Troxel v. Granville 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000) held that there is a presumption that a fit parent''s determination regarding visitation is in the best interests of the child and that, if that decision becomes subject to judicial review, courts must accord at least some special weight to the parent''s determination. The visitation statute of one state was found to be unconstitutional, another unconstitutional as applied, and one provision of a third state's statute failed to pass constitutional muster. In all cases, the courts emphasized that state legislatures must replace the presumption that grandparents have a right to visitation with a presumption that parents know what is best for their children.
Michigan: DeRose v. DeRose (Mich. Ct. App., No. 23278021, Jan. 25, 2002).
The Michigan Court of Appeals holds that Michigan's grandparent visitation statute is unconstitutional.
A trial court granted visitation to a child's paternal grandmother after the parents divorced. The child's mother objected. The theme of the trial court's decision was that 'grandmothers are important' and there is no reason the child should be deprived of a grandmother. The mother appealed.
Michigan's visitation statute authorizes a judge to issue a visitation order to a grandparent whenever the judge deems it to be in the best interests of the child. In fact, the statute mandates the trial judge to issue such an order once the judge finds that grandparent visitation would be in the best interests of the child.
The Michigan Appeals court found that while in terms of standing to file a visitation petition, Michigan's statute is narrower in scope than the Washington statute that was at issue in Troxel, the Michigan statute is not narrower once a petition is before the trial court. 'It is precisely this lack of legislative guidance that renders the statute fatally flawed,' the court writes. ' . . . The lack of any standards in the Michigan statute beyond 'the best interest of the child,' and specifically the failure of the statute to afford any deference to the custodial parent's decision, renders the Michigan statute unconstitutional as written.'
Connecticut: Roth v. Weston (Conn. App., SC 16565, Jan. 29, 2002).
A Connecticut appeals court finds that the state's grandparent visitation statute is unconstitutional as applied.
Following a mother's suicide, the maternal grandmother and aunt sought visitation with the father's two young children. The father objected. The trial court granted visitation and the father appealed, claiming that in light of Troxel, Connecticut's visitation statute (§ 46b-59) is either facially unconstitutional or unconstitutional as applied.
Connecticut's statute contains an implicit rebuttable presumption that visitation that is opposed by a fit parent is not in the child''s best interest, and that to override a parents' wishes in this area a petitioner must demonstrate by clear and convincing evidence that he or she has a relationship with the child that is similar in nature to a parent-child relationship and that denial of visitation will cause real and significant harm to the child, analogous to the type of harm contemplated where a child is alleged to be neglected, uncared-for or dependent.
The Connecticut Appeals court rules that the statute is unconstitutional as applied to the extent that the trial court permitted third-party visitation contrary to the desires of a fit parent and in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual, significant harm if deprived of the visitation.
Alabama: Ex Parte State of Alabama (Ala. Civ. App., No. 2000713, Jan. 29, 2002).
The Alabama Court of Civil Appeals finds that only one provision of the state's grandparent visitation statute is unconstitutional.
Following a couple's divorce, paternal grandparents sought visitation with two children in the mother's custody. On March 15, 2001, the trial court entered a judgment declaring Alabama's visitation statute, which contains a presumption in favor of grandparent visitation, facially unconstitutional and denying the grandparents'' petition for visitation. Only the State appealed.
The Court of Civil Appeals of Alabama rules that the trial court erred in finding that statute facially unconstitutional. While the statute's presumption in favor of grandparent visitation is unconstitutional, the court concludes that the remainder of the statute is enforceable because it provides a standard upon which the court may rely in determining when and under what circumstances to award visitation. In particular, the requirement that the courts consider "other relevant factors" allows the courts to give great weight to a parent''s decision regarding visitation.
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