Constitutional Rights of Grandparents: Do We Have Any?

As the structure of American families continues to morph, a steadily increasing number of grandparents find themselves in the position of outsider.
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I remember Margie more distinctly than the others because for one full year of Tuesday mornings she simply could not stop weeping. The other women who attended the support group I facilitated for victims of domestic violence also wept, but many of them, most of them, after a few weeks or months, were able to stop sobbing long enough to get angry or listen to suggestions, or in a few cases, to begin to make plans for a new life.

Margie was different. She seemed the most defeated in a roomful of women who felt defeated. She was a grandmother, decades older than the others. I was able to visualize what the younger women would look like with the shimmer of hope in their eyes, but I could not imagine Margery's face without permanent emotional scars. Her son and daughter-in-law had denied her all access to the grandson she adored, and after a lengthy and debilitating battle, the courts upheld the parents' decision, not because the judges felt the parents were right, but because they felt it was not their place to interfere.

Margie was something of an anomaly in our support group. I had been charged with the task of encouraging battered women to run away from the men who made them feel worthless. Margie wanted me to help her run toward a little boy who made her feel like a queen. She had nowhere else to turn. Hope was dead and all I had to give was empathy. It wasn't enough.

As the structure of American families continues to morph, a steadily increasing number of grandparents find themselves in the position of outsider. Death, divorce, incarceration, and substance abuse are the primary causes of rifts between parents and grandparents. Most often, it is a grandparent's in-law child who instigates the denial of access to grandchildren. Laws vary from state to state, but if a child's parents mutually decide to banish grandparents from their home, many courts are loath to interfere.

In 2000, a U.S. Supreme Court Case, Troxel v. Granville, which can be read here, ruled that as long as a child is not being harmed, the U.S. Constitution affords parents the fundamental right to raise their children without government interference. Grandparents therefore, have no constitutional rights.

Family law practitioners have been reeling ever since this decision was made. According to AARP, the ruling spurred many states to rework their constitutions in order to give more heft to parental rights.

The 2000 ruling was upheld on February 29 of this year when the Supreme Court declined to hear an Alabama case that challenged it. When a business arrangement between a father and son went sour, the son and his wife forbade the grandparents from contacting their grandchildren in any way. The lower courts ordered visitation, but the Alabama State Appeals Court and the State Supreme Court, adhering to the precedent set by Troxel v Granville, ruled in favor of the parents.

Some states allow grandparents to petition for visitation rights, but the burden is placed squarely on those grandparents' shoulders to prove that a relationship with their grandchild is in the child's best interest. To this end, grandparents and their attorneys have arrived at court armed with numerous studies that extol the benefits of grandparents as active participants in children's lives.

Other states require grandparents to prove that harm would be done to grandchildren by denying them access to loving grandparents. This is a much more daunting, and sometimes insurmountable challenge. Without benefit of a crystal ball, how is it possible to prove that a grandparentless child is harmed in any measurable way?

Given the current state of the law regarding grandparents, The American Bar Association as well as the numerous family counselors I consulted agree that a court battle should be a last resort. It can fuel the flames of acrimony and make matters worse for grandparents. The process can take years, and can wreak havoc on finances and health. Grandparents would be well advised to avoid taking legal action. Mediation is consistently suggested as a viable option. And there are steps that can be taken from the time a grandchild enters the world.

Be wonderful. Don't interfere. Don't take sides in a marital dispute. Always put the child's best interests before your own ego. Offer help sincerely when your children need it, rather than when it's most convenient for you. Keep communication flowing between you and the parents of your grandchildren. Don't get bent out of shape when your children want to be left alone. Respect and follow their rules. Allow them to make their own mistakes. Maintain their boundaries. Do your best to make them want to have you around, even if this involves letting go of some of your deepest held parenting beliefs.

In the case of separation and divorce, try to have grandparent visitation rights included in the settlement so as not to have to return to the issue at a later date.

The unfortunate truth remains that sometimes perfectly lovely people, through no fault of their own, are rejected and treated poorly. It is heartbreaking. Having spent a month smooshing my precious granddaughter to within an inch of her life, I can imagine the pain experienced by those denied the perfect unconditional love that is part and parcel of grandparenthood. Margie's world imploded the day her grandson was forbidden to see her. The experience took a toll on her marriage, her friendships, her job and her health. "It was a living death," she told me.

It is said that grandchildren are God's way of compensating us for growing old. Margie served in the trenches of childrearing. She earned this compensation. I ache for her and those in her shoes who are denied the pleasure of their grandchildren's company.

For those who would like more information about grandparents' rights or who seek support from others who understand, the following sites are helpful.

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