was not allowed to visit the grandchild during that period as a direct result of the actions of either, or both, parents of the grandchild;
4. court intervention is the only way the petitioner is able to visit his or her grandchild; and
5. the petitioner, by clear and convincing evidence, has successfully rebutted the presumption that the parent's decision to refuse the grandparent visitation with the grandchild was reasonable.
In addition to this general provision, the law also specifically allows grandparents to petition for visitation if the parent is deceased or divorced.
(R.I. Gen. Laws § 15-5-24.3)