What we need to know about
grandparent visitation rights
Grandparent visitation laws represent one way in which the State of Oklahoma is working to pre- serve family ties (Skrapka v. Bonner and the State of Oklahoma, 2008). As grandparents advocate for their rights (Grandparent Resource Center, n. d), a new legal conflict is emerging. The new legal conflict exists between the government’s role in protecting the rights of parents and allowing grandparents to visit their children (Henderson, 2005; Henderson & Moran, 2001; Soto, 2001; Troxel v. Granville, 2000).
Therefore, in this document readers have a brief overview of parental rights, the right to family, and grandparent visitation rights. Readers also will find a summary of the U. S. Supreme Court’s deci- sion about grandparent visitation. The next section summarizes Oklahoma’s grandparent visitation law. Because this document covers legal concerns, those terms, definititions and provisions are used.
Two of Five Fundamental Rights
The constitution and common law practices protect each citizen’s right to parent and to have a family. Several U. S. Supreme Court decisions have protected a parent’s right to rear their children as they see fit. The Court also made decisions about the right to family.
The Right to Parent: We have the “fundamental right” to the care, custody, control, and companion- ship of our children. Parental rights are a constitu- tional right (Harvard Law Review, 1980). The U. S. Supreme Court also has protected the rights of par- ents (e.g., Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Stanley v. Illinois, 1972; Wisconsin v.
The Right to Family: All citizens have a “funda- mental right” to personal and family relations (Lov- ing v. Virginia, 1967; Moore v. the City of East Cleve- land, 1977). Citizens may spend time with anyone they choose. They also have the right not to spend time with whomever they choose. The govern- ment is to stay out of the private affairs of families (Mnookin & Weisburg, 2005).
Society welcomes grandparents who decide to
rear their grandchildren. Yet, family law has not recognized grandparents as “legitimate” members of families. The U. S. Supreme Court did protect a household headed by a grandparent because it func- tioned like a traditional family of parents and chil- dren (Moore v. the City of East Cleveland, 1977).
Grandparent Visitation Rights
Grandparent visitation is not a constitutional right. Grandparent visitation rights are merely stat- utory rights, given by state legislatures. In any case, grandparents have the burden of proving their case. All states have some form of grandparent visitation laws. Among those laws that permit grandparents to file for visitation rights, there are two primary types
restrictive and permissive.
Restrictive Grandparent Visitation Laws
Derivatives of right: These laws allow grand- parents to petition for visitation when their own child does not have access to their grandchild due to death, or parental incompetence, unfitness, or incar- ceration (Bostock, 1994; Gillman, 1995; Hartfield, 1996; Walther, 1997).