The Changing Role of Grandparents in America
In America, approximately 5.8 million children live in homes where the grandparents are the homeowner. More than 2.5 million grandparents take the role of caregiver for these children. One million children live in a home with grandparents where no parent is present. The role of grandparents has changed in the past few decades as more and more grandparents are raising their grandchildren.
Even for grandparents who are not raising their children, the role of grandparents has expanded as grandparents are living longer and are a larger part of their grandchildren’s lives. According to Arthur Kornhaber, M.D., president and founder of the Foundation for Grandparenting, has identified 11 roles grandparents play in the lives of their grandchildren.
- Ancestor – A grandparent is the head of the family and the link to family history.
- Buddy – Because a grandparent does not have to deal with the day-to-day discipline issues, grandchildren often have a more comfortable, friendly relationship with a grandparent encouraging the child to discuss and share sensitive issues with the grandparent.
- Hero – A grandparent can take the role of hero in several ways but most importantly, it gives the child someone to look up to and model his or her life after.
- Historian – Grandparents represent a living witness to the family’s history.
- Mentor – A grandparent teaches important life lessons but he or she also is a cheerleader to encourage the child and give the child a sense of self-worth.
- Nurturer – This role goes beyond what a parent can provide by giving the child an “emotional and social safety net” to make the child feel secure and safe.
- Role Model – By his or her actions, a grandparent can have a positive influence on the child.
- Spiritual Guide – Grandparents teach children about love, compassion, joy, peace, faith, kindness, tolerance, and reverence.
- Student – Grandparents also learn from their grandchild.
- Teacher – Grandparents have many years of experience and knowledge they can impart to their grandchildren that can never be learned from a book.
- Wizard – Imaginative play is important for young children as they develop their verbal and intellectual skills.
In addition to the various roles that grandparents play in the lives of their grandchildren, it has been shown that children who have their grandparents play an integral role in their lives enjoy various health boosts. Some grandparents provide a safe and stable home when parents must work. They provide constant and stable care for the child. Grandparents also provide help children deal with adversity by providing a constant, loving, and steady shoulder to lean on during times of trouble. Grandparents provide unequivocal love and affection, which is extremely important to a child’s self-esteem.
In addition to the health benefits, researchers from Boston College found mental health benefits associated with a strong relationship between grandchildren and grandparents. The relationship benefits children as they become adults and continue a close relationship with their grandparents. The results of the study indicate, “We found that an emotionally close grandparent-adult grandchild relationship was associated with fewer symptoms of depression for both generations. The greater emotional support grandparents and adult grandchildren received from one another, the better their psychological health."
What are Grandparent Rights?
Grandparent rights have been the subject of debate for decades. At the center of the debate is a parent’s unconditional right to choose who will and will not be involved in the child’s life versus a grandparent and a child’s right to have a close relationship. Grandparent rights is the legal concept that courts can order parents to allow their children to spend time with their grandparents.
At this time, all 50 states have some type of grandparent rights laws; however, there is great disparity between the laws of each state. The American Bar Association has a chart detailing the third-party visitation criteria for all 50 states. Several state courts and the United States Supreme Court have ruled on this subject. Ohio is one of the few states that have taken a very strong stance on grandparent rights.
What are Courts Saying about Grandparent Rights?
In a Washington State case, a mother opposed her in-laws receiving expanded visitation with their grandchildren after her husband passed away. The grandparents petitioned the court under Washington Rev. Code §26.10.160(3) that stated any person can petition for visitation rights at any time and the state superior courts may grant such visitation if it is in the child’s best interest. A Washington State Superior Court granted the grandparents petition and ordered expanded visitation. The mother appealed the decision to the Washington State Court of Appeals. The State Court of Appeals overturned the Superior Court decision and the Washington State Supreme Court affirmed.
In its opinion, the Washington State Supreme Court held that the code section “unconstitutionally infringes on parents’ fundamental right to rear their children.” The case of Troxel v. Granville, 530 U.S. 57 (2000), was appealed to the United States Supreme Court. The US Supreme Court upheld the decision of the Washington Supreme Court stating in part that the Washington State statute violated the mother’s “due process right to make decisions concerning the care, custody, and control of her daughters.” Troxel v. Granville was a powerful blow to grandparent rights throughout the United States; however, not all states have adopted the opinions in Troxel v. Granville.
In a more recent case, E.R.G. v E.H.G. (11-311), the US Supreme Court denied to hear a grandparent rights case from Alabama. The parents of two children denied visitation with the grandparents after a business dispute caused a falling out between the parents and the grandparents. Up until that time, the grandparents had a close, loving relationship with their grandchildren. The grandparents petitioned the court under Alabama’s Grandparent Visitation Act. A trial court sided with the grandparents and ordered regular visitation with the grandchildren. The parents appealed and the trial court was reversed. The case then proceeded to the Alabama Supreme Court. The Alabama Supreme Court ruled in favor of the parents and further ruled that the Alabama Grandparent Visitation Act was a violation of the parents’ due process rights.
The Alabama case represents a division among states on grandparent rights. At this time, 18 states require that the grandparents prove the parents are unfit or by removing the grandparents from the child’s life it will cause harm to the child. Other states begin with a presumption in favor of the parents and require that the grandparents prove that visitation with the child is in the child’s best interest.
How Does Ohio Law View Grandparent Rights?
The Ohio Supreme Court has ruled that the Troxel decision does not apply to grandparent rights in Ohio. In Harrold v. Collier, 107 Ohio St.3d 44 (2005), the court found that Troxel did not require “overwhelmingly clear circumstances” to support a grandparents right to visitation. The US Supreme Court had declined to define “the precise scope of the parental due process right in the visitation context.” Therefore, the Ohio Supreme Court ruled that Ohio’s nonparental-visitation statutes were constitutional in the present case based on the circumstances and the facts of the case clearly warranted granting the grandparents visitation with their grandchild.
Harrold set a precedence for Ohio courts to allow grandparent rights of visitation if the circumstances and the facts of the case demonstrate that visitation with the grandparents is in the child’s best interest weighed against the parent’s due-process rights. While grandparent rights are recognized in Ohio, the statutes governing a grandparent’s right to visitation and custody are complex. It is imperative that grandparents seek the advice and counsel of an attorney who has extensive experience handling Ohio grandparent rights cases.
When Does Ohio Grant Grandparent Rights for Visitation?
Ohio grandparent rights for visitation are permitted by statute in three situations:
- When the parents of the child are married and decide to end the marriage or the parents decide to separate;
- When one of the parents of the child is deceased; and,
- When the child is born to an unmarried woman.
However, the court must find that visitation with the grandparents is in the best interest of the child. The “best interest of the child” is the overriding principle in all custody and visitation cases including Ohio grandparent rights cases. In order to determine if visitation with the grandparents is in the best interest of the child, the court must consider the following statutory factors:
- The concerns and/or wishes of the parents;
- The child's prior interactions and interrelationships with the parents, grandparents, and other relatives;
- The location of the grandparent's residence and the distance between it and the child’s residence;
- The time which the child and parents have available taking into consideration schedules for employment, school, holidays, and vacations;
- The child's age;
- The child's adjustment at home, school, and in the community;
- The child’s wishes as expressed to the court if the court interviews the child;
- The child's health and safety;
- The availability of time for the child to be with his or her siblings;
- The mental and physical health of all parties concerned;
- The willingness of the grandparent to reschedule missed visitation;
- Any conviction of the grandparent or guilty plea by the grandparent involving a crime of child abuse or child neglect; and,
- Any other factor that the court may consider to determine the best interest of the child.
If the court denies the grandparent’s motion for visitation, the grandparent has the right to appeal this decision. This is another reason for grandparents to hire an experienced Ohio grandparent rights attorney who not only tries these types of cases but also has experience in the appeals process.
Ohio Grandparent Rights for Custody
In addition to allowing grandparent rights in Ohio for visitation, Ohio law also permits grandparents to sue for custody of their grandchild in certain situations. In order to win custody of their grandchildren, a grandparent must prove that both parents are unfit and that it is in the best interest of the child that the grandparents be given custody of the child.
As in other custody cases that involve unfit parents, Children’s Services is often involved in grandparent rights cases involving custody. It is important to retain an attorney experienced in dealing with cases involving removing a child from an unfit home who understands the process used by Children’s Services. If a grandparent believes a child is in danger or the parents are unfit, he or she needs to contact an attorney as soon as possible to file a motion with the court for custody.
What if the Parents Refuse to Allow Court Ordered Visitation?
If the court grants visitation under Ohio grandparent rights statutes, the parents must obey with the order. When parents fail to comply with court-ordered visitation or interfere with visitation, the grandparent can file a motion for contempt seeking an order compelling the parents to comply with the visitation order. Parents who are found guilty of contempt can be ordered to pay a fine and/or sentenced to jail time. The parents may also be ordered to pay court fees and attorney’s fees for the contempt action.
What Do Grandparents Need To Consider Before Petitioning To Exercise Their Grandparent Rights?
Before grandparents decide to exercise their grandparent rights by petitioning the court for custody or visitation, they should consider several serious consequences. For example, what are the long-term consequences of your decision to involve the court? This could damage your relationship with your own child. If you do win custody, are you prepared physically, emotionally, and financially to care for your grandchildren.
Are you prepared to do whatever it takes to win your case? You may be required to testify about sensitive matters regarding your own child including drug abuse, physical abuse, or mental illness. You must be prepared to use whatever tactical advantage you have in order to convince the court to grant your petition. In the event of abuse or neglect, are you willing to contact the authorities knowing that your child could be prosecuted?
If you ultimately decide to proceed with a motion or petition for visitation, be prepared to discuss specific details related to:
- Concerns regarding the children’s safety
- The role you have played in caring for your grandchildren
- Your relationship with your grandchildren versus the relationship of the parents with their children
- The parent’s weaknesses and strengths versus your weaknesses and strengths
- The extent you have assumed parenting functions for your grandchildren
The first step a grandparent should take is to contact an experienced Ohio grandparent rights attorney to discuss legal options for obtaining visitation or custody. Grandparent rights, even in Ohio, is still a complex legal issues that requires an experienced attorney to handle.
Jack W. Carney-DeBord is licensed and admitted to the practice law in the State of Ohio-ONLY. Jack has no intention of soliciting clients in any state other than Ohio and nothing posted on this website should be viewed as any attempt to solicit or do business in ANY state other than the State of Ohio.
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