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It is estimated that since 2011 there are as many as 2.7 million grandparents raising grandchildren in the United States.1 The reason for this varies. Many factors drive the increase in grandparents serving as the primary caregivers for grandchildren. Grandparents are saddled with raising grandchildren when a parent is unavailable due to death, illness, incarceration, or abandonment.
Every state in the country recognizes some variation of the visitation rights of grandparents and, generally speaking, these laws permit grandparents and other non-parent relatives to seek visitation. Most jurisdictions require the grandparent or non-parent relative to join the ongoing divorce proceedings or to file an independent petition for visitation if there are no divorce proceedings. Each state has guidelines for permitting grandparents to visit with their grandchildren with the goal of the grandchild maintaining contact with the grandparent when such contact is in the best interest of the minor child. There are states that have passed more permissive visitation statutes, and there are states that have more restrictive statutes.
States that have more restrictive statutes include but are not limited to Alaska, Colorado, Illinois, Indiana, Maine, Massachusetts, Mississippi, Missouri, Nevada, Ohio, Utah, and Vermont. In these and other states grandparents are only permitted to petition the court for visitation if the parents have divorced or if one or both of the parents is deceased or is otherwise incapacitated. In states like California and Washington, a grandparent can petition for visitation even when both parents are alive and not incapacitated.
CORNERSTONE CASE
Courts have long held that parents under the U.S. Constitution have a fundamental right to parent their children as they think best. The passing and then enforcement of state visitation statutes have resulted in litigation over this fundamental right. The cornerstone case on this issue is the 2000 case of Troxel v. Granville, 530 U.S. 57.2 This case arose out of the interpretation and enforcement of the Washington visitation statute. The grandparents petitioned the Washington court for "more" visitation with the grandchild after the child's mother limited their visitation to one visit per month and some holidays. The U.S. Supreme Court took issue with the Washington visitation statute as it permitted Washington judges to grant visitation if the judge determined that the visitation was in the...