By Molly Murphy
Attorney, Cordell & Cordell
In recent years, the issue of whether a grandparent has the right to visitation with a grandchild has become more prevalent. Sadly, when parents decide to get divorced the parents of the non-custodial parent often end up cut off from their grandchildren.
The issue of grandparent visitation is complex. On the one hand, why should grandchildren be denied a relationship with their grandparents just because their parents are being divorced? On the other hand, shouldn’t parents have the ability to determine what is in the best interest of their own children without the court system intervening and infringing upon their civil liberties?
Grandparents’ rights are recognized in the State of Missouri, where I practice. They are not recognized in all of the fifty states, though, so you will want to consult with an attorney in your jurisdiction about grandparents’ rights. This rationale is supported by the United States Supreme Court which held that a Washington grandparent visitation statute was unconstitutional. In part, the court stated, “…the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made…” Troxille v. Granville, 147 L.Ed. 61 (2001)
The Missouri Supreme Court, however, has held the Missouri grandparent statute to be constitutional. In its rationale, the Missouri Supreme Court has explained that although parents have a constitutional right to make decisions affecting family, the grandparent visitation statute is reasonable both because it contemplates only minimal intrusion on family relationships and because it is narrowly tailored to protect the interest of parent and children. (See MO revised statute 452.402; Herndon v. Tuhey, 857 S.W.2d 203(Mo. banc); Blakely v. Blakely, 83 S.W. 3d 532 (Mo. banc)).
The Missouri court may order grandparent visitation under specific circumstances. Missouri law supports contact between grandparent and grandchild while attempting to encourage parents to resolve family disputes without court intervention. In an attempt to balance these two interests, Missouri law permits grandparent visitation only in limited situations. There is no guaranteed right for a grandparent to have visitation with a grandchild.
The court may grant reasonable visitation rights to grandparents under the following circumstances:
1. The parents of the child have filed for divorce. Grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights;
2. One parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights;
3. The child has resided in the grandparent’s home for at least 6 months within the 24 month period immediately preceding the filing of the petition for grandparent rights;
4. The grandparent has been unreasonably denied visitation with the child for more than 90 days, unless the natural parents are legally married to each other and are living together with the child. In that case, the grandparent may not file for visitation;
5. The child is adopted by a stepparent, another grandparent or other blood relative.
The court will grant grandparent visitation only if it is in the grandchild’s best interest. The grandparent may have to prove to the Court that harm will occur to the grandchild in the absence of visitation. This is usually due to a compelling reason. A compelling reason is the only way a court may interfere with the parents’ fundamental right to the care, custody and management of their child. A court will deny grandparent visitation if the visits will endanger the child’s physical health or impair the child’s emotional development.
Prior to filing a grandparents’ rights case, the Court looks to see what measures the grandparents’ have pursued for said visitation. Have the grandparents attempted to enjoy visitation during both parents’ visitation times? Have they repeatedly asked for said visits?
The court may employ various methods to assist it in determining what is in the child’s best interest. The court may order a home study. A home study is an investigation performed by a court appointed investigator. The investigator may consult with anyone with information about the child and that child’s living arrangements to determine if the grandparent visits are in the best interest of the child. The investigator prepares a report for the court based on the information found.
The court may appoint a guardian ad litem to help determine the best interest of the child. A guardian ad litem is a licensed Missouri attorney appointed by the court to represent the interest of the child in this particular litigation.
Third, the court may consult with the child regarding the child’s wishes to determine the best interest of the child. This occurs only if a guardian ad litem is not appointed on the case or if the case is taken to trial. The Court may also order the parties to mediation or family counseling, in an attempt to settle the issues.
The amount of visitation that can be ordered is within the discretion of the Court.
In many cases, grandparents could be a valuable part of a child’s life. However, the parents also have rights which can be defended in court. Hopefully, the grandparent/grandchild relationship can be maintained without the need for court intervention. If that is not possible, however, the court system in Missouri may be able to help.
Margaret “Molly” P. Murphy is an Associate Attorney in the Arnold, Missouri office of Cordell & Cordell where she practices exclusively in the area of domestic relations. Ms. Murphy is admitted to practice law in the state of Missouri. Ms. Murphy was born and raised in St. Louis. She received her B.A. in Political Science and English Language and Literature in 1998 from the University of Tulsa where she graduated magna cum laude. Ms. Murphy received her Juris Doctor from the University of Missouri-Columbia in 2001.