Common Law Limited Grandparents' Ability To Visit

Under common law, grandparents did not have a legal right to visit grandchildren if the birth parents denied contact. If an obligation existed to allow grandparent visitation it was a moral one, not rising to the status of a legal right. A parental decision to diminish or prevent visitation was honored because conflicts between parents and grandparents would be contrary to a child's best interests; or, in the context of divorce, because grandparent visitation would place an additional burden on the custodial parent.

English chancery courts sometimes allowed grandparent visitation in instances where a parent had abandoned the child, the child had lived with the grandparent for a period of time, or where there was an agreement or stipulation as to visitation. Courts began to grant visitation rights to grandparents when one (or both) of the biological or adoptive parents had died because the family unit had been disrupted.

The earliest grandparent visitation statutes were narrowly drawn to remedy a perceived need of the child, i.e., to maintain contact with a grandparent after death of one of the parents. The grandparent stepped into the shoes of the deceased parent and became the representative of that side of the family. Therefore, some states find grandparent visitation to be contingent upon there being a divorce, out-of-wedlock birth, or death of a parent.

The U.S. Supreme Court Addresses Grandparents' Rights

While early discussion of the value of grandparent visitation focused on the biological link, the focus has shifted in recent years toward a recognition of the benefits to the child of having a grandparent in his or her life. There is substantial literature on the importance of grandparents in giving a child a sense of security and extended family, a respect for older people, less fear of old age, and an emotional sanctuary with unconditional love and acceptance. Additionally, grandparents may provide continuity and stability for a child whose "family" has been fragmented by divorce or death.

In arguing the constitutionality of its grandparent visitation statute before the United States Supreme Court, the Wyoming Supreme Court cited social science literature identifying four ways that grandparents influence their families:

  • The " being there" role assists in transitions and serves to maintain the identity of the family. Grandparents serve as a stabilizing influence.
  • As the " family watchdog," grandparents can look for signs of abuse or neglect.
  • In their " arbitrating" role, grandparents actively negotiate between parents and children as to values and behaviors.
  • As " interpreters of family history," grandparents give perspective on the past, present and future.

The United States Supreme Court has cut back on the use of the "best interests" of the child test for awarding grandparent visitation because it found that no deference was being given to the right of a parent to rear a child without interference. Thus grandparents have a higher burden of proof and need to show harm to the child from not having visitation.

Understand The Roots Of Grandparents' Rights Law

To learn more about the historic perspective of grandparents' rights, contact a lawyer at the law firm of Shaffer & Engle Law Offices, LLC, in Harrisburg, Pennsylvania. Our child custody attorneys can help you form a parenting plan that meets your needs and interests.