Do grandparents get visitation rights? Supreme Court declines case.

Two Alabama grandparents have lost their bid to have court-ordered regular visits with their teenaged granddaughters.

The US Supreme Court on Tuesday declined to take up the grandparent’s appeal in a case testing when a judge can force objecting parents to permit regular visits between a grandparent and grandchildren.

The high court action allows a decision of the Alabama Supreme Court to stand. The Alabama high court had ruled in favor of the parents who opposed court-intervention in the grandparent visitation dispute.

All 50 states have grandparent visitation laws in which a judge can require regular access to one’s grandchildren.

But what is less clear is how a judge is to rule when the child’s parents are opposed to such grandparent visitation.

At issue in ERG v. EHG (11-311) was whether the fundamental right of parents to decide how best to raise their children includes the authority to deny grandparents an opportunity to visit with their grandchildren.

The high court last examined the thorny issue of grandparent visitation in a 2000 case. The court sided with the parent over the grandparents, but the justices declined to identify a clear constitutional standard that could be easily applied in future cases involving visitation disputes between parents and grandparents.

Lawyers for the Alabama grandparents were hoping the Supreme Court would use their case to revisit the issue and set a brighter constitutional standard.

The issue arose in an Alabama case involving an intact family with mother, father, and two daughters living together. The family had been close to the paternal grandparents, with the children developing a strong relationship with their grandparents. A business dispute led to a falling out within the family. The parents cut off contact between the grandparents and the children.

The grandparents placed signs declaring their continued love of the girls along the bus route the girls traveled to school, and they attended the girl’s softball games and other public activities as an opportunity to see them.

Eventually, the grandparents sued for more regular access under Alabama’s Grandparent Visitation Act. The trial judge ruled for the grandparents, ordering unsupervised visitation for several hours every Friday afternoon, visits the day before their birthday and Christmas afternoon, as well as daily telephone communication.

The parents appealed, and the appeals court reversed. The case went to the Alabama Supreme Court.

In addition to upholding the parents’ right to decide the issue, the Alabama Supreme Court struck down the state law, the Grandparent Visitation Act, in its entirety as a violation of the parents’ due process rights. The court said that the parents’ right to raise their children may not be undercut by a judge in a visitation rights case unless a judge has already determined that the parents were “unfit.”

Short of such a declaration, the state has no authority to intrude into a parent’s decision concerning who their child will or will not socialize with, the Alabama high court said.

The state’s Grandparents Visitation Act had authorized child-grandparent contact whenever such contact was deemed to be in the best interests of the child.

There is a deep split among the states over how to resolve visitation disputes between parents and grandparents.

According to lawyers for the Alabama grandparents, 18 states require some level of proof that the parent is unfit or that grandparent contact is necessary to prevent harm to the child.

In contrast, 19 states have embraced a more flexible approach, in which judges apply a presumption in favor of a parent’s decision, but there is no prior requirement they be found unfit.  In addition, these states require the grandparent to prove that the visitation is in the best interests of the child.

“Petitioners have asked a court to override the considered decision of fit, married, natural parents regarding who should have unsupervised visitation with their minor children. Such requests are rare, and they should be granted even more rarely,” wrote the parent’s lawyer, Kenneth Cleveland of Birmingham, in his brief to the court.

Mr. Cleveland said the split cited by opposing counsel is not as severe as suggested. Only a portion of the cited cases involved court review of decisions made by fit, married, natural parents, he said.

The grandparents’ lawyer, Kevin Newsom of Birmingham, rejected the idea that “fit, married, natural parents,” are entitled to higher level of constitutional protection than any other parents.

“Families come in all shapes and sizes,” Mr. Newsom wrote in his brief to the court. “Respondents seem to envision a dividing line with Ward and June Cleaver on one side – and all other parents on the other. It’s just not that simple.” 

The basic question, he said, is under what circumstances may a judge grant grandparent visitation over a parent’s objection?

“There is no perfect case in which to resolve that question,” Newsom said. “This Court’s answer – which it will eventually have to give – will necessarily apply to a range of fact patterns.”