Grandparents Day

[MYSONSDAD]

http://www.lewrockwell.com/mcelroy/mcelroy35.html

Grandparents Can't Trump Parental Rights
by Wendy McElroy    

On Sept. 12, National Grandparents Day, many grandfathers and grandmothers
will stare at photographs of grandchildren they cannot see or hug or
contact. Too often, grandparents of non-custodial parents are erased from
the family tree after divorce.

Largely because of such wrenching situations, the idea of "grandparent
rights" has gained traction.

But what of parental rights? And should another layer of law be added to
family relationships?

As the definition of family has changed, the role of grandparents has
shifted with it. Sometimes grandparents are excluded from children's lives,
as frequently occurs in contested divorces.

At other times, however, grandparents are forced to assume uninvited
responsibility, such as the surrogate parenting of grandchildren whose
natural parents are absent due to drug use, imprisonment or abandonment.

According to the 2000 U.S. Census data, 933,408 grandparents had been
responsible for the basic needs of their grandchildren for at least five
years.

Whether the issues of custody and visitation arise due to exclusion or to
increased responsibility, it is only natural for grandparents to want to
define their status in relation to grandchildren.

All 50 states have attempted such a definition, with significant variations
in the law. For example, in Colorado, the legal rights of natural
grandparents terminate when a child is adopted by a non-relative. In
California, natural grandparents may still claim visitation rights.

In 2000, the U.S. Supreme Court added its prevailing opinion in the landmark
case of Troxel v. Granville, which concerned grandparent rights in
Washington State. The Supreme Court concluded that parents who provide
adequate care have a Constitutional right to decide with whom their children
associate.

The decision seems to cancel out grandparent rights in the presence of
objections from a responsible parent.

In the aftermath of Troxel and with wide disagreement between state laws,
the issue of grandparent rights is currently in flux with no clear outcome.
For example, on Aug. 23, the California Supreme Court ruled in favor of a
grandparent's right to seek court-ordered visitation over a parent's
objections. The Court found that Troxel did not apply to the wording of its
state law on the matter.

With another appeal to U.S. Supreme Court possible, this is the moment to
ask, "What rights should grandparents possess?"

The cases in which grandparents have assumed custody for an extended period
are the easiest to address. Often, the court recognizes -- and reasonably so
-- that they have become "psychological parents." That is, they are
recognized as now playing a significant role in a child's "best interest,"
even if they have no legal standing. Such grandparents are often accorded
legal rights with regard to the child. With responsibilities come rights.

But what rights do non-custodial grandparents have when a parent objects?

With no pleasure, I conclude that such rights do not exist. Ask yourself: If
grandparents cannot claim the legal right to be included in the life of a
son or daughter, how can they claim a right to be included in the life of
that son or daughter's offspring?

Fortunately, grandparent rights are not a necessary or even the most
productive method by which grandparents can remain involved in their
grandchildren's lives. Indeed, those of us who believe that the legal system
usually exacerbates family problems would argue that layering new law on top
of the old only creates conflict. No law, no court, only privately agreed
upon arrangements: That's the ideal manner in which to resolve family
disputes.

Nevertheless, many disputes will go to family court. And when they do, the
laws and proceedings that offer a solution should be as simple and
straightforward as possible. Rather than complicating the law, alienated
grandparents should aim at simplifying it.

One measure in particular would constitute a large step in that direction:
the rebuttable presumption of joint custody. Most grandparents are alienated
from their grandchildren because the custodial parent, who is not their son
or daughter, refuses contact. Since mothers usually receive custody,
paternal grandparents are most vulnerable by far.

The best way for paternal grandparents to protect themselves in a divorce is
to fight for the establishment of a simple standard for custody.

The "rebuttable presumption of joint custody" means family courts should
presume that divorcing parents will share equally in the legal and physical
custody of children unless there is compelling reason to rule otherwise.
(The protest of a child or a history of parental abuse might constitute
compelling rebuttal.) Neither the mother nor the father would have a right
to unilaterally deny visitation to either set of grandparents.

The rebuttable presumption of joint custody would allow a child to enjoy an
extended family on both sides of parentage: grandparents, aunts, uncles, and
cousins. Just as a child should not lose a parent through divorce, neither
should a child lose half of his or her own history.

Indeed, as the nuclear family is redefined and placed under stress, the
extended family becomes more important as a safety net for children. By
fighting for equal custody rights for both responsible parents, grandparents
are fighting for themselves and for the children who both deserve and need
their love and protection.

My heart goes out to every loving grandparent who is cut off from knowing a
grandchild. For them, National Grandparents Day must bring a stab of pain
rather than joy.

September 9, 2004

Wendy McElroy [send her mail] is the editor of ifeminists.com and a research
fellow for The Independent Institute in Oakland, Calif. She is the author
and editor of many books and articles, including the new book, Liberty for
Women: Freedom and Feminism in the 21st Century (Ivan R. Dee/Independent
Institute, 2002).

Copyright C 2004 Wendy McElroy

For all the grandparents, I hope you at least have a chance to see yur grandchildren this Sunday...



"Children learn what they live"