Who has the right to visit a child?

High court hears case today on grandparents' rights to see grandkids -

Do parents have the sole right to determine who their children see and visit? Most folks would answer, yes.

But in a rare venture into the field of family law, the US Supreme Court is set to hear a case this morning that may carve out an important exception - for grandparents.

At issue is whether the Washington State Supreme Court made a mistake when it ruled that parents in that state have a nearly absolute right to restrict their children's access to anyone, including grandparents.

The state court ruled that parents can bar grandparent visitation even when a neutral judge has determined that such contact would be in the best interests of the children.

The case has potentially wide-ranging implications, not only for advocates on both sides of a debate that pits parents' rights against grandparents' rights, but also for an emerging area of law that seeks to establish that children themselves have their own rights, rights that may supercede those of their parents.

It isn't just a theoretical debate. Although the stakes in the Supreme Court case are substantially lower, the case raises the exact legal issue looming in the debate in Miami over six-year-old Elian Gonzalez.

In Elian's case, the US Immigration and Naturalization Service has determined that the father has the sole legal right to decide whether the son should return to Cuba. But an active opposition campaign and an injunction issued by a state court judge appear to have opened the door to a possible reconsideration of Elian's status.

Legal experts say that Elian's relatives in Miami do not have legal standing to ask a judge to keep him in the US. Thus, the only recourse under US law would be for a judge to determine that staying in America would be in Elian's best interests. Such a ruling would set a major precedent, substantially undermining rights of American parents while recognizing for the first time that a six-year-old boy, backed by an American judge, could effectively overrule his own father.

On the other hand, the Washington State case involves efforts by third parties (grandparents) to overrule a decision made by parents about their children.

The case involves two girls, Natalie, 10, and Isabelle, 8, and an effort by their grandparents, Jenifer and Gary Troxel, to see them on a regular basis. The girls' father and the Troxels' son, who had never married the girls' mother, committed suicide several years ago.

When efforts to arrange regular visitation ended in argument, the Troxels sued the girls' mother, Tommie Granville, under a Washington State law that permits visitation when a judge rules it would be in a child's best interests. The mother had married a man with several children and claimed that arranging a visitation relationship with the grandparents would be too complicated and time consuming.

The judge ruled in the Troxels' favor, but the state Supreme Court overturned, deciding that parents have a right to decide who their children may see.

The ruling struck a chord with some analysts who believe the government has no business telling parents how to raise their children, provided the children are facing no possibility of harm from the parents' decisions.

But others counter that when a parent refuses to permit grandparents to see their children, they are harming them by depriving them of a loving relationship that helps children become happy, caring adults.

"Children depend on role models in their formative years to develop well-rounded personalities, and the absence of role models can have profound consequences for the emotional stability of children," says a legal brief filed by The Grandparent Caregiver Law Center at Hunter College in New York.

"We are not questioning parents' rights to raise children," says Rochelle Bobroff of the AARP Foundation Litigation in Washington, which filed a friend-of-the-court brief in the case. "States historically have passed laws to protect the welfare of their youngest citizens, such as requiring school attendance or wearing bicycle helmets," she says.

Catherine Smith, a Seattle lawyer arguing the case for the mother, says, "Others say such decisions should remain within the privacy of a family to debate and resolve without interference from judges and government officials. As a society we have to realize that we have to leave some decisions outside the realm of the court and this is one of them. The situation in this case was very tragic but it was not made any less tragic by the fact that these grandparents sued. This is no way to run a family."

Ms. Smith says the problem with some grandparents' rights laws is they encourage grandparents to sue rather than work out disputes within the family.

Grandparents' rights proponents counter that granting the opportunity for children to see their grandparents isn't a serious intrusion into parents' constitutional right to family privacy, and may itself be somewhat protected. "We do not contend that grandparents have a constitutional right to visitation orders," writes Mark Olson, Seattle lawyer for the Troxels. But, he adds, "The parent-child relationship is not the only constitutionally significant interest at stake in cases such as this. The relationship between a grandchild and grandparent is also an important part of family life."

Ms. Bobroff says that while such grandparent-visitation cases are becoming more common with visitation laws in all 50 states, they nonetheless remain the rare exception in the US. The good news, she says, is that "most grandparents have very strong relationships with their grandchildren and have no need for courts to order visitation."

(c) Copyright 2000. The Christian Science Publishing Society

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