Family Law Prof Blog

Amicus Briefs in Grandparent Visitation Case Before Supreme Court

In other developments on Grandparent Visitation, you can read the amicus briefs filed for and against writ of certiorari in the Pennsylvania Grandparent Visitation case Fausey v. Hiller (See Family Law Prof Blog post of August 25, 2006).  The briefs are posted at Howard Basham's blog How Appealing (last visited February 26, 2007 bgf)

Case Law Development: Grandparent Visitation Statute Upheld

Grandparent visitation cases seem to be taking center stage once again.  Recently, the New York Court of Appeals unanimously upheld a constitutional challenge to New York’s grandparent visitation law.    The court distinguished the New York law from the Washington law struck down Troxel v Granville, noting that the New York statute gave parents the presumption that they were acting the in their children's best interest. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one. And while ...the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. "It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement" ...

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child's best interest for his relationship with grandmother to continue — e.g., the reasonableness of father's objections to grandmother's access to the child, her caregiving skills and attitude toward father, the law guardian's assessment, the child's wishes — before making a judgment granting visitation.

The court concluded that the New York statute "does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild."  First, the court must find standing based on death or equitable circumstances; and if the court concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild.

Matter of E.S. v. P.D. (February 15, 2007)
Opinion from Legal Information Institute

Case Law Development: De Facto Parent Doctrine Rejected by Utah Supreme Court

The Utah Supreme Court has held that individuals who have no biological or legal relationship with a child have no standing to seek visitation. Reversing the district court's decision that a former domestic partner could assert a claim to visitation under the common law doctrine of in loco parentis, the court held that Utah's doctrine of in loco parentis does not independently grant standing to individuals to seek visitation after the in loco parentis relationship has ended.

The couple in the dispute had entered into a civil union in Vermont and, after one bore a child conceived through artificial insemination, they were both obtain co-guardianship of the child and raised the child together until their relationship dissolved two years later.  The court emphasized the temporary nature of the in loco parentis doctrine, concluding that it may be terminated by either the legal parent, the parent standing in loco parentis, or the child.  The court further refused to expand the doctrine to recognize a new doctrine of de-facto or psychological parent, finding that a legislative task beyond the competence or power of the judiciary and in conflict with legislative policy.

Chief Justice Durham dissented, emphasizing that there had been no legislative pronouncements at all on the issue of surrogate parent standing to seek visitation or custody and finding the extension of such a doctrine to be an appropriate exercise of the court's power to adapt the common law to changing social realities.

Jones v. Barlow, Utah (February 16, 2007)
Opinion on web (last visited February 26, 2007 bgf)

North Carolina Court must Decide Whether Child may Visit Mother who is in Prison for Having Murdered the Child's Father

The parents of a Raleigh, North Carolina man who was poisoned by his wife are trying to keep their granddaughter away from the her mother. An expert took the stand and presented the other side of the case.  That expert was another psychologist with a different view. The psychologist thinks the court's ban on Clare Miller visiting her mother, Ann Miller Kontz, in prison has not been good for the child.

Read the article and see the video news report on ABC11TV  (Last visited February 11, 2007 bgf)

Visitation Rights of Same-Sex Parent Considered by Minnesota Supreme Court

"Marilyn Johnson and Nancy SooHoo, like a growing number of gay and lesbian couples in Minnesota, became parents through international adoptions a decade ago. Now separated, they are embroiled in a child-visitation dispute that has reached the Minnesota Supreme Court. The court's decision could set a precedent in a new frontier in family law: determining the future visitation rights of nontraditional parents. SooHoo never legally adopted the children, but was granted visitation privileges in 2005. Johnson, who is the sole legal parent, appealed those privileges to the state's highest court." By Jean Hopfensperger, Star Tribune Link to Article (last visited 12-11-05 NVS)

Case Law Development: Using a Power of Attorney to Assign Visitation Rights

May a parent exercise a power of attorney to designate other family members to exercise that parent's visitation rights?  The answer is not terribly clear under most state law, but under Idaho's statute providing for a power of attorney to delegate parental powers, the answer is much clearer according to the Idaho Supreme Court. That case involved a father who, while serving military duty in Iraq, had assigned his visitation rights to his parents.  Mother argued that the Idaho statute should not be interpreted to allow such a designation, as it "contravenes the purpose of the power of attorney statute and removes from the courts the power to scrutinize such decisions prior to the designation."  The Supreme Court of Idaho interpreted the statute according to its literal wording and found that it did indeed provide him authority to designate his visitation rights.  The Idaho statute, expressly allows for parents to create temporary guardianships through execution of a power of attorney for a period of up to six months. 

What makes this case easy for the court is the presence of the statute allowing appointment of a temporary guardian through the power of attorney.  The statute is modeled on 5-104 of the Uniform Probate Code, which has been adopted by at least18 states. (See the National Center for State Court's listing or Cornell Law School's LII Uniform Probate Code locator)  For states without such a statute, it would be unclear whether a parent would have the ability to designate a temporary guardian without a court order.  Some states provide for the use of POAs for medical or educational purposes only.  A 2002 student comment in the Journal of the AAML surveys this and other state guardianship provisions.

Webb v. Webb, 2006 Ida. LEXIS 152 (November 29, 2006)
Opinion on the web (last visited December 4, 2006 bgf)

Case Law Development: Change in Circumstances as a Matter of Law

My students are sometimes frustrated by the large degree of deference given to trial courts in custody and visitation matters, leading to an attitude that "no case is predictible."  To counter this perception, I like to share cases in which discretion is limited by the facts alone.  The North Dakota Supreme Court provides one such case in which it holds that a trial court erred in determining that no change in circumstances justified modification of a visitation schedule.  Mother and Father had lived in the same town when visitation was established, but Mother and the child moved to a distant town thereafter. That same month Father was diagnosed with a serious disease requiring a twelve-month-long course of weekly treatments. He received treatments on Fridays, resulting in his exhaustion. He requested that Wife be required to assist in getting the child to him for his twice-a-month visitation, as driving to her home to pick up his child became physically difficult as well as more expensive and time-consuming.

On this record, the court concluded that "the change in circumstances since the original decree is material as a matter of law."

Ibach v. Zacher, 2006 ND 244 (November 28, 2006)
Opinion on web (last visited December 4, 2006 bgf)

Case Law Development: Massachusetts Court of Appeals Reaffirms Use of "Real Advantage" test in Relocation Cases

The Massachusetts court of appeals reversed a probate court's denial of a custodial mother's petition to relocate, finding that the court had given undue weight to the effect of the move of father's visistation and reaffirming that the "real advantage" test remains the standard by which relocations by custodial parents are to be measured. 

The 'real advantage' test is grounded on the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . . [and] that the child's quality of life and style of life are provided by the custodial parent.' . . . Although the best interests of the children always remain the paramount concern, '[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account.

Here, the court concluded that

On its face, the mother's case would seem to present a relatively straightforward application of real advantage principles: her marriage had dissolved; she had lost her three-day per week job with Fleet Bank that paid $ 70,000 plus bonuses; the house in which she and the child had lived in Newton was not available after July, 2005, on a month-to-month basis; and she could not afford to purchase a home in Newton that would enable the child to stay in the local school. The move to Old Saybrook offered her free lodging in an upscale community, the companionship of family, and readily available child-care assistance from family while she looked for and established herself in a suitable job. As of the time of trial, she had accepted a three-day per week job as a mortgage originator at a Sovereign Bank in Old Saybrook. These circumstances establish a "good reason" for the move to Connecticut, and the probate judge's determination to the contrary is clearly erroneous.... the findings and rulings concerning removal concentrated almost exclusively on the father's relationship with the child, and in particular the desirability of frequent, short visits with the father. While those findings cannot be considered erroneous, disruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed. It is clear from the probate judge's findings that undue -- in effect, dispositive -- weight was given to this criterion.

A dissenting judge would have given greater deference to the trial judge.

Cartledge v. Evans, 2006 Mass. App. LEXIS 1069 (October 19, 2006)
Opinion on web (last visited October 20, 2006 bgf)

Kim Basinger Charged with Criminal Contempt Over Alec Baldwin's Visitation

"Kim Basinger will go to trial after pleading not guilty Wednesday to disregarding court orders concerning ex-husband Alec Baldwin's visitation rights with their daughter, a court official ordered. Court papers filed by Baldwin allege that in 2005, the Academy Award-winning actress ignored court orders by not letting her ex-husband know she would be out of town working so that he could take care of their 10-year-old daughter until she returned. On one occasion, Basinger also did not tell Baldwin their daughter, Ireland, was injured and required medical help, according to the court papers. The girl's injuries were not specified. Basinger's attorney entered the pleas on her behalf to 12 misdemeanor counts of criminal contempt. The Academy Award-winning actress faces up to 60 days in jail and a $12,000 fine if convicted of all counts." AP, CNN.com. Link to Article (last visited 10-9-06 NVS)

Opinions on Grandparent Visitation

"Judges have been settling family disputes since King Solomon's proposed "solution" of splitting a baby in half in a custody battle. That Bible story has some parallels to how courts today grapple with demands of grandparents to visit their grandchildren over parental objections. Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case. The cases are heartbreaking because all involved a child who had lost a parent, and the surviving parent - whose fitness wasn't in question - wanted to limit visits." USA Today.com, Yahoo News  Link to Article (last visited 10-5-06 NVS)

"Though it is undoubtedly true that the rights of the parents in a grandparent visitation dispute are important, it is also true that they are not the only people whose rights and desires should be considered. Most states have some version of a statute that gives grandparents the right to seek visitation with their grandchildren, and this right should not be overlooked. There are many reasons that parents and grandparents find themselves unable to agree on visitation, and those reasons can have more to do with issues in the relationship between the grandparents and their adult children than with the quality of the relationship between grandparent and grandchild. It is naive to assume that parents who are not abusive or neglectful will always make the right decision where their children are concerned." By Traci Truly, USA Today.com Yahoo News Link to Article (last visited 10-05-06 NVS)

Case Law Development: Utah Upholds Constitutionality of Grandparent Visitation Statute

The Utah Supreme Court has upheld its grandparent visitation statute.  The statute does not require a showing of harm to the child, but does limit the circumstances in which grandparents may bring an action for visitation.  Those situations include "where a family has been divided by some turn of fate--death, divorce, loss of custody, a missing person, or a declaration that a parent is unfit or incompetent."   

The statute recognizes that when a family unit has been touched by these events a situation may arise where the child's interests differ from those of the parent. This is particularly true where the direct family line between grandparents and grandchildren has been severed, leaving the "in-law" relationship as the only remaining adult connection. Id. § 30-5-2(2)(c), (e), (f). Recognizing the potential for conflict in the relationship between the parent and the "in-law" and the resulting potential for interference with the grandparent-grandchild relationship, the statute provides an avenue for grandparents and grandchildren to maintain their relationship"

Court noted that the statute was not especially clear and urged the legislature to clarify the statute.

In re Estate of Thurgood, 2006 UT 46; 2006 Utah LEXIS 138 (Utah Supreme Court
August 25, 2006)
Opinion on the web (last visited August 27, 2006 bgf)

Case Law Development: Pennsylvania's Grandparent Visitation Statute Upheld

The Supreme Court of Pennsylvania has issued a thorough analysis of the constitutionality of its grandparent visitation statute, upholding the statute.  The opinion proivdes a catalogue of the state court opinions regarding whether a finding of harm to the child is necessary before grandparents can be given visitation, concluding that it would join those states that do not require such a finding.  A concurring opinion suggests that the time has come to analyze these cases from a child's rights perspective, providing a description of the historical development of children's rights and how that analysis should be applied in these cases.  One justice dissenting, arguing that a showing of harm to the child should be required.

All in all, a fabulous case for summarizing the current state of the law of grandparent visitation and the underlying policies driving the different approaches.

Hiller v. Fausey, 2006 Pa. LEXIS 1543 (August 22, 2006)
majority opinion
Justice Newman's concurring opinion
Justice Cappy's dissent  (last visited August 25, 2006 bgf)

Case Law Development: Third-Party Visitation in Washington State Survives Even Without Statutory Basis

The Washington Court of Appeals determines that, while Washington statutes no longer provide third-party visitation rights, right awarded under the statute prior to the Supreme Court's decision in Troxel could still be enforced.  In this case, step-father was awarded visitation with his stepdaughter in a 1998 parenting plan incorporated into a divorce decree.  When he sought to enforce those rights, the trial court ruled that he had no rights given a 2005 Washington Supreme Court opinion declaring that the third-party visitation statute was frought with too many constitutional problems to be enforceable without legislative action to correct its constitutional defects. (In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005)).  The Court of Appeal reversed, holding that a retroactive application of the C.A.M.A. case was improper given the the US Supreme Court's had held that the statute was not per se unconstitutional. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).  Moreover, the court held that even if no third-party visitation rights existed under Washington statutes,  equity principles provided an alternative ground for enforcing the stepfather's visitation rights. "It is well recognized, both in Washington and nationally, that child custody and visitation orders may be established by reliance on courts' equity powers and the common law."   The court referenced a recent Washington Supreme Court statement that a child's "fundamental right to a stable and healthy family life . . . include[s] independently valued protections of a child's relationship with siblings and with adults other than his or her biological parents with whom the child has formed a critical bond." In re Custody of Shields, 157 Wn.2d 126, 2006 Wash. LEXIS 495, (Wash. June 2006) (Bridge, J., concurring).

Anderson v Anderson, 2006 Wash. App. LEXIS 1691 (Div 2 August 8, 2006)
Opinion on the web (last visited August 10, 2006 bgf)

Case Law Development: New Jersey Supreme Court Decides Not to Decide Constitutional Right of Siblings to Visit One Another

The New Jersey Supreme Court vacated its grant of certification in a case in which the Law Guardian had asked the court to decide "whether the Division of Youth & Family Services or the courts have an affirmative duty to ensure that contact between siblings is maintained, even in a post-adoption context, when the siblings are in a separate home."  While the court noted that "we cannot underestimate the value of nurturing and sustaining sibling relationships" it concluded that there was no case or controversy before them as the child in question was afforded ample and regular visitation with siblings who had been adopted into a different home.  Rather, the court suggested that the topic was one the legislature should address:

The competing public policy concerns presented by the parties and amici curiae would benefit from legislative review. The state legislatures that have addressed the issue of sibling visitation after adoption have taken a variety of approaches. Thus, our Legislature may have an interest in addressing the issues discussed here. The Court expresses no opinion on the merits of the issues raised by the parties and amici curiae.

New Jersey Div. of Youth & Family Servs. v. S.S., 2006 N.J. LEXIS 1083 (July 18, 2006)
Opinion on Web

Case Law Development: Police Interference with Parent's Visitation Rights Did Not Violate Parent's Substantive or Procedural Due Process

The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes.  The case involved an ongoing custody and visitation dispute.  Father had sole custody of the son and Mother had visitation rights.  Police were regularly called upon to intervene when the parent's transferred the child.  In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time.  Father then called the police to assist in retrieving his son.  Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation.  The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment. 

In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.

The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."

The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "

As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.

Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars."  However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.

Brittain v. Hansen, 9th Circuit  No. 03-57012 (June 22, 2006)
Opinion on the web (last visited June 26, 2006 bgf)

Baldwin/Basinger Psychological Evaluations

"Alec Baldwin may have requested last year that his ex-wife,Kim Basinger, be forced to undergo psychological evaluation, but a Los Angeles court has instead ordered the 48-year-old actor to consult a therapist before he is allowed extra visits with his 10-year-old daughter, Ireland, L.A. City News Service reported Friday." By Natalie Finn, Yahoo News Link to Article (last visited 6-11-06 NVS)

Case Law Development: Nebraska upholds grandparent visitation statute

The Nebraska Supreme Court has upheld the constitutionality of its grandparent visitation statutes and affirmed a trial court's award of visitation to the children's paternal grandparents.  Under the Nebraska grandparent visitation statutes, grandparents can seek visitation only under certain circumstances: if the grandchild’s parent or parents are deceased, divorced or in the process of seeking a divorce, or have never been married but paternity has been legally established.  Moreover, a court is without authority to order grandparent visitation unless a petitioning grandparent can prove by clear and convincing evidence that (1) there is, or has been, a significant beneficial relationship between the grandparent and the child; (2) it is in the best interests of the child that such relationship continue; and (3) such visitation will not adversely interfere with the parent-child relationship.  The court concluded that these statutes are  narrowly drawn and explicitly protect parental rights while taking the child’s best interests into consideration so as to withstand strict scrutiny.

Hamit v. Hamit, 271 Neb. 659 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)

Case Law Development: Removing Child from Person With Whom Child Has Strong Attachment but No Legal Rights is Not Abuse

After their relationship ended, the former lesbian partner of Mother sought to continue contact with the seven-year-old daughter born during their relationship. When Mother denied visitation, Partner brought a dependency action, alleging that depriving the child of contact with someone with whom she has a primary or secondary attachment constitutes abuse. After a hearing, the trial court dismissed the petition, concluding that "depriving [the child] of contact with [her mother's partner], someone to whom the child has no legal connection, constitutes the level of abuse needed to support a finding of a dependency." In a brief opinion, the Florida Court of Appeals affirmed. D.E. v, R.D.B., 2006 Fla. App. LEXIS 8605 (June 2, 2006) Opinion on the web (last visited June 8, 2006 bgf)

Case Law Development: Child has No Standing to Modify Parenting Time

An eleven-year-old daughter filed an action to modify her parent's summer parenting time schedule to enable her to participate in certain sports and band programs.  Her attorney was employed by her mother and stepfather. The Kansas Court of Appeals noted that parenting time and visitation rights extend only to parents, grandparents, and stepparents and that any expansion of the categories of individuals who have standing to seek visitation rights should originate with the legislature.  Thus, the court held that a minor child has no legal standing to file a motion to modify visitation or parenting time in a divorce case.

In re Marriage of Osborn, 2006 Kan. App. LEXIS 522 (June 2, 2006)
Opinion on the web (last visited June 6, 2006 bgf)

Case Law Development: Parent Can't Harass Child By Trying To Visit

Here's an interesting juxtaposition of legal rights that almost slipped by me.  The Maine Supreme Court held that a father who continued to show up for visitation with his daughter, sent her notes, called her, and attended her school events was acting consistent with his court-ordered rights of visitation and shared parental rights and a trial court erred in entering a protective order on his daughter's behalf on the basis of harassment.  Daughter feared her father and did not want contact with him, but that was insufficient to prove harassment when father had a legal right to attempt to maintain the relationship. Wiley v. Wiley, 2006 ME 45  (May 1, 2006)

Opinion on the web (last visited June 4, 2006)