Grandparents Can't Trump Parental Rights

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Sept. 12, National Grandparents
, many grandfathers and grandmothers will stare at photographs
of grandchildren they cannot see or hug or contact. Too often, grandparents
of non-custodial parents are erased from the family tree after divorce.

because of such wrenching situations, the idea of “grandparent
has gained traction.

what of parental rights? And should another layer of law be added
to family relationships?

the definition of family has changed, the role of grandparents has
shifted with it. Sometimes grandparents are excluded from children’s
lives, as frequently occurs in contested divorces.

other times, however, grandparents are forced to assume uninvited
responsibility, such as the surrogate
of grandchildren whose natural parents are absent
due to drug use, imprisonment or abandonment.

to the 2000 U.S. Census data,
933,408 grandparents had been responsible for the basic needs of
their grandchildren for at least five years.

the issues of custody and visitation arise due to exclusion or to
increased responsibility, it is only natural for grandparents to
want to define their status in relation to grandchildren.

50 states have attempted
such a definition
, with significant variations in the law. For
example, in Colorado, the legal rights of natural grandparents terminate
when a child is adopted by a non-relative. In California, natural
grandparents may still claim visitation rights.

2000, the U.S. Supreme Court added its prevailing opinion in the
landmark case of Troxel
v. Granville
, which concerned grandparent rights in Washington
State. The Supreme Court concluded that parents who provide adequate
care have a Constitutional right to decide with whom their children

decision seems to cancel out grandparent rights in the presence
of objections from a responsible parent.

the aftermath
of Troxel
and with wide disagreement between state laws, the
issue of grandparent rights is currently in flux with no clear outcome.
For example, on Aug. 23, the California Supreme Court ruled
in favor
of a grandparent’s right to seek court-ordered visitation
over a parent’s objections. The Court found that Troxel did not
apply to the wording of its state law on the matter.

another appeal to U.S. Supreme Court possible, this is the moment
to ask, “What rights should grandparents possess?”

cases in which grandparents have assumed custody for an extended
period are the easiest to address. Often, the court recognizes –
and reasonably so – that they have become “psychological parents.”
That is, they are recognized as now playing a significant role in
a child’s “best interest,” even if they have no legal standing.
Such grandparents are often accorded legal rights with regard to
the child. With responsibilities come rights.

what rights do non-custodial grandparents have when a parent objects?

no pleasure, I conclude that such rights do not exist. Ask yourself:
If grandparents cannot claim the legal right to be included in the
life of a son or daughter, how can they claim a right to be included
in the life of that son or daughter’s offspring?

grandparent rights are not a necessary or even the most productive
method by which grandparents can remain involved in their grandchildren’s
lives. Indeed, those of us who believe that the legal system usually
exacerbates family problems would argue that layering new law on
top of the old only creates conflict. No law, no court, only privately
agreed upon arrangements: That’s the ideal manner in which to resolve
family disputes.

many disputes will go to family court. And when they do, the laws
and proceedings that offer a solution should be as simple and straightforward
as possible. Rather than complicating the law, alienated grandparents
should aim at simplifying it.

measure in particular would constitute a large step in that direction:
the rebuttable
presumption of joint custody
. Most grandparents are alienated
from their grandchildren because the custodial parent, who is not
their son or daughter, refuses contact. Since mothers usually receive
custody, paternal grandparents are most vulnerable by far.

best way for paternal grandparents to protect themselves in a divorce
is to fight for the establishment of a simple standard for custody.

“rebuttable presumption of joint custody” means family courts should
presume that divorcing parents will share
in the legal and physical custody of children unless
there is compelling reason to rule otherwise. (The protest of a
child or a history of parental abuse might constitute compelling
rebuttal.) Neither the mother nor the father would have a right
to unilaterally deny visitation to either set of grandparents.

rebuttable presumption of joint custody would allow a child to enjoy
an extended family on both sides of parentage: grandparents, aunts,
uncles, and cousins. Just as a child should not lose a parent through
divorce, neither should a child lose half of his or her own history.

as the nuclear family is redefined and placed under stress, the
extended family becomes more important as a safety net for children.
By fighting for equal custody rights for both responsible parents,
grandparents are fighting for themselves and for the children who
both deserve and need their love and protection.

heart goes out to every loving grandparent who is cut off from knowing
a grandchild. For them, National Grandparents Day must bring a stab
of pain rather than joy.

9, 2004

McElroy [send her mail] is
the editor of
and a research fellow for The Independent Institute in Oakland,
Calif. She is the author and editor of many books and articles,
including the new book, Liberty
for Women: Freedom and Feminism in the 21st Century

(Ivan R. Dee/Independent Institute, 2002).

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