Supreme Court lets stand grandparent-visitation decision

A grandmother in Pennsylvania has won her bid to force her son-in-law to allow more frequent visits with her grandson in a legal dispute that some analysts had seen as a potential important test case for parents' rights.

On Monday, the US Supreme Court declined to take up the case to examine whether such grandparent visitation orders violate the fundamental rights of parents to raise their children free from government interference.

A lawyer for the father in the Pennsylvania case had asked the high court to consider whether some family-law judges and state supreme court justices are giving short shrift to parents' constitutional rights by second-guessing and overruling parental decisions in such visitation cases.

State supreme court justices are sharply divided on which legal standard should govern such cases, the lawyer says.

The high court's decision not to take the case means that judicial rulings dealing with parental rights and grandparent visitation requests will continue to be governed by legal standards and approaches that differ substantially from state to state.

The Supreme Court issued a one-line order with no explanation of its decision not to take up the case.

The issue arose in the case of a father who had been ordered against his wishes to facilitate greater contact between his son and his mother-in-law.

At issue was whether the Pennsylvania Supreme Court and other judges violated the constitutional right of Shane Fausey to raise his child free of undue government interference when the judges rejected his authority as a father to determine the appropriate level of contact between his son and the boy's grandmother.

The controversy arose after Mr. Fausey's wife died. The grandmother, Cheryl Hiller, had helped care for her grandson during her daughter's illness and was upset at the relatively infrequent contact with her grandson after her daughter's death. She sued. After a two-day trial, the court ordered Fausey to make his son available for one overnight weekend visit per month and one week each summer.

Fausey's lawyer, Howard Bashman of Willow Grove, Pa., said in his brief to the high court that the state supreme court used the wrong standard to decide the Fausey case.

Pennsylvania judges decided the case based on what they believed would be in the best interests of the child. But Mr. Bashman says they should have enforced a judicial test that accords more respect for a parent's constitutional rights.

A fundamental constitutional right means that a parent retains the ability to sometimes be wrong and make mistakes in private internal family matters without being second-guessed and overruled by a judge, say parents' rights advocates.

Instead of attempting to decide what might be in the child's best interest, the court should have based its decision on whether the father's actions would cause harm to the child, Bashman said in his brief.

State supreme courts are divided over whether to rely on the "best-interests-of-the-child" standard or the more rigorous "harm" standard. Thirteen states have adopted the harm-to-the-child standard, while 12 have embraced the best-interests-of-the-child approach, Bashman said.

Lawyers for the grandmother dispute the existence of a deep division among state judges. They said there is no real distinction in Bashman's best interests versus harm argument.

“Adoption of a bright-line rule requiring a showing of harm for all grandparent visitation orders would undermine the states’ ability to evaluate cases on their individual facts,” wrote Philadelphia lawyer, Mark Momjian, in his brief on behalf of Ms. Hiller.

Judicial reliance on the best-interests-of-the-child standard stems from divorce cases where judges frequently must decide issues contested between two parents fighting over their child. In the context of a divorce, both parents enjoy fundamental rights to raise their child but because of the ongoing dispute the judge adopts the best-interests-of-the-child approach to resolve the impasse.

In contrast, a grandparent visitation dispute is a clash between a parent with a fundamental right to direct the care and upbringing of his or her child, and a grandparent who does not enjoy a fundamental right, parents’ rights advocates say.

Parents are facing “increasingly intrusive demands of the modern state to micromanage the American family,” wrote Benjamin Bull in a brief filed on behalf of the Family Research Council. ”When courts cross-apply the ‘best-interests-of-the-child’ standard to the much different context of a dispute between a parent and a non-parent…, they necessarily cross into the territory of the state potentially substituting its judgment for that of the only litigant holding a fundamental right to direct the child’s upbringing.”

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