Magazine article Developments in Mental Health Law

Court Ordered Grandparent Visitation Does Not Violate the Constitution; Ruling Not Disturbed

Magazine article Developments in Mental Health Law

Court Ordered Grandparent Visitation Does Not Violate the Constitution; Ruling Not Disturbed

Article excerpt

Historically, parents had the exclusive right to determine with whom their children could associate. As a result, grandparents lacked any substantive rights regarding the custody of their grandchildren. In recent years, all fifty states have enacted grandparent visitation statutes to enable grandparents, under certain circumstances, to obtain a court order granting them contact with their grandchildren, even when the child's parent objects. These court orders are often sought following the divorce of the child's parents or the death or termination of parental rights of one of the child's parents and the development of a rift between the grandparents and the remaining custodial parent.

In 2000, the United States Supreme Court struck down a Washington state law that permitted "any person" to obtain court-ordered child visitation rights over the objection of the child's parent if that person could establish that visitation was in the best interests of the child. Troxel v. Granville, 530 U.S. 57 (2000). Although it struck down what it characterized as the "breathtakingly broad" Washington statute and recognized the fundamental constitutional right of parents to make decisions concerning the care, custody, and control of their children, the Court did not find such statutes to be inherently unconstitutional. Its deeply splintered opinion, however, provided little guidance to courts reviewing the enactments of other states.

In Pennsylvania, grandparents can obtain court-ordered partial custody or visitation of a grandchild following the death of their daughter or son (i.e., following the death of a parent of a child who is also the child of the grandparent). The Pennsylvania Supreme Court upheld this law in a case of first impression for that court.

The court did acknowledge that (1) under the federal constitution parents are entitled to determine which third parties may visit their children and to what extent, (2) the right to make decisions concerning the care, custody, and control of one's child is one of the oldest fundamental rights protected by the Due Process Clause, and (3) fit parents are entitled to a presumption that they act in the best interests of their children. As a result, the court ruled that laws that afford rights to grandparents but infringe the fundamental rights of parents must pass a "strict scrutiny" test. Thus, this infringement must be supported by a compelling state interest and the infringement must be narrowly tailored to effectuate that interest. The court noted that fourteen other states have applied this standard of review in this context (Alabama, Arkansas, Connecticut, Florida, Illinois, Iowa, Maine, North Dakota, New Jersey, Ohio, Tennessee, Texas, Washington, and Wyoming).

The Pennsylvania Supreme Court determined that the compelling state interest here was the state's longstanding interest in protecting the health and emotional welfare of children. Further, the Pennsylvania statute was distinguishable from the one struck down in Troxel because it was narrowly tailored to serve this interest when it limited those who can seek visitation or partial custody not merely to grandparents, but specifically to grandparents whose child has died. The rationale supporting this legislation cited by the court was that grandparents have assumed increased roles in their grandchildren's lives and "our cumulative experience demonstrates the many potential benefits of strong inter-generational ties. …

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