NONPARENT VISITATION RIGHTS: A NATIONAL ISSUE AS ADDRESSED IN LOUISIANA.

• Author: Tranchina, Tobie

TABLE OF CONTENTS INTRODUCTION A. Meet Louise: A Real-Life Hypothetical B. The Need to Legislatively Protect Certain Relationships I. Legal Approaches and History of Nonparent Visitation Rights A. Variety in States' Legislation B. Variety Explained: Three Legal Approaches C. Due Process and the Effects of Troxel v. Granville II. Louisiana's Legislative Approach to Nonparent Visitation Rights A. The Scope of the Three Statutes 1. Who can seek visitation? 2. Under what circumstances can visitation be sought? 3. How do Louisiana Courts apply the Three Statutes? B. The Effect of Marriage on the Three Statutes C. Burden of Proof as Applied to the Three Statutes D. Definition of Reasonable Visitation E. How Legislation Currently Addresses these Conflicts F. How the Current Louisiana Statutes Would Apply to Louise III. Possible Solution to the Gaps and Gray Areas of the Law A. A Proposed New Statute B. Analysis of the Proposed New Statute C. The New Statute Applied to Louise CONCLUSION INTRODUCTION

1. Meet Louise: A Real-Life Hypothetical

   There is one story in particular which has become a significant motivation for this comment. It's about a little girl, let's call her Louise, a feisty seven-year-old with anything but a "typical" family. This beautiful, blue-eyed girl was, like so many other children, born to unwed parents who battled the demons of substance abuse. Her birth mother, who was absent for much of her daughter's young life, died before Louise's fifth birthday. Louise's father, still battling his addiction, has been in and out of her life depending on the status of his struggle at the time. Her paternal grandmother has cared for her since the day she was born.

   Louise's story is not one of your typical all-American family, but she is definitely not without the nurture and love of family. In addition to her paternal grandmother who has taken on the role of mother, she has a paternal aunt and uncle who have played a vital role in her life thus far. Louise occasionally sees her maternal grandfather, and she also has a maternal great aunt who has lovingly slipped into the role of a surrogate grandmother. These nonparent relationships are essential to Louise's upbringing, and it is these relationships which nonparent visitation statutes seek to protect.

2. The Need to Legislatively Protect Certain Relationships

   For roughly half a century, courts and legislatures across the country have increasingly turned away from the traditional legal concepts of family and parenthood. (2) This change is due to the recognition that children are nurtured by different kinds of families and familial relationships, and, therefore, the law must make allowances for the protection of these relationships. (3) In particular, the legislatures in all fifty states have enacted laws allowing family members other than the natural or adoptive parents of a minor child to seek visitation rights.

   Nonparent visitation has also been directly addressed by the United States Supreme Court in the 2000 opinion of Troxel v. Granville. (4) Justice O'Connor, delivering the June 2000 opinion in Troxel v. Granville, had the following to say about the issue of nonparent visitation rights: "The nationwide enactment of nonparental visitation statutes is assuredly due, in some part, to the States' recognition of [the] changing realities of the American family." (5) Justice O'Connor points out in her opinion that in today's families, grandparents and other relatives are frequently taking on the "duties of a parental nature," and in doing so have established relationships with children which should be statutorily protected. (6) Though Justice O'Connor's opinion addressed the negative impact such statutory rights might place on the traditional parent-child relationship, she recognized a need to protect relationships between children and certain third parties. (7)

   The "changing realities of the American family" identified by Justice O'Connor in June of 2000 are even more significant today, evidenced by the gradual decline of the traditional nuclear family, making the need for statutory protection of nonparent visitation rights extremely relevant and necessary. (8) In 2014, it is estimated that only sixty-four percent of children under the age of eighteen resided in a traditional two-parent household and twenty-eight percent lived with only one of their parents. (9)

   Of the seventy-four million children calculated by the census bureau in 2014, four percent, or nearly three million children, lived with neither parent, with fifty-six percent of these children, about 1.6 million children, being raised by grandparents. (10) For this very reason, nonparent visitation rights have become not only a family law issue, but an elder law issue too.

   Part I of this Comment will first shed light on the history and legal approaches behind nonparent visitation rights, including how this issue is addressed nationally, before diving further into the constitutionality of these rights as addressed by the Supreme Court in Troxel v. Granville. Next, in Part II, this Comment will specifically address the legislation in Louisiana and argue the current relevant statutes and judicial interpretations produce inconsistency and uncertainty in this important area of the law. This Comment will focus particularly on the state of Louisiana, analyzing the scope and burden of proof of the state's three applicable statutes. Further, this Comment will pinpoint conflicts created by the various scopes of the statutes and weakness in the current application of the three statutes, including an ill-defined burden of proof. Lastly, in Part III, this Comment will propose new legislation which would offer a more cohesive statutory protection of nonparent visitation rights and which would not infringe on a parent's constitutionally protected right to parent as they see fit.

   1. LEGAL APPROACHES AND HISTORY OF NONPARENT VISITATION RIGHTS

   The Louisiana Second Circuit Court of Appeal first addressed nonparent visitation rights in 1985 in Recknagel v. Roberts. (11) In that case, the maternal grandmother and later the paternal aunt and uncle enjoyed custody of the minor child for seven years before the parents sought to regain custody. (12) While the court returned the child to the custody of the parents, it also awarded visitation to the relatives who had been caring for him. (13) The minor child's parents appealed, because at that time "there [was] no statutory authority for awarding visitation rights to nonparents when both of the parents are living, married and have custody of the child." (14)

   The appellate court upheld the lower court's granting of visitation, citing that, "the court has the authority, in the best interest of the child, to impose reasonable conditions on a grant of custody." (15) Though Louisiana subsequently adopted legislation granting grandparents and other relatives the right to petition the court for visitation, the way that some circuits have interpreted these statutes would have likely left these relatives without a right of action.

   Although legislatures across the country have taken action to protect these vital familial bonds, the approaches they have taken and the statutory protections offered are as varied as the landscapes from which they come.

1. VARIETY IN STATES' LEGISLATION

   The first statutes granting grandparents a right to seek visitation of their grandchildren were enacted in 1966 in New York. (16) Following New York's example, all fifty states enacted some form of legislation enabling grandparents, and in some states and circumstances other third parties, to petition the court for visitation of a minor child. (17) However, there is very little uniformity found among the statutes enacted by each state. An explanation of these vast differences is that statutes presumably "reflect a codification of the circumstances under which the courts had previously granted such rights on equitable grounds due to special circumstances." (18)

   The "special circumstances" addressed by most states include the death of a parent or when a child is the issue of a divorce. (19) Some states sever the visitation right when a child is adopted, whereas in other states this right is retained when a stepparent or blood relative adopts the child. (20) In New Mexico, visitation rights may be granted where a child over six year old has lived with the grandparent for more than six months or a child under six years old has lived with a grandparent for more than three months and has subsequently been removed. (21) Pennsylvania grants this right where the child has lived with the grandparent for twelve months. (22) Five other states join New Mexico and Pennsylvania in granting rights to grandparents who have lived with and cared for their grandchildren. (23) The Missouri statute goes so far as to grant grandparents the right to petition the court for visitation of a grandchild when the grandparent has been unreasonably denied visitation for more than ninety days. (24)

2. VARIETY EXPLAINED: THREE LEGAL APPROACHES

   Some of the nation's statutory variety can be attributed to three legal approaches identified as the foundation for the rights of grandparents to petition the court for visitation. (25) The first approach is the derivative rights theory, whereby the grandparents right to petition for visitation is derived from their own child's parental rights. (26) The statutes established by way of the derivative rights theory "allow grandparents to have access to their grandchildren when their own child cannot practice his or her parental rights due to death, divorce, termination of parental rights, incompetence, unfitness, or incarceration." (27)

   The second approach, the statutory approach, broadens the scope of a right of action to include instances where there is a disruption in the family, such as a divorce. (28) The third and most contentious approach is the best interest of the child. (29) Under...