Thursday, February 18, 2010

Grandparents' Rights to Visitation

Historically, following the death of a child, an acrimonious divorce leaving custody with a child's former spouse, or the breakdown of their relationship with a child, grandparents have been without any legal right to secure granparenting time visitation with their grandchildren. With the aging of the population, and with increased divorce rates, state legislatures started to enact statutes which granted grandparents some rights to seek court-enforced time with their grandchildren, even against the wishes of the grandchild's parents. The circumstances under which grandparents could seek grandparenting time, and the nature and amount of grandparenting time which could be made available, varied from state to state.

In 2000, in the case of "Troxel v Granville", the United States Supreme Court addressed the issue of third party rights to seek court-enforced time with children. Within this context, a "third party" is somebody other than the child's parents. The Washington State statute examined in Troxel was not technically a "grandparenting time" statute, as it allowed “[a]ny person” to petition for visitation rights “at any time”. The Supreme Court had little difficulty in determining that the Washington statute was overbroad. While the Troxel opinion is a "plurality" decision, meaning that there is no single opinion of the court which was signed by a majority of the Justices, the decision made clear that there were certain prerequisites that grandparenting time statutes must meet in order to be constitutional. Six Justices joined opinions holding the Washington statute to be unconstitutional. While there can be significant divergence of opinion with regard to what Troxel means, many practitioners believe that it requires...

To read this article in its entirety, click here.

For more information, contact the Family Law Offices of Renee M. Marcelle at (415) 456-4444, or online at


No comments: