Over the last several decades, increasing numbers of grandparents have been denied visitation rights after divorce. In response, grandparents have joined together to get laws passed giving grandparents the right to petition for visitation in the case of divorce or parental death.
One by one, these laws were adopted in various forms, until all states had one. However, once the laws were established, it was found that grandparents who had visitation in one state would have to litigate all over again if their grandchild's custodial parent moved to another state.
The Visitation Rights Enforcement Act was signed into law on November 12, 1998 and was a major improvement in achieving a uniform state visitation law making provisions for grandparent visitation consistent from state to state.
It guaranteed that grandparents can visit their grandchildren anywhere in the United States as long as they have visitation rights in one state. This law does not impose a federal decision about a grandparent's visitation right in any state. It calls for reciprocal recognition of grandparents' rights once a state has established those rights.
In the landmark 2000 case of Troxel v. Granville, the United States Supreme Court ruled that a Washington State law went too far in permitting a judge to order visiting rights for grandparents over a mother's objection.
The Court ruled that parents "have a fundamental right to make decisions concerning the care, custody and control" of their children. The court offered no guidance regarding the constitutional legality of similar laws in the 49 other states where other such laws have been passed. The findings stated that the law had been unconstitutionally applied to court ordered visits by the grandparents in the case in question.
In this particular case, the grandparents, Gary and Jenifer Troxel petitioned the Court to allow them to visit the children of their late son who had committed suicide. No claim was made that the mother was an unfit parent. The mother of the children was willing to allow some visitation rights to the grandparents, but not the requested 2 weekend a month schedule.
The mother's attorney argued that in the absence of any evidence that the children were being harmed; the parent should have absolute veto power as to who should be allowed to visit her children. The grandparents’ attorney argued that the state has the power to pass such a law.
Justice Sandra Day O'Connor represented the majority stating that "So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."
In his dissenting minority opinion Justice Arthur M. Kennedy stated that the court should have confronted rather than have avoided the question as to the constitutionality of laws regarding visitation rights being in the best interests of the children.
In his view such laws could be constitutional if directed to people who had acted "in a care-giving role over a significant period of time." In his dissent Justice John Paul Stevens warned against adopting a rule that would allow parents to exercise "arbitrary" power over their children's contact with other adults.
In summary, fit parents have the exclusive legal right to determine who visits their children. So, grandparents must – no matter how difficult it may be – try to get along with their sons, daughters, sons-in-law, and daughters-in-law because, in most instances, they alone can determine visitation.