Friday, July 02, 2010

Grandparents' rights: No 'rose-tinted glasses'

There is much discussion these days of grandparents' rights. Promoting contact rights for grandparents is, of course, one of the matters that will be considered by the Family Justice Review. I was therefore interested to come across this post on Florida Divorce, indicating that in the USA grandparents' rights "were all but eliminated" by a Supreme Court decision in 2000. Are things moving in the opposite direction on the other side of the pond?

After a little research, I found that the decision referred to was Troxel v. Granville, in which the paternal grandparents sought contact with their grandchildren under a Washington State Statute. The State Court of Appeals dismissed their petition and this decision was affirmed by the State Supreme Court, which held that the Statute unconstitutionally infringes on parents’ fundamental right to rear their children. That decision was in turn affirmed by the US Supreme Court.

The exact impact of Troxel v Granville is not entirely clear (and I am certainly not qualified to comment upon US law), but it seems that since the decision many states have amended their "grandparent visitation" statutes (interestingly, all 50 states apparently have such a statute), in such a way as to make applications for contact by grandparents more difficult, for example by putting the onus upon the grandparents to prove that contact is in the best interests of the child, or even that the child will suffer harm if contact is not allowed.

None of this is, of course, directly relevant to the law over here, but it is illustrative of the problems that can arise if grandparents are given rights that can put them into conflict with the parents of the child. We therefore need to give the issue very careful consideration before we give any special rights to grandparents, else I can see scope for many more damaging family conflicts being played out before the courts, with those special rights spurring more grandparents to make applications. In most cases it is of course beneficial for children to have a (continuing) relationship with their grandparents (and this is already recognised by the courts here), but to suggest that it is always likely to be beneficial (for example by there being a presumption in favour of grand-parental contact) is, unfortunately, wrong. Those lucky enough to be in 'happy' (extended) families may find this hard to understand (and may view the whole idea of 'family' through rose-tinted glasses) but, as anyone who has worked within the family justice system will know, sometimes relationships between parents and grandparents have deteriorated to such a point that imposing grandparent contact can be seriously detrimental to the child (or there may be other good reasons for there being no such contact). We therefore need to take a realistic view of any changes, rather than have them driven by the 'rose-tinted glasses' brigade.

Under the present law, grandparents can and often do apply for contact orders (usually successfully), and the only extra obstacle put in their way (as against applications by a parent) is that they must first seek the leave of the court to make the application. My experience was that this was almost always granted, with the result that the leave requirement did no more than delay the application and add to the costs. I would therefore have no problem with the leave requirement being removed, but I'm not sure that any further reform is needed.

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