In 1979, President Jimmy Carter signed a federal proclamation establishing the first Sunday after Labor Day to be National Grandparents Day. At the time he wrote, “The elders of each family have the responsibility for setting the moral tone for the family and for passing on the traditional values of our Nation to their children and grandchildren.”
In spite of the calendar’s nudge, some families live with a fragmented relationship between its elder and younger generations. For any number of reasons parents of minors may deny a biological or adoptive grandparent visitation rights. If parents want to bar their children from the interaction, what recourse do grandparents have?
Understanding the law
While the United States Constitution states a child’s right is “to be surrounded by such influences as will best promote its physical, mental, and moral development,” family law matters largely reside with each state’s statutory and constitutional law. Accordingly, grandparent visitation laws vary by state, as do the decisions and provisions applied by family courts. Generations of a family disseminated across the nation should understand uniform visitation laws simply do not exist.
If you fall into the category of an estranged grandparent denied the right to spend time with your grandchild or grandchildren your first order of business should be a thorough investigation of the laws in the state where the children in question reside. Studying the legalities of custody is one part of the equation, while the other piece of the puzzle is to study case law–in other words, precedent.
According to Elizabeth K. Bransdorfer, an attorney with Mika Meyers, PLC in Grand Rapids, MI, “Under Michigan law, a grandparent’s right to spend time with a grandchild is very limited. If both the child’s parents don’t want him or her to have contact with a grandparent, the parents have the Constitutional right to prohibit that contact unless they are ‘unfit’ parents.”
And in Wisconsin, “Our most recent Wisconsin Supreme Court case, Michels v. Kelsey, 2019 WI 57, arises from the grandparent visitation provisions in our Chapter 767 for a paternity case, and makes it harder for third parties to secure court orders for visitation, in my view,” states Christy A. Brooks an attorney with von Briesen & Roper, s.c. in Milwaukee, WI.
Seeking at least a legal consultation with a family attorney is advised, and will pinpoint issues you may not fully grasp in the course of your own research. Certainly, if you plan to sue for visitation, it is the right time to speak with an attorney.
What legal status does a grandparent have?
Parental rights and control over their children are virtually inalienable. If potential parental substance abuse issues, mental health issues, or neglect of the child’s welfare in some capacity exists, evidence and proof are needed. If allegations are proven and a child is endangered, the child will be removed from their home, either temporarily or for an extended term. Legally, adult relatives must be identified and notified. Even so, grandparents are not guaranteed custody. The bottom line is parental rights supersede grandparents’ rights.
Again, in Michigan, “If the grandparent’s child/parent is still alive, but resisting allowing access to the grandchild, it is virtually impossible to get court-ordered grandparent visitation,” according to Brandsdorfer.
Family disputes aside, grandparents may clearly see the need for intervention into the life of their grandchild as a firm solution to circumstances negatively impacting an innocent child. Being denied “access” to the child or children in such situations is more than some can bear, and litigation ensues. However, in less onerous situations, steps exist prior to pursuing litigation and as grandparents’ rights are not inviolable, exhausting all means to keep the issue out of court could prove to be the best remedy to reconcile visitation.
Finding solutions outside of the courtroom
Barring larger issues (substance abuse, criminal activity, etc.), cessation of grandparents’ visitation lies with the generation sandwiched in between grandparent and grandchild: the parents. With divorce or the death of one parent, the parent awarded custody may cut ties with their ex-in-laws. Ensuing family drama, disputes, criticism, control, unresolved emotional issues lingering from years gone by, religious discrepancies, child-rearing, and disciplinary differences, to name a few items on a laundry list, all make a play in the adult relationships that cause ties to be severed.
If you are a grandparent who has been “blocked” from spending time with grandchildren for any number of reasons, aim to resolve conflict with the parents of the children as a worthwhile exploration. Apologizing for hotbed issues, even if culpability does not lie with you, is a way to ease tensions. Consider not giving advice unless directly asked for it. Family therapy employs a neutral third party in a forum intended to resolve the dispute. There are two sides to every story, and then there is the truth, after all.
Brooks states a pragmatic truth, “Grandparents need to face the practical question: if the parents are not abusive or neglectful, their choice most often will control the time their children spend with others, and judges will not likely override that parental choice with different court orders.”
Is mediation a better option?
If the situation is deadlocked, engaging in mediation is yet another step to take toward pacific resolution. Mediation is not therapy. Instead, it is a step intended to settle family law issues, or burgeoning legal disputes, by developing strategies to reach resolution suitable to the parties involved.
When to pursue litigation
In some cases, legal recourse is the solution most helpful to the child. Brandsdorfer suggests “pursuing grandparent visitation after the death of the child/parent if the grandchild had been living or spending significant time with his or her grandparent(s) and didn’t have a strong relationship with their other parent. This is a relatively common situation when the second parent returns to the picture to collect social security survivor benefits or life insurance proceeds.”
What to keep in mind
It is helpful to document your relationship with grandchildren in terms of interaction you have together with them in order to demonstrate the strength of the relationship. Document phone calls, cards you have sent– ther attempts you have made to maintain contact.
Understand the court will expect you to be able to show that denying (your) visitation would harm your grandchild, and therefore warrant the court to override the wishes of the child’s parent/s.
Take into account the financial burden you will incur retaining a legal team to litigate on your behalf.
In closing, Bransdorfer states, “My advice to grandparents is to avoid litigation and try two other approaches. First, try to keep a positive relationship with the child’s parents so they see you as a positive part of their family. Second, don’t ever ‘insist’ on your rights–instead, offer to be available to help when needed. The old adage about catching more flies with honey than with vinegar is very true in this context.”