The Grandparent Trap
What rights do grandparents have when parents divorce?
BY Jim Cosgrove
September 16-22, 2001 Issue | Posted 9/16/01 at 2:00 AM
Grandma and Grandpa: sweet old folks who spoil their grandchildren rotten—or the latest scourges in America's litigation boom? That's the question that arises in the wake of the July 6 West Virginia Supreme Court's 3-2 ruling upholding that state's law guaranteeing grandparents the right to visit their grandchildren after the children's parents divorce.
The Mountain State is not alone. In the wake of the proliferation of divorce in America, numerous others have enacted laws intended to assure grandparents visitation rights. And, like West Virginia, many of those states have had to defend their laws against challenges that they interfere with parents’ rights to raise their children as they see fit. The U.S. Supreme Court has declined to grant grandparents any special claims in visitation cases.
Would that it never had to come to this.
The legal scuffle over grandparents’ rights is one more sign that our culture is trying to cope with the fallout of no-fault divorce laws. The issue represents something of the schizophrenia affecting American family law. On the one hand, the law treats married partners as pure individuals with competing interests that can be put asunder by the uni-lateral decision of one party. But reality insists that marriage unites not only individuals, but families; one cannot step out of the constellation of interpersonal relationships forged by marriage and pretend nothing has happened.
John and Mary may think they can part “amicably,” but the impact of their divorce extends far beyond them. A prevailing myth claims that kids are better off if parents split up rather than if they “stay together for the children” while feeling unhappy or dissatisfied with one another. Social science, however, proves that this is not true: Kids are almost always better off in a real and intact family than in a family of divorce.
Grandparents'-rights laws suggest that generational impact cuts both ways: Not only do the children of divorce suffer by having difficulty establishing good marital relationships for themselves, but divorce also warps the normal relationships that extend backwards through generations (such as the natural bond between grandparents and grandchildren).
The changing role of grandparents is one aspect of the general demographic shift affecting American family life. If 50 years ago extended families were commonplace, an intact nuclear family today is almost exemplary (given the prevalence of broken families). Problems caused by the decline of extended families are compounded by the mobility of Americans. Grandchildren and grandparents are likely to live far apart. My grandma lived downstairs; my daughter's grandmother lives in another country.
Legislators considering grandparents'-rights laws may have images of little old ladies knitting in rocking chairs, but today's elderly are well-organized and, thus, politically powerful. Indeed, in some states, any candidate who opposes the agenda of the “seniors’ lobby” is playing with political suicide.
Are grandparents’ rights part of what Harvard law professor Mary Ann Glendon disparagingly calls “rights talk”—i.e., the proclivity to inflate conflicting policy choices to the level of competing “rights"?
“Rights talk” has, for example, encumbered constitutional law by turning ordinary political decisions into guaranteed and inalienable “rights” (like the so-called “right” to abortion). If the desire to give grandparents access to their grandchildren becomes a matter of legal rights, how far will these rights extend?
Grandparents have a certain claim in justice to see and know their grandchildren—but how far do those rights go?
In New Jersey, a state court decided that grandparents cannot seek judicial redress for infringement of their rights until all non-judicial remedies have first been exhausted. In the name of “grandparents’ rights,” could a state prevent a custodial parent from moving out-of-state? (One of the litigants in West Virginia threatened to move to South America to escape the court's “interference.”) Would the parents have to pay for Grampy's airline tickets if they, the parents, moved out-of-state?
Will courts require regular “telephone time” with grandparents, as a California court held? One can argue that, as extended progeny, grandparents do have a certain claim in justice to see and know their grandchildren, but how far do those rights go?
Catholic social thought rightly emphasizes the family as the basic unit of society. In different cultures, family authority is exercised in various ways. For example, in some Oriental cultures the elderly retain a certain primacy, even over the extended family, and respect for the elderly is greatly valued.
While extended families merit respect, the rights of the immediate family are under frequent assault today. American law ignores the social nature of man by treating families not as natural units but as conglomerates of contractual interests, sometimes cohering and sometimes conflicting. Various self-appointed do-gooders—like secular sex educators—arrogate to themselves the “right” to contradict parental decisions about how children should be educated. From one viewpoint, “grandparents’ rights” are another incursion by the state into families’ private matters.
Law is not a panacea for every social ill; every problem cannot be legislated away. One could even argue that the state's claim of the right to dissolve marriages—and especially no-fault divorce—is to blame for grandparents’ rights in the first place: If the state was not breaking up marriages, it would not have to guarantee grandparents the right to see their grandchildren.
One must ask if grandparents'-rights laws may even do more harm than good. In a typical case, they should be unnecessary. Most parents are presumably mature enough to recognize that regardless of what happened between them, their kids want and need roots. In many cases, custodial parents will not interfere with grandparents’ contact with grandchildren.
In those cases where family relations are so dysfunctional that a parent prevents a grandparent from visiting, the law is hardly the means to heal that rift. Forced visitation may even exacerbate family tensions. Law cannot substitute for the softening of hearts which penance demands.
Advocates of such laws can argue that grandparental visitation is in the child's interest by assuring access to the child by another concerned adult. It also helps kids by preserving the traditional grandparents’ role—a safety valve to the parent's well-meaning, but misdirected, concern.
Such access may be especially important if the custodial mother has a new boyfriend on the scene, for study after study has shown that the greatest peril to children is represented by unrelated adult males living in the same home. The question, of course, is whether “grandparents’ rights,” rather than reviewing the existing custodial arrangements under the traditional “best-interest-of-the-child” test, is the way to go.
Where should a Catholic come down on grandparents’ rights? As a Catholic theologian, I have to admit that I can't decide.
On the one hand, parental rights are paramount. The state should not interfere with them even if it is motivated by what's “good.” It may be good for kids to have a healthy relationship with relatives, but it's also good for them to eat healthy food or go to a Catholic school. Whether the good ought to be legally required, however, represents a big jump.
But Catholic theology would never see a family as just a bunch of atoms whose “rights” need coordination. Just as a baby has the right to come into the world, so children have the right to a family (including an extended family). A kid ought not to have to pick and choose among natural bonds of kinship. That's another reason the Church defends the indissolubility of marriage.
Until we discard the myth that divorce is good for children, “grandparents’ rights” may be the best bandage we have to staunch the social hemorrhage caused by the wound of divorce.
John M. Grondelski, a moral theologian, writes from Warsaw.
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