February 7, 2011
GRANDPARENTS' VISITATION RIGHTS
By: Mary M. Janicki, Research Analyst
You asked for a comparison of Connecticut's law on grandparents' right to visit their grandchildren with the laws on that subject in other states.
All 50 states have enacted grandparent visitation statutes. They specify circumstances under which grandparents have standing to petition for court-ordered visitation. Because the laws affect fundamental parental rights, courts have subjected them to the strict scrutiny standard and have applied the due process and equal protection requirements of the Fourteenth Amendment. In the seminal case on grandparents' visitation rights decided in 2000, Troxel v. Granville, the U.S. Supreme Court found the State of Washington's grandparent visitation statute unconstitutional and invalid. The Court ruled that the law's interference with the parent's right to make decisions concerning the care, custody, and control of her daughters violated the Due Process Clause.
Connecticut law 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. In Connecticut, grandparents and other interested third-parties are permitted to petition for visitation in certain circumstances. The Connecticut Supreme Court found that the law does not expressly apply the constitutional limitations necessary under Troxel. But instead of invalidating the statute, it established high jurisdictional requirements that the trial court must use to consider a petition. The ruling then required the petitioner to prove allegations by clear and convincing evidence.
State laws on the topic were enacted around the country between 1966 and 1986. Some have been amended in attempts to address the constitutional concerns raised by Troxel. Others have been the subject of challenges, producing case law and judicial interpretations on grandparents' visitation rights in each particular state.
LEGAL ISSUES AND STANDARDS
State statutes on the subject of third party visitation must address the U.S. Supreme Court's constitutional concerns that they afford due process to a fit parent's decision to deny visitation. Under Troxel (530 U.S. 57), state laws must give deference to a fit parent's decision to deny visitation; put the burden of proof on the grandparent; and assure that the burden on the grandparent does not violate a fit parent's due process rights. But the Court did not define a standard for the deference state laws and courts must give to a parent's decision on this matter. As a result, state laws reflect a variety of definitions, standards, and thresholds that state courts apply to grandparent visitation cases.
State laws incorporate or address a variety of issues in their grandparent visitation provisions, such as:
● the best interests of the child
● the requirement to show harm to the child if visitation is denied
● familial status (e.g., nuclear or non-intact family situations)
● the fitness of the parent as well as that of the petitioning grandparent
● the requirement for grandparents to rebut the presumption of a finding for the parent
● evidentiary standards (using a preponderance of the evidence or a clear and convincing standard)
● the existence of a substantial relationship between the child and grandparent
● the role of a guardian ad litem in any proceeding
Grandparent visitation laws across the country are varied and subject to wide-ranging trial court interpretations and appellate court decisions.
The Washington law that was the subject of the U.S. Supreme Court ruling permitted any person to petition to superior court for visitation rights at any time (emphasis added) and gave the state's superior court authority to grant such rights when visitation serves the best interest of the child (Wash. Rev. Code § 26.10.160(3)). The state's Superior Court granted the grandparents a visitation decree. The Washington Court of Appeals reversed the lower court and dismissed the petition. The Washington Supreme Court agreed with the Court of Appeals' conclusion.
On June 5, 2000, the U.S. Supreme Court upheld the Washington Supreme Court decision that the state's grandparents' visitation 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 Ms. Granville 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 in that state.
Grandparents in California can be awarded reasonable visitation rights (1) in a divorce, annulment, separation proceeding or a custody hearing (Cal. Fam. Code § 3103) or (2) on their petition to the court (§ 3104). In the first instance, the court must determine that such visitation is in the best interest of the child with a rebuttable presumption that, if the parents agree that the grandparent should not be allowed visitation rights, it is not in the child's best interests.
In the case of a petition, one can be filed only (1) when the natural or adoptive parents are unmarried or living separately and apart on a permanent or indefinite basis, (2) if one parent has been absent for at least one month and his or her whereabouts are unknown, (3) if one of the parents joins in the grandparents' petition, (4) if the child does not live with either parent, or (5) if the child has been adopted by a stepparent. The law creates a rebuttable presumption that a grandparent's visitation is not in the child's best interest if the natural or adoptive parents agree that the grandparent should not have visitation rights or if the custodial parent objects.
Visitation rights can be awarded pursuant to a petition only if the court (1) finds a preexisting relationship between the grandparent and child indicating that visitation is in the child's best interest and (2) balances the interest of the child in having visits with the grandparent against the parents' right to exercise their parental authority.
Connecticut law provides standing for grandparents seeking visitation in limited circumstances.
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. Weston, (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 a 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.”
The legislature can amend the applicable statute described above; however, any changes that do not conform to the Court's ruling could be found unconstitutional.
Florida's law on grandparents' visitation rights has been held unconstitutional on due process grounds (Belair v. Drew, 776 So. 2d 1105 Fla. Dist. Ct. App. (2001)). Subsequently, the legislature adopted and applied a dispute resolution mechanism as part of its Domestic Relations Act which states:
It shall be the public policy of this state that families resolve differences over grandparent visitation within the family. It shall be the further public policy of this state that when families are unable to resolve differences relating to grandparent visitation that the family participate in any formal or informal mediation services that may be available (Fla. Stat. Ann. § 752.015)
The law requires a court to award reasonable visitation rights to grandparents if the parents are divorced, the child was born out of wedlock, or on the grounds of desertion by a parent (Fla. Stat. Ann. § 752.01 (2009)).
Maine's Grandparents Visitation Act (Me. Rev. Stat. Ann. Tit. 19-A, §§ 1801-1805) allows the grandparent of a minor child to petition the court for “reasonable” visitation rights when (1) at least one of the child's parents or legal guardians has died or (2) an existing relationship exists between the child and grandparent or, if not, a sufficient effort to
establish one has been made. Under the law's procedures, the grandparent must file a petition and the parent or legal guardian may file an affidavit in response.
The court then considers both the petition and affidavit and, if it rules in the affirmative, appoints a guardian ad litem and holds a hearing on the petition and considers objections of the parents or guardians and the guardian ad litem's report. The court makes a decision on the petition based on the best interest of the child, for which factors are stipulated in the statutes. It may award visitation if it is in the best interest of the child and “would not significantly interfere with any parent-child relationship or with the parent's rightful authority over the child.”
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 doing so 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.” (Blixt v. Blixt, 437 Mass. 649 (2002)).
New Hampshire law gives grandparents the right to petition for visitation rights unless access to the minor grandchild has been restricted for any reason before or at the time of divorce, death, relinquishment, or termination of parental rights. The court must consider the following in making its order:
1. the best interest of the child,
2. whether the visitation would interfere with any parent-child relationship or a parent's authority over the child,
3. the nature of the relationship between the grandparent and child,
4. the nature of the relationship between the grandparent and the child's parent and its effect on the child,
5. any circumstances that resulted in the absence of a nuclear family,
6. any guardian ad litem's recommendation regarding visitation,
7. the child's preference or wishes, and
8. any other factors the court finds appropriate or relevant to the visitation petition (N.H. Rev. Stat. Ann. § 461-A:13).
New Hampshire's prior law on the issue was repealed in 2005. It conferred standing to seek visitation on grandparents whenever a grandchild's nuclear family was the subject of divorce, death, relinquishment, or termination of parental rights. A court had ruled that the law could not permit intrusion on a parent's authority unless the grandparent's visitation petition set forth sufficient facts to warrant a grant of visitation under statutory criteria (O'Brien v. O'Brien, 141 N.H. 435, 684 A.2d 1352 (1996)).
In New Jersey, a grandparent may apply to Superior Court for a visitation order. The applicant must prove by a preponderance of evidence that visitation is in the best interest of the child. Familial status is not a factor in making an application or determination (N.J. Stat. Ann. § 9:2-7.1)
New York allows grandparents to seek visitation when (1) one or both of the child's parents is deceased or (2) 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. Notice of the petition must go to both parents and the child. 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 §§ 15-5-24.1 – 15-5-24.3).