Kansas Family and Divorce

Supreme Court Won’t Review Grandparent Case

A widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son.

The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother.

Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection.

Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said.

Fausey said the court ruling violated his constitutional right to make parenting decisions.

The Supreme Court has never answered that constitutional question and state courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers.

The case is Fausey v. Hiller, 06-863.

Source for Post: NY Times

Case Law Development: Probate Courts may Grant Guardianship to Grandparents only if Parent is Unfit

Case Law Development: Probate Courts may Grant Guardianship to Grandparents only if Parent is Unfit: "The Illinois Supreme Court reveiwed the legislative history of the probate guardianship statute in light of constitutional standards of Troxel v. Granville and concluded that, to have standing to proceed on a petition for guardianship under the Probate Act, when..."

(Via Family Law Prof Blog.)

Technorati Tags: Grandparent Rights

GRANDPARENT RIGHTS

From Britain:

Grandparents have no automatic legal rights to see their grandchildren and are often forced into expensive court battles to secure contact.

The issue can be a particular problem for grandparents whose sons or daughters are denied access following divorce or the breakdown of a relationship.

About one in four families rely on grandparents for [...]

(Via Family Scholars Blog.)

Technorati Tags: Family, Grandparent Visitation, Grandparent Rights

Case Law Development: Grandparents Have No Right to Notice of Adoption Proceedings

"The Supreme Court of Arkansas held that even if grandparents have existing court-ordered visitation rights with their daughter's child, they are not entitled to notice of pending adoption proceedings, so long as their daughter (the child's parent) is alive. The..."

(Via Family Law Prof Blog.)

How to Resolve Grandparent Visitation Rights

Disputes about grandparent visitation can usually be resolved simply by talking with the grandparents and making time for them in your children's lives. Long-standing hurt feelings can be at the root of the problem. Making it clear that they're important in your children's lives will ease most grandparents' concerns.

Steps:

1. Evaluate how serious the grandparents are about pursuing visitation rights. They may just be making idle threats. If you believe they're serious, you should attempt to work it out without getting a court involved.

2. Look at the past contact the child has had with the grandparents. Has it been regular? Has something happened recently to change that? Think about what is different and what can be done to fix the problem.

3. Talk to the grandparents about what they want. In most situations, a solution can be worked out. They may feel left out of their grandchildren's lives or ignored. Find out what can be done to make them feel better. Simple solutions are often possible, such as a visit for a few hours every couple of weeks or regular phone contact.

Supreme Court and a Grandparent Visitation Case

In January 2006, the Supreme Court will hear another Grandparent Visitation Case. This one should be interesting.

E. H., ET AL. V. C. M., ET AL (2004-SC-542-DG)
"Domestic Relations. Grandparent Visitation. What is the proper standard by which trial courts are to make rulings on grandparent visitation in light of Troxel v. Granville, 530 U.S. 57, 120 S.Ct 2054, 147 L.Ed.2d 49 (2000); Scott v. Scott, Ky.App., 80 S.W.3d 447 (2002); and Vibbert v. Vibbert, Ky.App., 144S.W.3d 292 (2004)?"

Discretionary Review granted 10/13/2004
Jefferson Circuit Court, Judge Jerry J. Bowles
For Movants: Richard Bryan Gowin
For Respondents: Rocco J. Celebrezze and Jeffery L. Parrish

Recent Case Seems to Put Grandparent Rights in Question

Recent Case Seems to Put Grandparent Rights in Question : "

The Alabama Court of Civil Appeals recently decided the case of C.D.P. v. D.P. and D.S.P. The case involved paternal grandparents who were seeking to have the Court award them visitation with their grandchild. The mother was opposed to unsupervised visitation. Their was no dispute that the grandparents had peviously been very active in the grandchild's life.

The trial judge awarded the grandparents visitation. But, the Court of Appeals reversed that decision and held it to be improper.

The law regarding grandparent visitation has been in a state of flux ever since the United States Supreme Court rendered it opinion in Troxell v. Granville in 2000. I have previously written an article that reviewed that important decision. It can be found on the Articles page of our website, www.shermanjeffries.com.

It appears that post-Troxell, it will be very difficult for grandparents to receive Court Ordered visitation absent an allegation and finding that the custodial parent is unfit.

"

(Via Alabama Family Law Blog.)

Washington Supreme Court Strikes Down Grandparent Visitation Law

For the second time, the Washington State Supreme Court has struck Washington's grandparent visitation law as unconstitutional.  The current law replaced another state law that the U.S. Supreme Court struck down in 2000,  forcing dozens of states to rewrite their own statutes.  The court said that the grandparents have no right to court-ordered visits because Washington's law on the matter is unconstitutional.  To read the full article to to this LINK.

As I have POSTED  before, Kansas has its own grandparent visitation statute at K.S.A. 38-129(a).  However, it would seem recently that courts are attempting to find a way to bypass the ruling in Troxel v. Granville and some of our own higher court rulings.  It is suppose to be presumed that a fit parent will act in the best interest of his or her child and that presumption is suppose to be given special weight.  However, since I argued the Paillet case, I have also argued subsequent grandparent cases, representing parents, and have seen district court judges ignore our case law and ORDER visitation between grandparents and fit parent's children.  And in everyone of the cases I have represented a parent in, there has always been a good reason for the FIT parent to not want visitation. 

Grandparent Visitation Denied

From South Dakota, a Mission woman's bid for visitation rights to see her 5-year-old grandson was rejected Thursday by the state Supreme Court in a ruling that stressed parents' rights to decide how their children are raised.

READ MORE ---->

Grandparend Visitation Rights

Kansas has a grandparent visitation statute, K.S.A. 38-129(a), which govern vistation between a grandparent and their grandchildren.  The statute states that the court may award visitation to grandparents if the court find there is; (1) a substantial relationship between grandparent and the grandchild; and (2) the visitation is in the best interest of the minor child.  The burden of proving both required elements is for the party seeking visitation.  It is not sufficient that the court find only one of the criteria exists. 

A recenet case, In the Interest of T.A., handed down on December 31, 2001, declared that in the situation where the father committed suicide, the paternal grandparents could have reasonable visitation rights upon a showing that; visitation was in the best interest of the child; and a substantial relationship between the child and the grandparents had been established.  The court went on to say that, absent a finding of unreasonableness, the trial court should adopt a grandparent visitaiton plan proposed by the court. 

In Kansas, if the two elements of K.S.A. 38-129 are met, the court should still give deference to the decision of a fit parent as to what visitation schedule the grandparent should receive.  Under a case I argued in the Kansas Supreme Court, Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 654, 16 P.3d 962 (2001), which interpreted Troxel v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000), A parent is  entitled to a presumption that a fit parent will act in the best interests of her child and that presumption must be given special weight.  Of course, the court added the reasonableness standard in, In the Interest of T.A, which of course leaves open the interpetation of what is reasonable.

It has been established through a long line of cases that parents have a constitutional right to decide how their children will be raised and also have a right to control their children and to decide the persons who may have access to the child.  However, in my own practice, I have seen judges use this reasonable standard to impose a visitation schedule on fit parents.  Even when the fit parent has determined that they do not believe it would be in the child's best interest to have visitation. 

I certainly welcome any comments you may have.