Grandparent visitation
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Grandparent visitation. In some jurisdictions grandparents may have a legal right to have court ordered visitation (or access) of their grandchildren. In the United States all 50 states have a "grandparent visitation" statute that allows grandparents to ask a court to grant them the legal right to maintain ongoing contact with loved children. State laws vary greatly and some states do not guarantee that the grandparents will be able to obtain a court order granting them visitation. The rationale behind these laws is that sometimes, especially with the death of a parent or in a family that has undergone divorce, the children may not have the opportunity to have contact with the non-custodial parent and his relatives thus fostering continued familial bonds. Some parents say that court-ordered grandparent visitation infringes upon the fundamental right of a fit parent to raise their child in the manner they see fit (including the right to decide who the child will associate with).
The United States Supreme Court has said that "the interest of parents in the care, custody and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v Granville, 530 US 57, 65; 120 S Ct 2054, 2060 (2000). The Supreme Court also made it clear that this fundamental right is implicated in grandparent visitation cases. The plurality opinion stated at the outset that statutes allowing grandparent visitation orders to be imposed over parental objection "present questions of constitutional import." The Supreme Court flatly declared that a parent's fundamental right to the "care, custody and control of their children" was "at issue in this case." The Supreme Court struck down the Washington grandparent visitation statute because it unconstitutionally infringed on that fundamental parental right.
State courts considering non-parent visitation petitions must apply "a presumption that fit parents act in the best interests of their children." Troxel, 530 US at 69; 120 S Ct at 2061, 2062. Troxel requires that State courts must give "special weight" to a fit parent's decision to deny non-parent visitation. “Choices [parents make] about the upbringing of children . . . are among associational rights . . . sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect.” MLB v SLJ, 519 US 102, 116-117 (1996). This principle must inform our understanding of the “special weight” Troxel requires courts to give to parents’ decisions concerning whether, when and how grandparents will associate with their children. Even though Troxel does not define "special weight," previous Supreme Court precedent indicates that "special weight" is a strong term signifying very considerable deference. See, e.g., Comstock v Group of Institutional Investors, 335 US 211, 230 (1948); Tibbs v Florida, 457 US 31 (1982). The "special weight" requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent's wishes will only be overcome by some compelling governmental interest and overwhelmingly clear factual circumstances supporting that governmental interest.