Family Law Publications

GRANDPARENTS RIGHTS

By Jocelyn B. Hurwitz

A Developing Concept of "Family"

The definition of the word "family" has been much on the mind of state legislators and the United States Supreme Court of late. Witness the passage of Public Act 0228, formerly H.D. 5830, which was signed by Governor Rowland on June 1, 2000. That Act allows the adoption of a child by two same sex parents who have raised the child as a family. The passage of the Act mirrors similar activity in other states around the country.

On June 5, 2000, four days after the passage of the same sex adoption bill in Connecticut, the United States Supreme Court decided a landmark case regarding grandparent's rights that further defined what we think of as a "family" in the legal sense of the word. In Troxel v. Granville, (formerly 137 Wash. 2^nd 1, 969 P. 2^nd 21, affirmed) the Supreme Court considered a situation in which a single mother of two who had never been married to the children's father opposed an action instituted by the children's paternal grandparents seeking visitation with her children. Ultimately, the United States Supreme Court struck down Washington's grandparents' visitation rights law as unconstitutional.

The United States Supreme Court's decision affirming the judgment of the Washington Supreme Court is noteworthy in several respects. First, the court recognizes the "changing realities of the American family." Relying on statistics from the Bureau of Census, the Supreme Court (composed of at least three members who are themselves grandparents) recognized the fact that in these times of dual income families, grandparents are often called upon to act as caregivers for their grandchildren.

However, the court relied heavily upon the long recognized liberty interest of parents "in the care, custody, and control of their children." The court seemed disturbed by the practical effect of the Washington statute which was, in the court's words, that the "[state]…can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests."

 In-laws Beware?

The sad undercurrent of the Troxel case is a strained relationship between the grandparents who initiated the action and the mother of their grandchildren, who was never married to their deceased son. Although the family situation is somewhat unusual - a deceased father whose parents are fighting to see their grandchildren, born out of wedlock - the problem it highlights is not. In my own practice, I see on a frequent basis the souring of the relationship between a custodial parent and his or her inlaws during or after a divorce. The custodial parent is often unwilling to allow the noncustodial parent frequent visits with the children, and even less likely to add visits between the children and the inlaws to the time he or she already gives up with his or her child. A number of cases involving constitutional challenges to Connecticut's granparents' visitation statute are currently making their way through our judicial system.

What will become of Connecticut's statute, similar (if not broader) in scope to Washington's statute? While the Supreme Court concluded that the statute in this case, as interpreted, was unconstitutional, it left plenty of "wiggle room" for state legislatures to amend their statutes to render them constitutional upon review. For instance, the Court considered significant the fact that the Washington statute contained no mandate that a trial court give special attention to a parent's decision with respect to what is in the child's best interests. The Court insinuated that had the lower court applied a "presumption that fit parents act in the best interests of their children" the statute might have been upheld on review. Indeed, the Supreme Court concluded that the opposite presumption had been applied. The Court stated, "the problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests." It is very likely that in light of Troxel, we will soon see an amendment to our statute that will render our statute constitutional. In the meantime, the rights of Connecticut grandparents to seek visitation with their grandchildren during or after a divorce action is very much in limbo.