Should the Law Recognize Grandparents’ Changing Roles?
Social scientists have long been aware of the significant role that grandparents in many minority and low-income families play in their grandchildren’s upbringing. These grandparents often live with or in close proximity to their grandchildren and provide much of their day to day care. The reasons are, in part, economic as the cost of child care has become prohibitive for many families, but they are also cultural. For example, African-American families have long been more likely than the rest of the U.S. population to rely on extended family members for child care. They are also more likely to encourage what I call quasi-parental relationships between grandparents and grandchildren as opposed to the “companionate” role that, according to sociologists Andrew Cherlin and Frank Furtensberg, the majority of grandparents play. Companionate grandparents play with their grandchildren, they buy them presents, and according to Dr. Kornhaber, the author of various grandparenting books, they become “a buddy,” “pal,” “secret confidante, and, at times, even a lighthearted conspirator” to their grandchildren. However, companionate grandparents have relatively little influence over their grandchildren’s upbringing and little desire for greater involvement.
If the majority of grandparents play only a companionate role in their grandchildren’s upbringing, current jurisprudence on grandparents’ rights makes a lot of sense. The Supreme Court in Troxel v. Granville (2000) held that parents’ constitutional right to raise their children as they see fit requires that their decisions to deny grandparents and other non-parents access to their children be granted “special weight.” Although the Court never defined “special weight,” the majority of lower courts interpreting Troxel have applied a presumption that parents’ decisions to deny non-parents visitation with their children is in children’s best interests.
Even if we agree that parents’ decisions about who shall have access to their children should be entitled to deference where the petitioner has played a relatively small role in the child’s upbringing, we have to question whether the same standard should apply where the petitioner’s role has been significant. In Troxel, Justice Kennedy cautioned against rejecting the best interests of the child standard in cases where a non-parent seeking visitation had played “a caregiving role” to the child “over a significant period of time.”
It turns out that an increasing number of grandparents are playing much more than a companionate role in their grandchildren’s upbringing. According to today’s NY Times, in an effort to help their adult children balance careers and parenthood, many more grandparents, of all racial and economic backgrounds, are becoming more involved in their grandchildren’s day to day care. Some have sold their homes and moved closer to their grandchildren, while others commute long distances to provide much needed child care. Other grandparents are taking time off from their own careers or retiring early so they can play a greater role in their grandchildren’s lives. Although most of these grandparents’ level of involvement in their grandchildren’s upbringing is less than that of the parents,’ they are clearly playing much more than a companionate role.
What happens in the small number, but unfortunately not rare, cases where the adult child and the grandparents have a disagreement (usually about something completely unrelated to the child) and the parent terminates the grandparents’ access to the child? In many cases since Troxel, courts have denied grandparents visitation even when they had lived with the child for a significant period of time and it was clearly in the child’s best interests to visit with them. Some courts have held that in order to rebut the parental presumption, the grandparents must show not only that the parent’s denial of visitation was unreasonable, but that the parent is unfit. This is a virtually unsurmountable standard absent evidence of child abuse or neglect. Other courts have required clear and convincing evidence that the child will suffer substantial harm absent visitation with the grandparent. Evidence that visitation is in the child’s best interests is not sufficient to rebut the presumption that the parents’ decision to deny visitation was made with the child’s best interests in mind. Only after the grandparent rebuts the parental presumption will the court consider evidence that visitation is in the child’s best interests.
Grandparent visitation suits are already quite common. As more and more grandparents play a greater role in their children’s day to day upbringing, it is possible that we will see even more visitation disputes in our courts. Grandparents who have played caregiving roles are unlikely to simply walk away when their children terminate all contact. Given this change in grandparents’ roles, has the time comes to rethink Troxel and its progeny?