Grandparents’ visitation rights

by Judge Steve Halsey, Wright County District Court

A Twin Cities talk radio host jokes that Minnesota is “the state where nothing is allowed.”  By that he means that we have far too many laws.  I make no comment on that opinion.  When you read this article you may wonder, ”Why do we need a law allowing grandparents to visit their grandchildren?  Why would any parent refuse to allow Grandma and Grandpa to visit the grandkids?”

One need only watch a few family court hearings to conclude that the reality of family life in Minnesota in 2013 is far removed from the fictional television families on Ozzie & Harriet, Father Knows Best, The Cosby Show, or even Fresh Prince of Belair.  Today many families include children who are half-siblings, parents that are divorced or were never married, and parents who are estranged from their own parents.  The various reasons for the estrangement are too numerous to mention.  The result is that some parents refuse to allow their own parents to visit their children, that is, the grandchildren.

Minnesota law provided a statutory remedy in 1976, which now provides, in part, as follows:

The court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried minor child, after dissolution of marriage, legal separation, annulment, or determination of parentage during minority if it finds that: (1) visitation rights would be in the best interests of the child; and (2) such visitation would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

Minn. Stat. §257C.08, subd. 2.

Grandparents can petition the court for an order allowing them to have visits with their grandchildren.  These hearings generally involve sworn testimony by the parties, other lay witnesses, and sometimes the child’s counselor or therapist.  Sometimes, the judge will interview the child.  In order to grant visitation with grandparents the court must find that visitation is in the best interests of the child and that such visitation would not interfere with the parent and child relationship.

There could be a number of reasons why visitation would not be allowed:

1. The grandparent has a history of physical or sexual abuse of their own children or other children;

2. The grandparent has a history of chemical abuse or other behavior dangerous to children;

3. The relationship between the grandparent and their own child is so “toxic” that the children would be put at risk.  For example, the grandparent has in the past failed to follow the parent’s reasonable rules regarding diet, hygiene, recreational activities, supervision or discipline while the child was in the grandparent’s care.  Also, the grandparent has said critical things about the parent to the child in the past.

Prior to being a judge I was involved as a lawyer in several cases in which the grandparent’s behavior was so outrageous that further contact with the child was ordered supervised or terminated altogether.  In one case the grandparent coached the child to falsely tell law enforcement that the child’s stepfather had abused the child while living in another state.   An interview of the child by County Social Services discovered the falsity of the child’s statements and the grandparent’s motion to keep the child in Minnesota was quickly dismissed by the court and the child returned to the parent in another state.  The whole process was extremely heart-breaking to the falsely-accused step-parent and financially and emotionally hard on the parent.  Not every grandparent is a nice person or has the child’s best interests in mind when seeking visitation.

In summary, in all such cases the primary decision is whether visitation is in the best interests of the child.  Children need certainty and stability in their lives and they should not be actively involved in any court proceedings.  It is very important that the child is not asked to express their preference unless they are a mature teenager with a court-appointed guardian ad litem.  If you hear a grandparent complain they aren’t allowed to visit their grandchild, try to keep an open mind.  Usually, family dynamics are more complicated than they appear on the surface.

  • Jennifer Wright

    This Minnesota statute, at least as interpreted above, would clearly be found unconstitutional under the standard laid down in Troxel v. Granville, 530 US 57 (2000). The state cannot interfere with parents’ fundamental constitutional right to rear their children absent a showing of specific harm to the child. The courts can’t interfere with parents’ decisions about grandparent visitation based simply on the courts’ notion of the best interests of the child.

    Troxel v. Granville,at page 58:
    “There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see, e.g., Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1. The problem here is not that the Superior Court intervened, but that when it did so, it gave no special weight to Granville’s determination of her daughters’ best interests. More importantly, that court appears to have applied the opposite presumption, favoring grandparent visitation. In effect, it placed on Granville the burden of disproving that visitation would be in her daughters’ best interest and thus failed to provide any protection for her fundamental right.”

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