Parental Rights and Responsibilities of Grandparents and Third Parties

• Publication year: 2001
• Pages: 63

30 Colo.Law. 63 Colorado Lawyer 2001.

2001, May, Pg. 63. Parental Rights and Responsibilities of Grandparents and Third Parties

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63

Vol. 30, No. 5, Pg. 63

The Colorado Lawyer
May 2001
Vol. 30, No. 5 [Page 63]

Specialty Law Columns
Family Law Newsletter
Parental Rights and Responsibilities of Grandparents and Third Parties
by Steven B. Epstein, Ronald Litvak, Michael V. Switzer Janine Treu

New case law and other legal developments in the area of grandparent and third-party parental rights are increasingly commonplace with the so-called breakdown of the traditional American family, increasing life spans, and the advancing age of the baby boomer generation.1 At times of crisis, such as divorce or the birth of a child out of wedlock, grandparents are taking a more active role in the upbringing of their grandchildren.2 As a result, an expansion of the rights of grandparents and third parties has given them equal standing at least statutorily, with biological parents. For the legal practitioner, this has created a plethora of procedural and ethical issues

Two Colorado laws now exist under which grandparents and third parties may assume parental rights and responsibilities for minor children. The first is the Uniform Dissolution of Marriage Act ("UDMA").3 The second, which applies only to grandparents, not third parties, is the Children's Code.4 The purpose of this article is to (1) summarize the history of parental rights, (2) provide a brief history and review the framework of third-party rights,5(3) determine the state of third-party rights after the U.S. Supreme Court's decision in Troxel v. Granville,6 and (4) briefly examine ethical considerations in third-party representation.

Parental Rights

Under the common law, grandparents had no legal right to visit their grandchildren.7 Grandparents' rights merely were a derivative of parents' rights, so that a grandparent could visit only with the parents' permission. Courts have been reluctant to order visitation against parents' wishes because the U.S. Supreme Court has recognized a Fourteenth Amendment fundamental liberty right of parents to rear their children free from state intervention.8 Some courts have viewed granting grandparents' rights, against the wishes of the parents, as an infringement on this parental autonomy.9

However, parental autonomy is not absolute. A state may intervene if it is shown that a parent's actions endanger the child, which creates a compelling state interest allowing infringement on the parent's liberty interest.10 In addition, courts also have to consider the notion of the child as an individual with separately defined rights, which has emerged over the past several decades.1 This trend represents a rejection of the English common law view that children were to be regarded as chattels of the family.12 Consequently, limited parental autonomy and children's rights have opened the door for legal recognition of grandparents' rights.

In recent years, the "gray lobby," coalitions of senior citizens and older Americans groups that exert influence in the national political arena, have impacted the evolution of grandparent and third-party parental rights.13Individual state grandparent visitation statutes began to appear in 1965 and, by 1993, all fifty states had some form of such a statute.14 Family law generally is governed by state law, with the exception of a few constitutional issues that have been addressed by the U.S. Supreme Court.

The U.S. Supreme Court first acknowledged parental rights in Meyer v. Nebraska.15In Meyer, a Nebraska law was challenged prohibiting teaching a foreign language to a student before eighth grade. The Court held that the law violated the Fourteenth Amendment of the U.S. Constitution. The Fourteenth Amendment protects an individual's right to liberty, including the right "to marry, establish a home and bring up children. . . ."16 (Emphasis added.) The Court found that the right of parents to instruct their children in a foreign language is a protected liberty interest.

The liberty interest in Meyer was reaffirmed three years later in Pierce v. Society of Sisters.17 In Pierce, the Court held that the Oregon Compulsory Education Act was an "unreasonable interference with the liberty interest of parents . . . to direct the upbringing and education of children under their control." In essence, the Court stated that a parent has the right to direct the child's destiny.18

Family autonomy and parental authority was further bolstered by the Court in Wisconsin v. Yoder.19In Yoder, the Court reviewed an Amish parent's conviction for violating the Wisconsin Compulsory School Attendance Law that mandated attendance until age sixteen. The parents found the curriculum of the school disagreeable with the religious beliefs of the Old Order Amish. In striking down the law, the Court stated that the

history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.20

In Meyer, Pierce, and Yoder, the Court required a threshold showing of harm before state intervention and intrusion into family life could be justified. In Pierce, the state's claim of improving "opportunities for development of children was not a sufficient justification for the state intrusion."21 In Yoder, the state's claim of a parens patriae22 power to require a certain level of education, regardless of the wishes of parents, failed when the Court "measured the validity of the use of parens patriae power against harm to the child."23 The Court acknowledged the potential for parents to act in a manner not in the best interests of their children. Nevertheless, the Court held that if the parent's upbringing of the child does not "jeopardize the health or safety of the child, or have a potential for significant social burdens," the state may not interfere.24

Third-Party Visitation Rights

Visitation rights initially developed in an attempt to preserve the parent-child relationship after a marital dissolution. In determining custody, decision-making authority, and parenting time, courts must consider the best interests of the child. Generally, parenting time will be awarded to each parent unless it would endanger or jeopardize the minor child.

However, parental rights are now being granted to persons acting "in loco parentis" when such actions are consistent with the best interests of the child. Visitation rights of a third party, or a non-parent, are a relatively new concept in American jurisprudence. Due to the increase in non-traditional families, rights have evolved for stepparents, grandparents, cohabiting non-married partners homosexual parents, day-care providers, foster parents, and people with a biological, but not a legal, relationship...