Grandparent Visitation Claims: Assessing the Multiple Harms of Litigation to Families and Children
Stephen A. Newman
New York Law School
Boston University Public Interest Law Journal, Vol. 13, April 2004
This article provides a detailed appraisal of the negative consequences of grandparent visitation lawsuits, and of the harms caused by state-coerced grandparent visitation, in the context of the malfunctioning extended family. I suggest that the special weight afforded a fit parent's decision should be very substantial, and that it should be dispositive of the case unless the grandparent can produce convincing evidence showing that extraordinary circumstances, involving clear harm to the child, justify court ordered visitation. This high degree of deference to parents derives from two features of grandparent visitation cases that deserve more attention than they have received so far in the reported cases. First, the litigation itself is much more damaging to the well-being of children than the cases have yet articulated; if it is to be permitted at all, this litigation must be strictly limited so as not to place undue burdens on the parent-child relationship. Second, the best interest of the child standard used in these cases is fundamentally flawed, leaving judges free rein to impose their subjective views of childrearing upon parents. It is only in extreme circumstances that the best interest test can be used to justify court ordered visitation against a parent's wishes.
In view of the many significant negative consequences for parents and children, states must recognize that it is the rare case in which a fit custodial parent's decision to curtail grandparent visitation should be superseded by a court. I suggest standards and litigation procedures that might restrict this litigation, to protect the best interests of children and the constitutional childrearing rights of parents.
Keywords: grandparent, visitation, best interest of the child
Date posted: April 21, 2004