Volume 18, Number 7
October/November 2001

Developing Trends in Nonparent Visitation Custody Cases

By Mary Ann Baker-Randall

More and more often I am seeing potential clients who are seeking custody of or visitation with minor children who are not their own. In recent years, grandparents and other relatives have become a significant portion of my client base, a change that reflects a national trend.

The following scenario is typical: A couple makes an appointment with me and reports, "Our 30-year-old daughter, Chloe, goes from one abusive relationship to another. She has three kids by three different fathers. Rarely does she see a child support check. One father sees his child occasionally; one father never admitted paternity; and the other father is serving a long prison sentence. Every time our daughter gets into a mess, she drops the kids off with us, sometimes for a few days and sometimes for months. One time we got a call from the police in another state, telling us to come pick up the kids or else they would go into foster care. These kids don't know if they're coming or going, and we want to stop the yo-yo game. What can we do?"

Over the past few years, a series of decisions has altered the landscape of custody and visitation rights. This article highlights how these changes affect interested parties who are not the parents.

Visitation
The Supreme Court decision in Troxel v. Granville1 found a Washington State visitation statute to be unconstitutional in that it circumvented a parent's right to make all fundamental decisions concerning the welfare of his or her child. Instead of presuming that the parent was fit and acting in the best interest of the child, a Washington State superior court judge had ruled that the grandparents' request for additional visitation was in the child's best interest. In doing so, the Washington superior court shifted the burden of proof from grandparent to parent, forcing the parent to prove that granting visitation rights to the grandparents would cause harm to the child.

Before Troxel v. Granville, I felt relatively secure in handling grandparent visitation cases, whether representing the grandparent seeking to reestablish contact with beloved little Johnnie or representing the parents who had good reason to cut off contact. In my state of New Mexico, we have a fairly clearly drafted statute that sets out the limited circumstances in which a biological or adoptive grandparent or great-grandparent may seek judicial intervention to mandate a visitation schedule. I was confident that the narrow scope of the statute would survive a Troxel-like attack. Now I am less sure.

As a regular participant in the ABA Family Law Section's listserv, I have noticed a recent trend in the courts denying nonparents visitation rights. In the last few years, a number of states' nonparent visitation statutes have been overturned on constitutional grounds. For example, the Illinois Supreme Court struck down its grandparent visitation statute in Lulay v. Lulay.2 In Connecticut, the state supreme court decided in Castagno v. Wholean3 that despite the lack of any threshold requirement in the applicable statute, a grandparent visitation claim could not be entertained in the absence of a showing that the family was no longer intact, or that the family was already involved in some case or controversy. In California's version of the Troxel scenario, Kyle O. v. Donald R.,4 the Court of Appeal decided that California's nonparent visitation statute as applied in the particular case unconstitutionally infringed upon the father's fundamental parenting rights.

Maine's supreme court is one of the few to buck this trend. In a November 2000 decision, Rideout v. Riendeau,5 the court upheld the constitutionality of its Grandparent's Visitation Act in a case in which the children were living with their legal parents, who objected to contact by the grandparents. The grandparents had a substantial prior relationship with the children, and the court held that the statute permitting contact in such situations met a compelling state interest that trumped the parents' right to object.

These cases are just the tip of the iceberg. The Troxel decision has given parents stronger constitutional grounds for opposing court-ordered visitation by grandparents and other relatives. If your state has not yet jumped into the fray, it behooves you to seriously evaluate a potential client's request for nonparent visitation because you may be looking at "test case" material.

Custody
In recent years, many nonparent clients have sought physical custody of someone else's children. Most states offer three legal avenues for a nonparent to obtain custody of a child: custody granted under the family code (divorce or paternity), guardianship, and adoption. Some states, like New Mexico, have recently enacted "kinship guardianship" acts that make it easier for a relative to obtain guardianship of a child who has been in that relative's care and control for specified periods of time.

When couples break up, divorce and paternity laws help to determine legal custody of the children and establish visitation. These laws also typically allow certain other people, such as grandparents and relatives, to ask the court to award them custody of the children and to allow them to control when the parents visit the children. The advantages of seeking custody under the family code are:

1. The parties will have an experienced family court judge presiding over the case (if your area has a dedicated family court).
2. The parents' parental rights are not permanently terminated, so if they straighten out their lives, they can regain custody of the children.
3. Court-affiliated psychologists and counselors can sometimes be called upon to make custody and visitation recommendations.

The disadvantages of custody under the family code are:

1. The order granting custody to the nonparent is not permanent so the parents can repeatedly file motions to change custody back to them, keeping the entire family in constant litigation.
2. Sometimes the court-affiliated psychologists are so overworked that decisions take many months, leaving the children in limbo.

Legal guardianship is the most common method for nonrelatives to step into the shoes of the parents without actually terminating the parents' parental rights. Guardianship laws are often found in the probate code, and typically allow any "interested party" to seek appointment as the legal guardian of a minor child. Many parents are willing to agree to guardianship because their rights are not terminated and because they have an inability to properly care for the children at that time. If the parents give consent to guardianship, the paperwork can be prepared in the attorney's office and submitted to the judge for execution without anyone having to appear in court. Once an Order Appointing Legal Guardian is issued-whether by consent or after a hearing-the order stays in effect until is it dissolved by agreement or after a hearing.

Some benefits of legal guardianship are:

1. The guardian can often put the children on his or her private insurance plan.
2. The guardian can enroll the child in school, consent to medical treatment, and obtain welfare and/or Social Security benefits, if applicable.
3. The process can be quick and relatively inexpensive if all parties cooperate.
4. The guardianship often ends up being permanent without the time, complexity, or expense of adoption.
5. The window remains open for the parent(s) to regain custody if circumstances change.

Some problems with guardianship are:

1. Regular civil or probate judges, rather than family court judges, may preside over guardianship cases; sometimes these judges are not very familiar with custody practices.
2. Protracted litigation may occur if one or both parents oppose the guardianship.
3. One or both parents may repeatedly file motions to dissolve the guardianship, even if the parents are not ready or able to care for the children.

One last way a nonparent can gain legal custody of a child is through adoption. Adoption is both expensive and permanent. Once the grandparents or other relatives become the legal parents of the child, they can't "give back" the child to the biological parent. If one or both biological parents object to the adoption, then their rights must be involuntarily terminated. The burden is on the adopting relative to prove that the parent is "unfit" now and for the indefinite future, even with assistance such as drug or alcohol treatment, parenting classes, psychological counseling, financial assistance, and so on. This usually involves major litigation and often tears families apart when family members end up taking sides with either the adopting relative or the biological parent-leaving the children caught in the middle.

As the definition of "family" becomes murkier, the family lawyer's role expands. The trend toward nonparents seeking court-ordered visitation or custody does not seem to be going away. It is imperative that we keep in mind not only our duty to zealously represent our client, but also to honor our ethical obligation not to pursue legal actions that are not in the best interests of the child.

Notes

1. 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion).
2. www.state.il.us/court/Opinions/SupremeCourt/ 2000/October/Opinions/html/87874.htm.
3. 239 Conn. 336, 684 A.2d 1181 (1996).
4. www.courtinfo.ca.gov/opinions; then go to Third Appellate District.
5. www.courts.state.me.us; then search for Rideout.

Common Scenarios for Nonparent Custody Cases

  • "Our nephew and his girlfriend, Jill, had a baby when they were teenagers. Neither of them could take care of the baby properly. For the last four years, we've practically become full-time babysitters. We've bought all the clothes, done all the doctor visits, and supplied all the baby gear. Now Jill wants to move out of state with her new boyfriend, and she says she'll take the baby with her. How can we keep the baby?"
  • Our grandson has medical problems and behavioral problems. We'd like to get help, but we can't afford it unless we put him on our health insurance policy. How can we legally do this?
  • A friend of ours at church told us about a teenager who just had a baby. She doesn't want to give the baby up for adoption but she can't raise the baby herself because her parents never knew about the pregnancy. She's certain her parents would not understand and would try to force her to give up the baby. We'd like to help her out and take the baby for a few years. We're not licensed foster parents and we can't become licensed since my husband has a drug-trafficking conviction from years ago. My husband hasn't had any legal trouble since then. He's a good man and a good father to our own son. Is there any way to get custody of this baby short of adoption?

Short answer: Guardianship would likely work in all three scenarios, particularly with the support of one of the biological parents.

Mary Ann R. Baker-Randall is a Board Certified Specialist in Family Law in Albuquerque, New Mexico. She can be reached via e-mail at maryann@familylawnm.com.

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