Wednesday, September 20, 2006
Law - Grandparents' visitation rights
Diana Skaggs, of the Kentucky Divorce and Family Law Blog, has this entry today titled "Two New Post-Troxel Grandparent Cases." She references a Findlaw column by Hofstra University law professor Joanna Grossman, headlined "Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional."
Grossman also wrote an article last November titled "A Victory for Grandparents: The Ohio Supreme Court Upholds a Statute That Gives them Visitation Rights With Grandchildren."
Grossman, in her most recent article, notes, under the heading "The National Landscape: Many Visitation Statutes Remain Intact":
Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.She concludes:
Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.
However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.
Here are some of the factors that make a statute likely to survive: If it sensibly narrows the class of parties with standing to sue; if it permits third-party requests only when the family is not intact because of death or divorce; and if it expressly creates a presumption in favor of the parent's wishes.Here is Indiana's 1997 grandparent visitation statute, IC 31-17-5 .
These factors were crucial to these two newest decisions from Pennsylvania and Utah. Future cases are likely to rely on them as well, as state supreme courts navigate the post-Troxelworld, trying to uphold the Supreme Court's mandate that parental preference, at a minimum, be given "special weight."
Here is an ILB entry from August 2004 commenting on a then-newly passed Illinois law enabling grandparents to file for visitation rights, and linking to the 6/2/04 entry on the Indiana Court of Appeals opinion, Maser v. Hicks, holding that "Step-Grandfather lacked standing as a 'grandparent' under the Grandparent Visitation Act to petition for grandparent visitation rights." That ruling turned on the definition of "grandparent" in IC 31-9-2-77.
The August 2004 entry brashly began: "There have been a number of Indiana decisions on grandparents' visitation rights and I plan to do an article on this at some point in the near future." I was overly ambitious.
Posted by Marcia Oddi on September 20, 2006 07:52 AM
Posted to General Law Related