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Grandparents can't trump parental rights

By Wendy McElroy
web posted September 13, 2004

On September 12, National Grandparents Day, many grandfathers and grandmothers stared 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.

Largely because of such wrenching situations, the idea of "grandparent rights" has gained traction.

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

As 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.

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

According 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.

Whether 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.

All 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.

In 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 associate.

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

In 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.

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

The 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.

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

With 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?

Fortunately, 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.

Nevertheless, 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.

One 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.

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

The "rebuttable presumption of joint custody" means family courts should presume that divorcing parents will share equally 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.

The 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.

Indeed, 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.

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

Wendy McElroy is the editor of ifeminists.com 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). She lives with her husband in Canada.

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