In the United States’ early years, it was common for multiple family generations to live together, enabling close, enduring family bonds that remained strong even when disputes arose. Over time, family structures changed. No-fault divorce spread nationwide in the 1960s, making marital splits more common. Concerned with the impact of divorce on the nuclear family, state legislatures began expanding who could request custody or visitation rights.
Grandparents today are living longer and often play an increasingly significant role in their minor grandchildren’s lives. Their role has changed not only through their own health and longevity but also because of higher rates of both parents working, and intergenerational families no longer residing together anywhere near as much as in the past. According to the U.S. Census Bureau, in 2021, grandparents were more likely to be responsible for their grandchildren for five years or longer (49.3%) compared to 2012 (39.3%). Toward the end of the twentieth century, similar increases resulted in all 50 states acknowledging the importance of grandparents in their grandchildren’s lives with the passage of statutes codifying visitation rights to grandparents.
In many states, grandparents’ right to petition the court for visitation is triggered by their own adult child’s death, divorce, legal separation, parentage or custody proceeding. States have struggled with the tension between grandparents’-rights statutes and a parent’s constitutional right to make parenting decisions.
Troxel v. Granville
At the forefront of the conversation about grandparents’ rights is Troxel v. Granville, a 2000 Supreme Court case memorializing a fit parent’s right to parent his or her child free of government interference.
In Troxel, paternal grandparents Jenifer and Gary Troxel sought visitation with their late son’s two daughters. The Troxel's filed their petition after the children’s mother limited visitation to once a month. At that time, the third-party visitation statute in Washington state read, “[a]ny person may petition the court for visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change in circumstances.”
Courts are likely to see a sharp rise in grandparent-visitation cases over the coming decades."
The trial court granted the Troxel's visitation for one weekend per month, one week in the summer and four hours on each grandparent’s birthday. Tommie Granville, the children’s mother, appealed, and the Washington Court of Appeals reversed. When the Washington Supreme Court affirmed, the Troxel's appealed to the U.S. Supreme Court.
Troxel held that Washington’s grandparent-visitation statute was unconstitutional for being “breathtakingly broad,” noting that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childbearing decisions simply because a state judge believes a ‘better’ decision could be made.” Even though Granville’s fitness as a parent was never in dispute, the Washington statute placed the burden on her to prove that visitation was not in the child’s best interest. The Court rejected this assignment of the evidentiary burden and demanded a presumption that fit parents act in their children’s best interests—or, at least, that special weight be given to the fit parent’s determination.
Visitation Statutes After Troxel
In the two decades since the Court’s decision, many states amended their grandparent and third-party visitation statutes to comport with Troxel’s holdings. This led many of them to “save” the constitutionality of their grandparent-visitation statutes by requiring a presumption in favor of a fit parent’s decision (or that special weight be given to same) and requiring grandparents to rebut this presumption by making certain showings.
Alternatively, other states maintained their pre-Troxel grandparent-visitation statutes. For some, merely finding that visitation is reasonable, and, in the child’s, best interest is sufficient for a grandparent to obtain visitation following a parent’s passing, even absent a presumption in favor of a fit parent.
Treading Gently Post-Troxel
In light of the burden that grandparents must shoulder in most state courts to obtain visitation rights, it’s advisable for them to consult with a knowledgeable, seasoned lawyer, whose guidance they should carefully weigh. If, as in Troxel, some grandparent visitation is willingly being offered, that olive branch might well be withdrawn after a visitation petition is served. It might be more productive to attend mediation to negotiate a schedule that can be reduced to a court order before petitioning the court. Some states have a less-intrusive concept known as a “grandparenting time expediter,” who can function in a mediation or arbitration role over grandparent visitation to address concerns about interference with the parent-child relationship. Creative solutions can and should be explored.
In sum, the importance of grandparents in their grandchildren’s lives has been enshrined in state statutes—albeit much more carefully in Troxel’s wake—and with parents’ due-process rights in clear focus. Courts are likely to see a sharp rise in grandparent-visitation cases over the coming decades. For grandparents, asserting visitation rights in court is not easy. It’s best for them to attempt to hold their place in their grandkids’ lives peaceably, through alternative dispute resolution, if grandparent-to-parent negotiations fail. If court is the sole remaining option to maintain visitation, grandparents must gird for an uphill—yet winnable—battle, especially after Troxel.
Victoria Brenner is a partner in Taft’s Domestic Relations group. For more than 15 years, she has provided trusted support to clients and their dependents going through separations and divorces. Victoria has significant experience handling custody, parenting time, child support, orders for protection, alimony, divorce and post-divorce matters for both medium and high-net-worth individuals.
