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Grandma and Grandpa Go to the Supreme Court

By Marianna Brown Bettman · November 9th, 2005 · Legally Speaking
Grandparent visitation. Who could possibly be against it? Apparently not state legislators, because by the end of the 20th century every state had a grandparent visitation statute. Just picture the grandparent lobby descending on our statehouses!

Well, guess who turned out to oppose grandparent visitation? The heavily grandparent-laden U.S. Supreme Court, which in 2000, in Troxel v. Granville, declared Washington's grandparent visitation statute unconstitutional.

As usual, these knotty issues arise in decidedly non-nuclear families. Brad Troxel and Tommie Granville never married but had two daughters. Brad committed suicide. Tommie remarried, and her new husband adopted the girls.

For a time after their son's death, Brad's parents, Jenifer and Gary Troxel, often visited their granddaughters. But then Granville wanted to dramatically limit the visits. So the Troxels sought court-ordered visitation, which was granted over Tommie's objection.

Washington's statute permitted visitation rights to any person at any time and allowed a court to grant such rights whenever the visitation was in the best interest of the child. The Washington court that heard the case found the Troxel grandparent visitation to be in the grandchildren's best interests.

The U.S. Supreme Court struck down Washington's law because it infringed upon the constitutional right of parents to raise their children as they see fit. In the 1920s the Supreme Court held that the right of parents to rear their children is a fundamental right, protected by the due process clause of the U.S. Constitution.

Granville, not the court, has the right to determine what is in her children's best interest, and it was both wrong for the court not to give special weight to her wishes and to require her to prove the grandparent visitation was not in her children's best interest. As long as she is a fit parent -- which no one disputed -- the state has no business second-guessing her decision.

The Supreme Court had this to say: "The due process clause does not permit a state to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better decision' could be made."

The high court didn't decide whether a parent has to be unfit before visitation can be imposed against the parents' wishes.

The court also made it clear that special weight must be given to the parents' wishes but didn't elaborate on how that should be done or how special that weight should be. Six justices wrote separate opinions in this case, with no single majority position.

The Troxel decision didn't invalidate all grandparent visitation statutes. The high court specifically declined to take that route, leaving it to the individual states to evaluate their statutes in light of the holding of the case.

In Ohio, when the mother or the father of a child is deceased, a limited group of people, including grandparents, can seek visitation. I wondered what the implications of Troxel would be for Ohio's two non-parental visitation statutes. We now have an answer from the Ohio Supreme Court. The case is Harrold v. Collier, decided Oct. 10.

One way in which cases get accepted in the Ohio Supreme Court is by conflict certification. That means that two or more courts of appeals in the state come to different conclusions about the same issue. The Supreme Court accepts the case to resolve the conflict. That's how the issue of grandparent visitation made its way into the Ohio Supreme Court.

In a case from Noble County, the paternal grandparents of Laken Feldner wanted visitation with their deceased son's child, over the mother's objection. The trial court permitted the visitation, but the Seventh District Court of Appeals reversed, because it read Troxel to require that a parent's opposition to third-party visitation could only be overcome if the parent was unfit or the child otherwise needed protection from an abusive situation. Absent such a circumstance, the natural parent's wishes trump the grandparents' wishes. Finding no such circumstance, the court denied the visitation.

Over in Wayne County, the Ninth District Court of Appeals came to a different conclusion. Renee Harrold and Brian Collier had a daughter but never married. Brittany lived with her mother and her grandparents. Renee died of cancer when Brittany was 2. Her maternal grandparents, Gary and Carol Harrold, were granted temporary legal custody of Brittany.

But three years later Collier went to court and was awarded legal custody of his daughter. He removed her from her grandparents' home and refused to allow any further visitation between them. The Harrolds went to court to get visitation with Brittany. The juvenile court judge, also relying on Troxel, ruled that there wasn't a good enough reason to support grandparent visitation over Brian's objection and disallowed the visitation. The appeals court disagreed, reinstating the grandparents' visitation.

The Ohio Supreme Court unanimously upheld the constitutionality of Ohio's third-party visitation statutes and resolved the conflict in the two cases in favor of grandparent visitation, even over the objection of the parents.

The Ohio high court distinguished its third party visitation statutes from Washington's. Ohio's law lets fewer people seek visitation than Washington's does. Grandparent visitation is allowed only if it's in the best interest of the child, and the grandparents must prove this. In Troxel, the mother had to disprove it.

Most important to the court, the Ohio statute requires that the wishes of the parents be taken into account in making this determination, which the court felt addressed Troxel's concerns. A parent's preference is one of 15 statutory factors a court must consider in deciding whether to allow third-party visitation.

Sounds great, and unanimity is rare these days in courts, even courts full of grandparents. But I'm not at all persuaded that including a parent's wishes in an undifferentiated list of 15 statutory factors gives the "specialness" to a parent's wishes that Troxel requires. But then again, who could be against grandparent visitation?

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.


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