The Grandparent Visitation Law

For interested grandparents, researchers and students, this section contains

  1. Historical background about states in which the grandparent laws were struck down, and reasons given.
  2. The model Grandparent Visitation law adopted by the state of New Mexico.
  3. A listing of Canadian Grandparent Groups.

When Grandparents Visitation laws are Struck Down

Grandparent Visitation Law struck down in Illinois on April 2002

The Illinois Supreme court nullified the grandparent visitation law when it ruled that a parent has full authority to raise its child unless the child’s health or safety is in danger. The court overturned two trial court decisions where grandparents were able to obtain visitation to a grandchild with one surviving parent. This piggy backs on the decision that grandparents have no rights when a marriage is “intact (two parents).

New Jersey

New Jersey Statute 9:2-7.1 was amended to modify the circumstances under which a grandparent or sibling may apply for visitation. Grandparents or siblings must show whether visitation is in the best interest of the child. What is new here is that, if appropriate parameters are met, visitation may occur even if the parents’ marriage is “intact.”

Grandparents’ Rights Lost in Florida

In 1996, the Supreme Court of Florida ruled that a Florida statute that allowed grandparents to petition a court for visitation with grandchildren, whose parents had denied such visitation, was an unconstitutional deprivation of the parents’ right to be free of governmental intrusion into the family. Now, the court has extended that rule to the portion of the statute that would allow visitation petitions when one of the parents has died, In VonEiff vs. Azieri (Fla. Nov. 12, 1998) the court ruled that the maternal grandparents of a child whose mother had died could not be granted independent visitation rights with their grandchild over the objection of the child’s father, where the father was otherwise a “loving, nurturing and fit parent.”

Although the father had since remarried and his wife had adopted the child, making for all legal purposes an “Intact” family similar to that of the family in the 1996 case, the court emphasized that their decision was not at all dependent on that fact. Rather, the court ruled that the surviving parent retains all of the authority that the parents originally enjoyed. The decision turned in part on the Constitutional right of privacy set forth in the Florida Constitution. Parents enjoy a right to be free of governmental intrusion into parenting decisions unless a complainant can demonstrate threatened harm to the child. On this point the court said~

Neither the legislature nor the courts may properly intervene in parental decisionmaking absent significant to the child threatened by or resulting from those decisions…This threshold requirement thus ensures that focus will not be on the perceived benefits of a grandparent-grandchild relationship before the need for government intervention is assessed.The court emphasized that the statute had required courts to grant grandparent visitation if one parent was deceased, without regard to any showing of harm to the child by the denial of visitation, as long as the visitation was in the child’s best interests,

The court summarized as follows

We recognize that the death of a biological parent may be a traumatic event for a child and that a family may deal with that tragic event in many different ways. Some parents may decide that counseling is beneficial for the Child; others may disagree, Some parents may decide that the child should spend more time with the deceased biological parent’s grandparents, siblings or close friends, Others may restrict those relationships. Interaction with the grandparents may help case the pain of loss for both grandparent and child and, thus, be beneficial to the child. However, . – – it is irrelevant, to this constitutional analysis, that it might in many instances be ‘better’ or ‘desirable’ for a child to maintain contact with a grandparent. [reference to quoted phrase omitted]Although a news report on the case describes advocates for grandparents’ rights as “outraged” by the court decision, I would expect that in cases where grandparents already maintain a solid relationship with the grandchildren at the time of a tragedy, then showing harm to the children by attempting to end that relationship would not be difficult. Social service and mental health experts will favor maintaining extended family relationships where they already exist,

In essence, this shifts the burden of persuasion from the neutral “best interests of the child” test, to the grandparents, who now must show a specific harm in the denial of visitation in their particular case, It perhaps shifts the burden of expense as well.

Just what level of harm the courts will require remains to be seen.

Laws Passed

August 1999. Alabama expands conditions allowing grandparents to sue for right to visit biological grandchildren involved with conditions of death, divorce, out of wedlock birth, abandonment, or intact marriage.

The New Mexico Grandparent Visitation Law Bill

SENATE BILL 174: 44TH LEGISLATURE – STATE OF NEW MEXICO – FIRST SESSION, 1999 INTRODUCED BY Linda M. LopezAN ACT

RELATING TO FAMILY LAW; EXPANDING THE CONSIDERATIONS FOR THE COURT WHEN A GRANDPARENT PETITIONS FOR VISITATION WITH A CHILD; AMENDING A SECTION OF THE NMSA 1978.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 40-9-2 NMSA 1978 (being Laws 1993,

Chapter 93, Section 3) is amended to read:

“40-9-2. CHILDREN–VISITATION BY GRANDPARENT–PETITION–MEDIATION.–

A. In rendering a judgment of dissolution of marriage, legal separation or the existence of the parent and child relationship pursuant to the provisions of the Uniform Parentage Act, or at any time after the entry of the judgment, the district court may grant reasonable visitation privileges to a grandparent of a minor child, not in conflict with the child’s education or prior established visitation or time-sharing privileges.

B. If one or both parents of a minor child are deceased, any grandparent of the minor child may petition the district court for visitation privileges with respect to the minor. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.

C. If a minor child resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child’s home state is New Mexico, as provided in the Child Custody Jurisdiction Act.

D. If a minor child resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person, the grandparent may petition the district court for visitation privileges with respect to the child, if the child’s home state is New Mexico, as provided in the Child Custody Jurisdiction Act.

E. A biological grandparent may petition the district court for visitation privileges with respect to a grandchild when the grandchild has been adopted or adoption is sought, pursuant to the provisions of the Adoption Act, by:

(1) a stepparent;

(2) a relative of the grandchild;

(3) a person designated to care for the grandchild in the provisions of a deceased parent’s will; or

(4) a person who sponsored the grandchild at a baptism or confirmation conducted by a recognized religious organization.

F. When a minor child is adopted by a stepparent and the parental rights of the natural parent terminate or are relinquished, the biological grandparents are not precluded from attempting to establish visitation privileges. When a petition filed pursuant to the provisions of the Grandparent’s Visitation Privileges Act is filed during the tendency of an adoption proceeding, the petition shall be filed as part of the adoption proceedings. The provisions of the Grandparent’s Visitation Privileges Act shall have no application in the event of a relinquishment or termination of parental rights in cases of other statutory adoption proceedings.

G. When considering a grandparent’s petition for visitation privileges with a child, the district court shall assess:

(1) the best interests of the child;

(2) the prior interaction between the grandparent and the child;

(3) the prior interaction of the grandparent and each parent of the child;

(4) the present relationship between the grandparent and each parent of the child; [and]

(5) time-sharing or visitation arrangements that were in place prior to filing of the petition;

(6) the amount of time that may have elapsed since the child last had contact with the grandparent;

(7) the effect the visitation with the grandparent will have on the relationship between the child and the child’s parent or the person with whom the child resides;

(8) any history of physical, emotional or sexual abuse or neglect by the grandparent;

(9) the good faith of the grandparent in filing the application; and

(10) other factors relevant to the best interests of the child.

H. It shall be prima facie evidence that visitation is in the child’s best interest if in the past the grandparent had been a full-time caretaker for the child.

H.] I. The district court may order mediation and evaluation in any matter when a grandparent’s visitation privileges with respect to a minor child are at issue. When a judicial district has established a domestic relations mediation program pursuant to the provisions of the Domestic Relations Mediation Act, the mediation shall conform with the provisions of that act. Upon motion and hearing, the district court shall act promptly on the recommendations set forth in a mediation report and consider assessment of mediation and evaluation to the parties. The district court may order temporary visitation privileges until a final order regarding visitation privileges is issued by the court.

[I.] J. When the district court decides that visitation is not in the best interest of the child, the court

may issue an order requiring other reasonable contact between the grandparent and the child, including regular communication by telephone, mail or any other reasonable means.

[J.] K. The provisions of the Child Custody

Jurisdiction Act and Section 30-4-4 NMSA 1978, regarding custodial interference, are applicable to the provisions of the Grandparent’s Visitation Privileges Act.”

Section 2. EFFECTIVE DATE.–The effective date of the provisions of this act is July 1, 199

Support Groups in Canada

Volunteer Grandparents
  • #14 – 250 Willingdon Avenue Burnaby BC V5C 5E9 Phone: 604-736-8271 Fax:604-736-8279  e-mail: info@volunteergrandparents.ca
Canadian Grandparents’ Rights Association
  • Alberta Office National Director: Florence Knight  2416 Ulrich Rd., NW, Calgary, Alberta, Canada T2N-4G5 phone: 403 284-3887 / fax: 403 289-1524    email address: knightf@telus.net
  • Ottawa branch president: Madeleine Bremner 1998 Anthony Ave., Ottawa, Ontario,K2B 6T9, Ph:(613)722-3310
Grandparents Requesting Access and Dignity (G.R.A.N.D.) Society & Chapters
  • Toronto Nucleus/President/Founder: Joan Brooks  219 Browning Ave., Toronto, Ontario, M4K 1X1,Ph:(416)469-5471
  • Ottawa chapter president: Lilliane George 1516 Boucier Drive, Orleans, Ontario, K1E 3J5, Ph/Fax:(613)837-8371
  • Manitoba chapter president: Eileen Britton 153 Roquette St., Winnepeg, Manitoba, R3K 1M6, Ph:(204)888-0482,  E-mail:britton@mb.sympatico.ca
  • Quebec chapter president: Mathilde Goldberg 12 Park Place, Apt. 1, Westmont, Quebec, H32 2K5, Ph:(514)846-0574, Fax:(514)846-0235
  • Hamilton chapter president: Sylvia Chappell 154 Balmoral St., N., Hamilton, Ontario, L8L 7R8, Ph:(905)544-2668
  • New Brunswick chapter: 1010 Dornridge Rd., Burtts Corner, New Brunswick, E6L 2V2, Ph/Fax:(506)363-5743
Helping Unite Grandparents and Grandchildren, (H.U.G.G.’s)
  • 607 Pine Ridge Ave., Amherstburg, Ontario, N9V 3W3, Ph:(519)736-5116, Fax:(519)736-0189
  • Oakville-Hamilton chapter: 19 BlueHeron Lane, Carlisle, Ontario, L0R 1H1, Ph:(905)690-4026, Fax:(905)690-4969
The Association To Reunite Grandparents & Families President
  • Betty Cornelius RR#1, McArthurs Mills, Ontario, K0L 2M0, Ph:(613)474-0035, E-mail: grandma@northcom.net or ICQ #20937540

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