Sunday, January 22, 2006

Case Law Development: Iowa Supreme Court Ends Grandparent Visitation Rights Despite Judgment Based on Mother’s Original Agreement Allowing Visitation

On Friday, the Iowa Supreme Court ruled that grandparents have no right to visitation with grandchildren over a mother's objections, even though she had earlier agreed in a hearing to allow her children’s grandparents such a right. She had never appealed the judgment incorporating that order. 

The dispute began when following their son’s divorce, Wanda and Jim Spiker filed a petition for grandparent visitation under Iowa law. Their son had apparently stopped seeing the children and their daughter-in-law, Sherry, stopped allowing the children to visit them. In the course of the litigation, Sherry entered into a stipulated agreement providing that Wanda and Jim would be allowed visitation with the children. However, they could not agree as to the length or time of the visitation, so they left that issue for the court to decide. Following a hearing, the court granted Wanda and Jim visitation with the children on the first weekend of every month beginning September 2001. Sherry did not appeal.

Visitation occurred as ordered for almost a year when Sherry began withholding one of the children from visits. By 2004, Sherry refused to allow Wanda and Jim to visit either child. In February 2004, Wanda and Jim initiated contempt proceedings against Sherry for refusing to allow visitation with the children pursuant to the stipulated agreement. She asserted that the grandparent visitation statute was unconstitutional and that enforcement of the visitation order would violate her due process rights.

The trial court held a hearing on the issue and issued an order finding Sherry in contempt of court. Sherry then filed a motion to enlarge or amend the order, arguing that enforcement of the visitation order would violate her due process right to raise her children without undue interference by the State. She also argued that the stipulation agreement she entered into was unenforceable and did not validly waive her constitutional rights. The court denied the motion. Sherry did not appeal.

In April, 2004, Sherry filed another challenge to the order, arguing that the decree providing the grandparents with visitation was unconstitutional. This time the court granted Sherry’s motion for summary judgment and vacated the visitation order. Wanda and Jim appeal.

The Iowa Court affirmed the trial court’s decision.  In doing so it accepted the view that res judicata does not apply to orders concerning custody and visitation--that a court always has jurisdiction to modify such a decree. It held that Res judicata does not bar Sherry’s petition to modify or vacate the visitation order because the change in the law recognizing the unconstitutionality of Iowa law is a substantial change in circumstances justifying modification of the order. It said that giving continued effect to the visitation order is unjust because it constitutes a continuing violation of Sherry’s constitutional right as a mother to make decisions regarding her children’s well-being absent a showing of harm to them or her unfitness. The fact that the order was based on a stipulation of the parties does not alter this result. News Source: press-citizen.org.

Spiker v. Spiker, 2006 Iowa Sup. LEXIS 7 (January 20, 2006)  A copy of the Slip Opinion of the Iowa Supreme Court may be found here (last visited January 22, 2006, reo).

For the complete news story, please click here (last visited January 22, 2006, reo). 

http://lawprofessors.typepad.com/family_law/2006/01/case_law_develo_23.html

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