Grandparents lose ground on visitation rights

For many older Americans there is no greater joy than building a relationship of love and trust with a grandchild.

But what happens when parents refuse to permit contact between a child and his or her grandparents? Increasingly, grandma and grandpa are answering with an all-too-common battle cry: "We'll see you in court!"

That's what happened in south Florida where Leonor and Roberto Azicri filed suit seeking to visit their granddaughter Kelly Von Eiff. The Azicris' daughter died when Kelly was two years old. Two months later, another woman moved in with the Azicris' son-in-law and the grandparents' regular visits with Kelly were sharply curtailed.

They sued for visitation rights and won. But in November the award was overturned by the Florida Supreme Court, which ruled unanimously that Kelly's parents - including her new adoptive mother - had a fundamental right to raise Kelly (and decide whom she may visit) without being second-guessed by a state judge.

The ruling is viewed as a major blow to the grandparents' rights movement, particularly here in Florida, which is heavily populated with senior citizens.

It comes in the wake of similar rulings favoring parents' rights over grandparents' rights issued in Georgia, Tennessee, and Virginia.

"I hate to sound negative, but I really think [the Florida ruling] is the end of grandparents' rights," says Eileen Olson, Florida coordinator for Grandparents United for Children's Rights.

Ms. Olson, who is raising her three grandsons, says she is concerned the decision will spark legal challenges nationwide and begin to unravel more than 30 years of pro-grandparents legislation. "It is going to snowball," she warns.

There are no national statistics recording grandparent visitation disputes, but experts familiar with the trend say a large and growing number of grandparents are seeking intervention by the courts.

Litigious Americans

The grandparents' rights movement is a reflection of the increasing political clout of older Americans. It is also one more example of just how litigious the US has become.

A generation ago, virtually all these disputes were settled within a family. Not today. An ever younger corps of grandparents is prepared to hire a lawyer and slug it out in court, with the outcome to be determined by family outsiders.

"They were brought up in a different environment where you weren't afraid of the courts and attorneys. So they are more inclined to hop into the fray and litigate," says Ethel Dunn, executive director of the national office of Grandparents United for Children's Rights in Madison, Wis.

Since the mid-1960s, all 50 states passed laws empowering courts to order parents to facilitate grandparent visitation when such visits are deemed by the court to be in the best interests of the child.

Critics of such laws say judges simply assume that any and all contact between grandparent and grandchild is in the child's best interests. Courts approve the requested visitation based on mere assumptions, these critics say. When they do it over a parent's objection, they are violating the US Constitution, they say.

The Florida Supreme Court struck down the "best interests" portion of the Florida law for that reason.

"We recognize that it must hurt deeply for the grandparents to have lost a daughter and then be denied time alone with their granddaughter. We are not insensitive to their plight," the ruling reads. "However, familial privacy is grounded on the right of parents to rear their children without unwarranted governmental interference."

When judges can step in

The court found that for a judge to interfere in a parent's child-rearing responsibilities, there must first be proof that the child suffered serious harm such as abandonment, abuse, or neglect by the parent. Then, and only then, would a judge be authorized to intrude into the area of private parental decisionmaking, the court ruled.

"In a constitutional framework, the first issue is, under what standards can a state court invade the sanctity of the family," says Andrew Kayton of the American Civil Liberties Union Foundation of Florida, which filed a friend-of-the-court brief supporting Kelly's parents.

"If the court could do that whenever it was in the best interests of the child, we would have state courts bringing up children instead of parents," he says.

Brenda Shapiro, the Azicris' attorney, believes the Florida Supreme Court's ruling is flawed. "Do we have to wait for a kid to be physically harmed before the state can intervene?" she asks. "We are saying if the child is at risk, the state should be willing to act."

Ms. Shapiro says psychologists testified that Kelly would suffer emotional harm if she were denied access to her grandparents. But the court ruled the testimony did not rise to the level of harm sufficient to justify invading the privacy of Kelly's parents and overturning a parental decision.

Many legal experts warn the rush to litigate can do more harm to a grandchild and a family than could ever be compensated for in visits with grandparents. They warn that litigation should be a last resort.

"Not everyone, just because they happen to be a grandparent, is a wonderful person," says Theresa Sykora, author of a 1996 article on grandparent visitation rights cited in the decision. "Those who do fit the ideal image that we have of grandparents aren't the people who have to sue to see their grandchildren."

Although the Azicris felt they had no alternative but to sue, their story is not without a ray of hope. Shapiro says since winning the court decision, Kelly's adoptive mother is now reaching out to the extended family - including the Azicris - and permitting them to visit Kelly.