Aftermath of Troxel, What's Next By G. R. Fernambucq
At common law, no rights to grandparent visitation existed. The right has been purely statutory in nature. Today, all fifty states have some form of third-party visitation rights. Some states, such as Alabama specifically included “grandparents” in their statutory language. Many states even recognized that people today are living longer and included great grandparents in their statutes. Still others, such as Washington State as we saw in Troxel were written so broadly that they allowed any third-party to petition for visitation rights if it was in the “best interests” of the child.
The law concerning this area is still in a state of being refined. The fundamental question that must be addressed is to what extent should a non-parent be allowed visitation without being too disruptive to family autonomy and an abridgment of parent’s constitutional rights? While Troxel did not strike down all third-party visitation statutes per se, it certainly reaffirmed the parent’s freedom to provide for the custody and care of their children under the Due Process clause of the Fourteenth Amendment.
Several states have already addressed the problems raised by Troxel and have reevaluated their statutes.
Kansas – This statute states that a grandparent may petition for visitation if it is in the best interests of a child and a substantial relationship has been established between the child and a grandparent. The burden of proof is squarely on the grandparent to prove a “substantial relationship.”
South Dakota – This statute allowed grandparent visitation the parent has denied or presented a grandparent reasonable opportunity to visit the grandchild, however the court can only grant visitation if it does not significantly interfere with the parent-child relationship.
Ohio – The Ohio statute is similar to Washington State’s statute in that it allows any person to petition for visitation with a child. Effective early this year, the statute was amended to include a provision that the parent’s wishes and concerns must be considered when determining visitation rights to a person other than a parent along with “conscience factors” such as the residence of the parties and the amount of time available and other factors.
The American Academy of Matrimonial Lawyers has drafted a Model Third-Party (Non Parental) contact/visitation statute. The following is a copy of that draft, as well as committee comments on the rights of parents, grandparents, and probably most importantly, the rights of the child independent from their parents not to lose especially significant relationships that already have been formed.
