|
E-mail this page to a friend!
Grandparent News
Advice for Grandparents on Gaining Access to
Grandchildren
Law changes enable grandparents access over
parental objections
By
Arthur H. Kroll
 September
15, 2006 - The number of divorces has continued to increase
dramatically. While some parents work out joint custody, more commonly
one parent is granted primary custody. The sad result is that parents
of the non-custodian parent are often cut off from their grandchildren.
This is especially true where parents live apart and are separated by
long distances. Since many grandparents are now living longer, they
have more grandchildren and they are concerned about access. Many have
become members of the Association to Reunite Families or similar groups
because former in-laws may not always be cooperative.
| |
Related Stories |
|
| |
Grandparents Increasingly Asked to Care for
Abandoned Children
Stateline.org says 4 million now cared for by
family members
May 25, 2006, - Nationwide, at least 2.5 million
kids are living with grandparents, and Stateline.org reports that states
are increasingly turning to grandparents and other family member to care
for abandoned children. The states are also passing laws to expand the
legal rights of grandparents raising their grandchildren. But, the
federal government is cutting back on funds it once provided to
facilitate family care of these children.
Read
more...
Making the Most of Your Time with Grandchildren
Download your copy of
the grandparents credo
By Susan Newman, Ph.D., author
Little Things Mean A Lot: Creating Happy Memories with
Your Grandchildren
Feb.
27, 2006 - Every grandparent is familiar with the fly-by visit: that
short, rushed time spent with grandchild that is closer to a pit stop
than a bonding experience. The shortness of visits is dictated by the
babys routine, parents hectic schedules, or strained relationships.
You may feel your son- or daughter-in-law short-circuits your visits or
you have a generalized feeling of being intrusive.
Read more...
Dallas Program Opens First Grandparent Information
Center
KinCare Network
reaches out to help grandparents raising grandkids
Feb. 23, 2006 - Joyce Houston of Dallas, confined
to a wheelchair by a stroke and living on a limited income, is caring
for two active granddaughters, ages 10 and 16. They are two of almost
one-half million minor children in Texas being cared for by
grandparents. One in 12 American children is living in a household
headed by a grandparent or relative other than a parent, according to
the Children's Defense Fund.
Read more...
Read more
Grandparent News |
|
Historical Perspective
Historically, parental right to raise children as they see fit was
protected by the due process clause of the 14th Amendment to the US
Constitution. However, more and more states now have grandparent
visitation statutes. It is important to check your local law but some
principles discussed below are constant.
Actions Which Can Protect Access (short of
litigation)
There are certain actions that grandparents can take that will enhance
their visitation rights without resorting to litigation in family court.
For example, it is important for grandparents not to be negative about
the in -law custodian. It is important for grandparents to let him or
her know their wish to continue to be involved with their grandchildren
and their desire to continue family celebrations.
It is often desirable to offer to help out when
needed. For example, by taking care of grandchildren when he or she is
taking vacation is often appreciated. Similarly, it is important for
grandparents to be involved in the education of their grandchildren.
They should not place criticism or blame on the in-law for the divorce
and should stay out of the middle. Often these actions alone will be
sufficient for the in law to be most gracious about visitation.
A heart felt letter by grandparents in the author's
experience can result in visitation rights if it is worded well.
Indeed, in one case I was involved in such actions
by the grandparents increased their bonds to both their grandchildren
and their in-law. In this particular case the grandparents became as
close with their daughter-in-law as they were with their son. Both the
grandchildren and the divorced parent remained part of the family.
If this action is likely to be unsuccessful, then
grandparents can get involved in the Separation Agreement between the
two parents. By telling both your child and in-law of your desire to
remain involved, visitation rights can often be included in the
Separation Agreement. This will spell out when and how often visitation
is to be provided to grandparents.
If both of these actions are unsuccessful,
mediation can often result in an agreement between the parties.
Visitation should be protected while divorce is pending or upon the
death of the non-custodian parent. Visitation is often desired by
grandparents for children born out of wedlock.
Court Action
If negotiation, agreement, or mediation does not satisfactory
resolve the issue court proceedings often will provide grandparents with
visitation rights. Twenty years ago, legal action for a grandparent
denied access would have been most difficult. The courts hesitated to
intervene in family situations except in extreme circumstances directly
related to the child's welfare.
The courts supported a traditional emphasis on
parental rights and autonomy in child rearing. For example, in the 19th
century, the Supreme Court of Louisiana ruled that the parents'
obligation to provide access to grandparents was a moral issue, not a
legal one, and therefore was not enforceable by the court, and that the
court should not intervene unless the parent was unfit.
Change in Law
In the past twenty years, changes in the law have enabled
grandparents to be granted access to their grandchildren over parental
objections. Most important, the adoption of the best interest of the
child standard, as well as revelations of parental authority, have been
related to the general shift of focus in decisions relating to
children. Some states impose responsibility on the grandparents to
prove that denial of access will harm the grandchildren.
Most states have laws permitting grandparents to
petition for visitation upon death or divorce of a adult parent. This
assures the grandparent the right to be heard in court, but it still
remains for the court to decide if it is in the childs best interest to
visit with the grandparent.
As noted, many states provide reasonable visitation
rights for maternal and paternal grandchildren. In many states
grandparents can usually intervene in custody proceedings and obtain
visitation rights if such interest is in the best interest of the
child. Studies of some psychologists have concluded that the stronger
the ties with grandparents the less likely it is that grandchildren will
develop psychopathology as they grow older. This finding is helpful in
court proceedings. Other studies concluded that such children become
more effective parents and grandparents themselves.
Grandparent visitation legislation has risen quite
differently from other domestic relation laws, which generally follows
social change. The changes in grandparents visitation legislation is
seen as the product of intense political activity by todays older
citizens who are greater in number, healthier and more politically
conscious and powerful than in the past. The formation of grandparents
rights groups is a growing phenomenon in the United States and Canada.
A recent case decided by the Supreme Court of New
Jersey indicates the developing law and was viewed by grandparent
associations as the critical test case.
In Moriarty v. Bradt, 2003 N.J., the court
addressed the constitutionality of New Jersey's grandparent visitation
statute. In a decision guaranteed to make loving grandparents breathe a
collective sigh of relief, the Court upheld the statute. In so doing,
the Court held that grandparents seeking visitation under the statute
must prove by a preponderance of the evidence that denial of visitation
would result in harm to the child.
The parent denying visitation relied on Troxel, a
case where the U.S. Supreme Court ruled a Washington State visitation
statute was unconstitutional because it allowed courts to grant
visitation right to anyone (not just grandparents), when visitation may
serve the best interest of the child.
The Supreme Court in New Jersey held the
grandparent visitation right statute to be constitutional. However, it
also found that in every visitation case, grandparents bear the burden
of establishing by a preponderance of the evidence that visitation is
necessary to avoid harm to the child. If there is a showing of harm,
the presumption in favor of parental decision making will be deemed
overcome.
Generally, a court will consider eight factors on
deciding on whether visitation is in the best interest of the child:
● The relationship between the child and the
grandparent
● The relationship between each of the child's parents, or the person
with whom the child is residing, and the grandparent.
● The time that has elapsed since the child last had contact with the
grandparent
● The effect that such visitation will have on the relationship
between the child and the child's parents or the person with whom the
child is residing
● If the parents are divorced or separated, the time sharing
arrangement that exists between the parents with regard to the child
● The good faith of the grandparents in filing the application
● Any history of physical, emotional or sexual abuse or neglect by the
grandparent
● Any other factor relevant to the best interest of the child.
In many cases in which the author was involved
courts granted reasonable visitation rights.
Conclusion
Fortunately the law has evolved to recognize that often the
continued association with the child by the grandparent through
visitation is in the best interests of the child. However, a court
process can be long and costly and can often hinder better relationships
between grandparents and their in law. It many cases the issue can be
resolved amicably though negotiation and discussion, or mediation, or in
the Separation Agreement.
About the author:
Arthur H. Kroll is Chairman and CEO of the KST
Consulting Group, Inc. and has lectured at numerous programs on
grandparents' rights. He is a nationally known expert on estate
planning and elder law, and is an adjunct professor at the University of
Miami School of Law and New York University. He has served many
grandparents seeking visitation right to their grandchildren and
protecting grandparents from abuse or exploitation.
More resources:
ElderLawAnswers.com on Grandchildren
Grandparents Rights Organization
Click to More Senior News on the
Front Page
Copyright: SeniorJournal.com |
