WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT GRANDPARENT RIGHTS
By Heather K. Denton
December 1, 2003
Under the common law, grandparents did not possess visitation rights concerning their grandchildren.[1] The child’s parents allowed grandparent visitation in response to moral and familial duties as opposed to legal requirements.[2] Yet in the latter half of the twentieth century, grandparents sought legal remedies as their role in the nuclear family unit assumed a new form.[3]
American society experienced a dramatic paradigm shift resulting from a rapidly increasing divorce rate and the acceptance of single parenting.[4] Reduced social stigma regarding out-of-wedlock children also contributed to the changed ideas concerning the traditional family. But as society replaced the traditional nuclear family with one consisting of a single parent and children or even one that included step-family members, the needs of the immediate family remained the same. Children continued to need rides to school, assistance with homework, nutritional meals, and unconditional love and support. In other words, the workload remained the same though the single parent operated without the assistance of a spouse. Grandparents responded to the adult parent’s need for help by providing childcare and assistance with everyday life. Consequently, grandparents became more intertwined in the daily lives of their grandchildren, often assuming roles similar to that of a parent.[5]
Other factors have also augmented increased involvement with grandchildren. Increased mobility in transportation has encouraged family visits.[6] Technological advancements such as e-mail and cellular phones have promoted the notion of instant communication at any time or location. A 1998 study conducted by the AARP regarding heightened participation by grandparents in grandchildren’s lives concluded that “most grandparents see their grandchildren regularly and connect in a number of ways. The relationship is a rewarding one.”[7]
Grandparent visitation statutes emerged to accommodate the idea that grandparents, in their newly discovered role of increased involvement, should have legally protected access to their grandchildren.[8] Yet the question remains, what rights do grandparents possess?
Presumptions
When presented with an application for grandparent visitation, the court will approach the application with a set of presumptions. The most dominant principle is that the law favors the natural parent over a third party.[9] This presumption reigns unless the petitioning party demonstrates clear and convincing evidence of possible harm to the child or that the parent is unfit.[10] Thus these, over-riding factors necessitate a different result.[11]
In Grover v. Smith, the court confirmed the law’s presumption in favor of the natural parent, given that the natural parent is fit and available. In this case, Richard and Angela Grover divorced in 1978. Angela and her daughter, Brenda, moved in with Angela’s parents, the Phillips. Angela died in 1979, and the Phillips commenced adoption proceedings in 1981. Richard, who had not contacted his daughter since the divorce, refused to consent to the adoption and sought custody of his daughter. In evaluating both the homes of the grandparents and of Richard, the trial court concluded that “either home would be suitable for Angela.”[12] The Oklahoma Supreme Court found for Richard, saying, “The law favors the natural parent over another unless there are over-riding factors both clear and convincing to the Court.”[13]
Continuing the explanation, the court emphasized that the child’s welfare was of highest concern, followed by the rights of the parents, while the interest of third parties, such as grandparents, who “discharged all of the obligations of the parents” ranked only third in the list of priorities.[14] This holding reiterated the intent of Okla. Stat. tit. 10 § 21.1 (1983) Preference Order for Custody or Guardianship, which the legislature enacted one short year before the Grover decision.[15] Section A states:
Custody should be awarded or a guardian appointed in the following order of preference according to the best interests of the child to: 1. A parent or to both parents jointly . . . 2. A grandparent; 3. A person who was indicated by the wishes of a deceased parent; 4. A relative of either parent; 5. The person in whose home the child has been living in a wholesome and stable environment including but not limited to a foster home; 6. Any other person deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.[16]
This statute delineates the order in which the court should rank people when considering to whom it should award custody.[17] The statute lists parents before grandparents, indicating that lawmakers preferred for parents to raise their children, rather than any third party, including the child’s grandparents. Therefore, courts have upheld the presumption favoring natural parents as found in statutory law.
In The Application of Smith, the court awarded custody to the step-father over the grandparents under the provisions of the same statute.[18] In this case, the court focused on the phrase “according to the best interests of the child” as well as number three, the wishes of the deceased parent, according to the order of preference. Before her death, the mother expressed her desire for the step-father to assume custody of the child. Moreover, the step-father provided a good home, and the child wanted to live with the step-father. The court concluded that when neither party is a natural parent, the natural parent presumption remains intact, but other factors [such as the best interest of the child, who has an established relationship with the child, etc] must be considered as well.[19]
Okla. Stat. tit. 10 § 21.1 and the cases of Grover and Smith demonstrate that both the courts and the legislature explicitly prefer parents over grandparents. When a court can choose either the parents or the grandparents, the court will favor the parents. Thus as applied to the issue of visitation, an attorney representing a grandparent seeking to petition for visitation should inform the grandparent that the law favors the parent/child relationship over the grandparent/grandchild relationship. Before a grandparent can receive visitation, the grandparent must demonstrate over-riding factors, such as harm to the child or parental unfitness, by clear and convincing evidence before the court will grant visitation.[20]
Who is a Grandparent?
Okla. Stat. tit. 10 § 5 (2003) provides for grandparent visitation rights.[21] However, the statute fails to expressly identify or define the meaning of grandparent. The section simply identifies when and how a grandparent can receive visitation rights.
Traditional notions of who is a grandparent follow the definition provided by the 1983 edition of Black’s Law Dictionary: "the father or mother of either of one's parents."[22] The 1999 version of the dictionary does not contain a definition of the term grandparent, but it does offer additional insight in defining the term ascendant. Black’s defines ascendant as “one who precedes in lineage, such as a parent or grandparent.”[23] The combination of the two definitions implies that a biological connection must exist. A genetic relationship is a necessary component to having parents and a lineage. Thus, at first glance, it appears that a grandparent must possess a biological link to the grandchild to satisfy the traditional notion of a grandparent. Yet, this analysis ignores the legal relationships formed by adoption.
Oklahoma case law suggests that a biological connection alone falls short in satisfying the requirements of grandparentage. In Application of Walker, the Oklahoma Court of Appeals discusses the issue of who qualifies for grandparent status under a complex set of facts.[24] In 1958, a young girl (“natural mother”) bore a son (“son”) out of wedlock in the state of Georgia. The natural mother permitted her parents to adopt her newborn son.[25] The son resided with his natural grandparents (adoptive parents) for the first twelve years of his life. At this point, the natural mother moved to Oklahoma and married, and four months later her son chose to live with her and her husband. Seven years later in 1979, the son married. Within a short time, the daughter-in-law moved in with “natural mother” when the son entered the military. The daughter-in-law gave birth to a girl while living with her husband’s natural mother. Relationally, the girl was the legal granddaughter of the natural mother’s parents while biologically she was the granddaughter of the natural mother and the great-granddaughter of the natural mother’s parents. In 1986, the son and daughter-in-law divorced, and the son voluntarily terminated his parental rights to his daughter. In 1991, the natural mother commenced an action to gain grandparent visitation rights as the girl’s “biological grandmother” under 10 O.S. 1991 § 5.[26] The trial court dismissed her application. The appellate court affirmed the dismissal, saying that under both Georgia and Oklahoma law “an adoption severs all legal connection between the adopted child and her natural parents.”[27] Because the adoption severed the legal parental relationship between the natural mother and her son, “[natural mother] cannot qualify as [girl’s] grandparent for purposes of grandparent visitation.”[28] The Walker case specifies that one must have a legally recognized grandparent relationship with the child before the court will grant visitation.[29]
Additionally, the Oklahoma legislature recently amended the grandparent visitation statute to include great-grandparents, thereby expanding the group of people who qualify as a grandparent.[30] Therefore, in Oklahoma under Okla. Stat. tit 10 § 5, people who possess the traditional blood relationship and possess legal standing as grandparent or great-grandparent can qualify as a grandparent for purposes of grandparent visitation. In the case of adoption, one must simply maintain legal standing as grandparent or great-grandparent.
Grandparent Visitation
Two cases set the foundation for grandparent visitation rights in Oklahoma: The Matter of Herbst,[31]decided by the Oklahoma Supreme Court, and Troxel v. Granville,[32] decided by the U.S. Supreme Court. In each case, the respective court held that a particular grandparent visitation statute was an “unconstitutional infringement on [the parent’s] rights to the custody and management of their minor child”[33] and that a finding of parental unfitness or harm to the child was necessary before the courts could award grandparent visitation.[34]
In the case of Herbst, the maternal grandfather, Herbst, sought visitation with his grandchild under 10 O.S. Supp. 1996 § 5. The child’s parents were married to each other, and they objected to any visitation by the grandfather. The statute provided, “Pursuant to the provisions of this section, any grandparent of an unmarried minor child shall have reasonable rights of visitation if the district court deems it to be in the best interest of the child. . . .”[35] Herbst did not allege that the child was “inadequately cared for” or in harm in the “intact family environment.” He simply believed that visitation served the child’s best interests.[36] The trial court dismissed his petition, saying that the statute “was unconstitutional as applied to the facts of this case.”[37] Both the Court of Civil Appeals and the Oklahoma Supreme Court affirmed, proclaiming the “invoked statute to be unconstitutional as applied to an intact nuclear family in which grandparental visitation is opposed by both parents.[38]
In Troxel, Granville, the children’s mother, opposed the overnight visitation requested by the children’s paternal grandparents, the Troxels. Granville and the Troxels’ son Brad had two daughters but the couple had never been married. After their relationship ended, Brad lived with his parents in their home. The girls visited the Troxels’ home on weekends. Brad committed suicide, and Granville continued to permit the Troxels to visit her children.[39] However, she later decided to limit the visits to one per month. The Troxels petitioned for increased visitation rights under Wash. Rev. Code § 26.10.160(3), whereas Granville desired limited visitation. The statute read, “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the bests interests of the child whether or not there has been any change of circumstances.” The Superior Court granted visitation for less time than desired by the Troxels but for more time than desired by Granville. Meanwhile, Granville’s new husband adopted her daughters. The Washington Court of Appeals remanded, and “the Superior Court found that visitation was in [the children’s] best interest.”[40] The Washington Court of Appeals reversed,[41] and the Washington Supreme Court affirmed the Appellate Court.[42] The U.S. Supreme Court affirmed the unconstitutionality of the statute as applied. At the very least the grandparent needed to show harm to the child or parental unfitness.[43]
Constitutionally Protected Parental Rights
Historically, the U.S. Supreme Court has recognized that the issue regarding parents in the “care, custody, and control of their children” is a fundamental liberty deserving protection.[44] In the case of Meyers v. Nebraska, the court found that the Due Process Clause protected parents’ ability to raise children and control their children’s education.[45] Pierce v. Society of Sisters affirmed that “the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control.”[46] The case of Prince v. Massachusetts summarized the court’s message by saying, “ . . . in recognition of this [fundamental right] these decisions have respected the private realm of family life which the state cannot enter.”[47]
Both the Oklahoma Supreme Court and the U.S. Supreme Court held that the respective statutes violated the constitutional rights of parents.[48] The Herbst court highlighted the fact that the statute as written “clearly divests parents of the right to decide what is in their child’s best interest and gives that determination to the district court.”[49] A court decision forcing parents to allow a third party into the nuclear family restricts the parents’ liberty to govern their children; the statutes remove the decision from the parents and give it to the court.[50]
It is difficult to conceive of a situation in which the court would desire to limit a parent’s ability to limit contact with a person of unscrupulous character who would serve only to harm the child. Simply because the person with whom the parent desires to limit their child’s visitation is commonly viewed as a loving, doting person should not impact the parent’s liberty to make that decision. This is the value the courts chose to protect: the parents’ interest in the care, custody, and control of their children.[51] When a court allows grandparent visitation over the objection of parents, it violates the parents’ constitutional rights. Consequently, when fit parents object and the child will not experience harm, courts will not grant grandparent visitation.
Necessity of Harm or Unfitness
After establishing that parents enjoy a fundamental right as to who contacts their children, both courts continue their analysis by establishing when a court can constitutionally intervene and grant visitation to grandparents. The state can intercede and encroach upon the parents’ protected rights when harm to the child or parental unfitness escalates to a compelling level.[52] Further, when the parents’ choice would produce harm to the child, “it is the state’s responsibility to exercise its police power to protect the child.”[53]
Traditionally, the law presumes that fit parents will make decisions favoring their child’s best interests. Allowing a court to intervene and assume the role of decision-maker without proof of harm to the child or of parental unfitness directly contradicts this presumption.[54] Further, the court cannot intervene simply because it believes it can make a better decision than the parent.[55] The determination of harm or potential harm is not a comparative analysis; rather the court should establish harm by objectively evaluating the parents’ decisions alone, not compared to the world of other potential decisions.[56] Provided the parents sufficiently care for the child, the State maintains no reason to invade the constitutional rights of parents by mandating grandparent visitation.[57]
Best Interest of the Child Standard
In both Troxel and Herbst, the grandparents argued that the court should allow visitation because it serves the grandchild’s best interests.[58] Okla. Stat. tit. 10 § 5(A)(1)(a) allows grandparent visitation if the district court deems it to be in the best interest of the child. As is the case in determining harm, when a parent “adequately cares for his or her child” a court cannot invade the private realm of the family simply because it can make a better decision.[59] The state does not enjoy a broad general power to “make things better.”[60] Therefore, Herbst rejected an immediate best interest analysis and said that the court can engage in the best interests of the child discussion only after determining that the child will suffer harm or that the parent is deemed unfit.[61]