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High Court Limits Visitation Rights of Grandparents

Family: Judges must give 'special weight' to parents' wishes in suits over children, justices say in 6-3 ruling. The move casts doubt on similar state laws nationwide.


WASHINGTON — Parents, not judges or grandparents, have the "fundamental right" to decide what is best for their children, the Supreme Court said Monday, as it struck down a broad Washington state law authorizing a judge to order that a child be turned over to her grandparents for weekend visits.

The 6-3 ruling casts some doubt on the court-ordered grandparent visitation laws in every state.

Over the last 20 years, grandparents have been given the right to sue and win visitation orders over the objections of a parent, often a divorced mother. The laws do not require the suing grandparents to prove a parent unfit or to show that they played a part in raising the child. Typically, judges are asked to decide whether visitation would be in the "best interest" of the child.

Although the high court stopped well short of declaring all these laws unconstitutional, it warned local judges that they must give "special weight" to the wishes of the parents.

The Constitution "does not permit a state to infringe on the fundamental rights of parents to make child-rearing decisions simply because a state judge believes a 'better' decision could be made," Justice Sandra Day O'Connor said, speaking for the court.

Monday's ruling upholding parental rights won praise across the political spectrum, from the American Civil Liberties Union and the Lambda Legal Defense Fund on the left to the Family Research Council and the American Center for Law and Justice on the right.

The decision was the court's first on the issue of court-ordered grandparent visitation.

In practice, many judges are left to decide simply whether it would be in the "best interest" of a young child to spend an occasional weekend with grandparents.

Put that way, most judges say yes. In the Seattle-area case that reached the high court, a local judge sided with suing grandparents over a reluctant mother and said it is "normally in the best interest of the children to spend quality time with the grandparent."

Rejecting that open-ended approach, O'Connor warned judges that they must tilt the scales in favor of parents.

"In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect," she continued.

In the case of an intergenerational dispute, the decision as to what is best for the child "is for the parent to make in the first instance," added O'Connor, a 70-year-old who has five grandchildren.

Ruling Doesn't Nullify Other State Laws

Monday's decision does not nullify the so-called grandparents-rights laws in California and other states. "We do not, and need not, define today the precise scope of the parental due process right," O'Connor said.

But her opinion puts states on notice of the rights of parents in these cases. Grandparent visitation laws conflict with "the traditional presumption that a fit parent will act in the best interest of his or her child," she said.

O'Connor's plurality opinion was joined by Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer. Justice Clarence Thomas said that he would go further and bar states from "second-guessing a fit parent's decision regarding visitation with third parties." Justice David H. Souter agreed that Washington state's law "sweeps too broadly and is unconstitutional."

Legal experts on both sides of the issue said that grandparents who have cared for their grandchildren and acted as substitute parents should still be able to win visitation orders, even when a mother or a father strongly objects.

During the 1970s, the AARP cited such examples in arguing for the laws. In 1998, about 4 million children--or 5.6% of all children under age 18--were living in their grandparents' homes, the court noted.

But these are not the only grandparents who sue. Others have gone to court after they were cut off from seeing their grandchildren because of a death, divorce, separation or simply ill will within a family. These suits, rather than bringing together extended families, have sometimes led to long, costly and bitter court battles.

The laws themselves are flawed, some experts say, because they do not make clear who should prevail when a parent objects.

Most of these laws follow a model set by AARP and they give judges broad leeway to order visitations.

California's law, for example, says that a grandparent may seek "reasonable visitation rights" if a judge thinks it would be in the "best interest of the child." If parents are married and living together, they can block a visitation request.

No state appellate court has defined what the law means and, in practice, most judges decide based on what they think is best for a child.

'A Kind of Warning to Judges'

"Justice O'Connor has issued a kind of warning to judges. They need to be cautious about ordering visitation," said Joan Hollinger, a family law expert at the UC Berkeley Law School.

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