Justin Reimer | November 7, 2012 | SHARE: 
Relationships between grandparents and grandchildren are often mutually beneficial. Many grandparents are very involved in North Carolina families’ day-to-day lives. Over 187,000 grandparents live in the same household as their minor grandchildren, and half of these grandparents are legally responsible for their grandchildren. When relationships between grandparents and grandchildren are limited or severed by parents who disallow visitation, some grandparents resort to court intervention to attempt to restore these relationships. As discussed below, North Carolina allows such petitions under limited circumstances, and some members of the legislature have proposed allowing grandparents to petition the courts for visitation against the wishes of intact families. But is it good public policy to expand grandparent visitation beyond what the law currently allows? Psychologist David A. Martindale cautions that “the incalculable emotional benefits to children that are derived from their interactions with members of their extended family are only realized when the relationships between the extended family and the nuclear family are reasonably harmonious.”
Parents possess a fundamental right to direct the custody, care, and control of their children. The U.S. Supreme Court has repeatedly affirmed that this parental right is a constitutionally protected liberty under the Fourteenth Amendment. Parents have broad discretion in making decisions regarding the upbringing of their children, which include direct ing a child’s educational path and determining with whom the child will associate. The Court has only allowed governmental interference into the parentchild relationship in very limited circumstances, which involve potential or actual harm to the health or welfare of children. For instance, under the parens patriae doctrine, the state may remove a child from parental custody due to abuse or neglect. The recognition of this broad parental right to direct the care, custody, and control of children corresponds to the duty society places on parents to prepare children for life.
Traditionally, grandparents did not have the right to visitation with their grandchildren. No such right is to be found in the Constitution, nor was it recognized in common law. Thus, if parents did not want to allow grandparent visitation, they could make this choice without the courts secondguessing their decision. Today, this constitutionally protected parental liberty has been greatly limited. Grandparents in all 50 states enjoy some level of rights with respect to their grandchildren, mainly due to grandparent visitation statutes enacted by various state legislatures between 1965 and 1988. The grandparent rights movement successfully lobbied state legislatures to create these rights after their efforts to create grandparent visitation rights at the federal level were unsuccessful. While the statutes vary in scope from state to state, they all essentially create a right for grandparents to petition the courts for visitation with their grandchildren under certain circumstances. In a few states, grandparents may petition the courts for visitation against the will of parents who are in an intact marriage, while others only allow petitions during family disturbances like custody disputes. Once a visitation petition has entered the court, judges in most states grant visitation to grandparents if it is in the “best interests” of the child based on state-specific factors. At least thirteen states use the stricter “harm to the child” standard, by which visitation is granted only when withholding visitation would cause physical or emotional harm to the child. Judges do not grant grandparent visitation in a vacuum. The amount of visitation granted to a grandparent results in a proportional reduction of parents’ right to direct the care, custody, and control of their children. The U.S. Supreme Court addressed this conflict of rights in its plurality opinion in Troxel v. Granville (2000). In striking down the application of a Washington third party visitation statute, the Court reaffirmed that the parental right to direct the care, custody, and control of children is a protected liberty under the Fourteenth Amendment’s Due Process Clause. However, the plurality indicates that more narrowly tailored grandparent visitation statutes are not necessarily in violation of this parental due process right, particularly if they include a rebuttable presumption that parental decisions are in the best interest of the child.
North Carolina’s grandparent visitation statutes, as interpreted by the State Supreme Court in McIntyre v. McIntyre (1995), allow grandparents to petition for visitation during custody disputes or alternatively upon the adoption of a grandchild by a stepparent or relative if a substantial relationship exists between the grandparent and child. Judges are tasked with awarding such visitation as is in the “best interest” of the child and making findings of fact to support the award. The McIntyre court affirmed that, “parents have a paramount right . . . to the custody, care and nurture of their children, [which] includes the right to determine with whom their children shall associate.” The court’s holding prohibited grandparents from petitioning for visitation when the parents were in an intact family. The N.C. Court of Appeals has held that even a single parent with uncontested custody can be considered an intact family for the purpose of grandparent visitation. Thus, when a child is in custody of an intact family, grandparents lack standing to sue for visitation in North Carolina.
Unfortunately for North Carolina families, parental rights are still being challenged by grandparent rights advocates. Though the law has not changed since McIntyre, legislative efforts to expand the scope of grandparent visitation rights have been made at the General Assembly during each subsequent term. In 2011, identical expansionary bills, H239 and S531, were proposed in the N.C. House and Senate. These bills did not make it past the committee level to be voted on by either house. The proposed legislation would have allowed any biological grandparent to petition the court for visitation at any time, regardless of whether or not a child is in the custody of an intact family. It prescribed several factors the court would consider in determining a child’s best interest, which include the “reasonableness or lack of reasonableness of the custodial parent in allowing, restricting, or denying visitation to the grandparent in the past” and “[w] hether the circumstances and amount of visitation will substantially interfere with the right of the parent to exercise his or her parental authority.” This legislation would have enabled the government, through the courts, to take authority away from parents to decide who spends time with their children.
This proposed broadening of visitation rights would likely survive Troxel scrutiny if it became law, because it included a rebuttable presumption against granting visitation when both parents are against it. Though this proposed change might be constitutional, it is not good policy. Such an expansion would have dire consequences for North Carolina families. The issue is not going away. Sixteen senators and 16 representatives signed on as sponsors of the 2011 legislation. Several senators sponsored a study bill in the 2012 Short Session, which would use state resources to conduct a study of grandparent visitation for the second time since 1997.
Expanding grandparent rights to allow grandparents to petition for visitation against the opposition of intact families would push more intergenerational disagreements into the courtroom. Litigation is unpleasant for all parties involved. In the words of Judge Learned Hand, “As a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” When grandparents may take intact families to court at any time, parents will have no choice but to hire legal representation if they intend to contest the visitation petition. Litigation is costly. For example, in North Carolina, Loring and Kathryn McIntyre spent $30,000 defending against a grandparent visitation action. Professor Stephen Newman’s research on the cost of grandparent visitation litigation revealed a father who spent $70,000 contesting a grandparent visitation action. Raising children involves many financial costs, and adding litigation expenses would place additional burdens on families. The McIntyre family could have used the money spent on their legal defense for their daughters’ education, food, clothing, or health care expenses. Instead, that money went to pay lawyers and court costs. It is probable that low-income families which cannot afford legal representation would have to either acquiesce to grandparents’ visitation wishes by settling or try to work another job. As Justice Kennedy has noted, “If a single parent who is struggling to raise a child is faced with visitation demands from a third party, the attorney’s fees alone might destroy her hopes and plans for the child’s future.”
Litigation is not only expensive, it is also time consuming. The aforementioned case Professor Newman discovered was still pending after seven years, and the McIntyre case took nearly three years. A busy parent’s life becomes much busier when faced with a lawsuit, and time spent in court and in preparation for court could be spent in ways more beneficial to children.
The harms of litigation go beyond money and time. Judge Cardozo called lawsuits “catastrophic experiences.” Studies have demonstrated that divorce custody and visitation litigation has psychological and emotional consequences for children, and these findings are similarly applicable to the grandparent visitation context. Parental anxieties are elevated and transferred to children, and children perceive the undermining of parental authority during the proceedings.
Again, one of the great advantages of current North Carolina grandparent visitation law is that intact families are protected from having to defend against such actions. This is because grandparents lack standing against intact families. “A grandparent cannot initiate a lawsuit for visitation rights unless the child’s family is already undergoing some strain on the family relationship, such as an adoption or an ongoing custody battle.” Insulation from litigation prevents exposure to the aforementioned ills of litigation. The 2011 expansionary bill proposals would break down this barrier, exposing parents and children in intact families to these harms. It is clear that expanding grandparent visitation rights proportionally diminishes parental rights, which often harms children. “Where, over parental objection, visitation with a [grandparent] has been court ordered, the conflict between the parent and the [grandparent] exacts a toll on the child(ren).”
Instead of expanding grandparent visitation rights, legislators could protect North Carolina families by limiting grandparent visitation rights in additional ways. First, instead of instructing judges in the cases that are currently allowed to award grandparent visitation when it is in the “best interests of the child,” the law could be amended to grant visitation only when withholding visitation would cause “harm to the child.” This change to a more stringent legal standard would increase the protection afforded parents to make decisions about their child’s upbringing. Justice O’Connor summarizes the nature of the grandparent-parent conflict and instructs that weight must be given to parents’ determinations:
In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial to any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.
While a majority of states use the “best interest” standard, North Carolina would not be alone if it adopted the “harm to the child” standard. It is statutory law in Georgia, Michigan, Texas, Tennessee, and Oklahoma, and it has become law through judicial application in Connecticut, New Jersey, and Iowa. Actual or potential “harm to the child” has been interpreted to be present only when there is a prior substantial relationship between the grandparent and child. Thus, a grandparent who has not been involved in a child’s life before a custody dispute begins would not be able to be granted visitation. Parents would be given more deference and judges would have less discretion in prescribing the future dynamics of family life. Limiting the circumstances under which a judge may intervene in family affairs is advisable, because judges are experts on law and not family dispute resolution. This higher standard would also discourage uninvolved grandparents from intervening in custody disputes, because the likelihood of actually succeeding in a visitation action would likely not justify the investment of time and resources.
Another improvement that the North Carolina General Assembly could make would be to require grandparents who bring unmeritorious or bad faith visitation petitions to pay parents’ legal expenses. In petitions to modify child custody arrangements, Utah courts are empowered to order the losing petitioners to pay the prevailing party’s attorneys’ fees, “if the court determines that the petition was without merit and not asserted or defended against in good faith.” If a similar rule were applied in the grandparent visitation context in North Carolina, it would have the effect of discouraging grandparents from bringing petitions motivated by spite or animus for parents. Professor Newman comments that grandparents often have more disposable income to engage in legal action than parents, who must carefully budget family expenditures. Good public policy in this area should discourage grandparents from burdening intact families and courts with unmeritorious and bad faith claims. Such a policy would disincentivize grandparents from bringing bad faith claims in the first place, and it would encourage families of limited financial means to hire legal counsel in defense against unmeritorious claims.
The two changes proposed above would further limit grandparent visitation rights and give more authority back to parents, but grandparent visitation would not be abolished. Grandparents could still petition courts for visitation during custody disputes, after adoptions by a stepparent or relative, or upon a showing of changed circumstances after custody has been determined. Judges could still grant visitation to grandparents after determining that the absence of visitation would cause harm to a child. Additionally, judges could award legal fees to parents upon a determination that a grandparent’s visitation petition was unmeritorious or brought in bad faith. Thus, if a parent is not allowing visitation for capricious reasons at the expense of a child’s psychological or emotional wellbeing, a judge may grant visitation pursuant to a grandparent’s proper motion.
Reducing grandparent visitation rights in North Carolina would further protect families from the burdens of visitation litigation and would defer more to parental authority. Expanding grandparent visitation rights would threaten intact families, subjecting them to costly litigation and placing parental decisions under judicial review. This is not a perfect world, and parents make regrettable choices every day. Still, North Carolina must not base its family policy on exceptions or worst-case scenarios. It would be imprudent to subject intact families to grandparent visitation litigation, potentially limiting their exercise of care, custody, and control over their children. Fit parents generally look out for their children’s best interests, and both the U.S. and N.C. Supreme Courts has recognized this fact as a legal presumption. The Court has also repeatedly affirmed that “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include the preparation for obligations the state can neither supply nor hinder.” Furthermore, there is a “private realm of family life which the state cannot enter.” Because the state cannot be the equal of the family in preparing children for the future, the state is prudent in deferring to parental judgment in all but the most extreme circumstances.
Justin Reimer served as an Alliance Defense Fund Blackstone Fellow legal intern at the North Carolina Family Policy Council.
