But, as we all know, the relationship between grandparents and the parents of their grandchildren is not always lollipops and birthday presents. Especially when one household becomes two households, or a disagreement explodes into a full-blown family fight, rifts between parents and grandparents can and do occur. I get calls more often than I would like from grandparents wanting to know what they can do about a parent's cutting off the grandchildren's contact with grandparents. And the really, really bad news on the legal front is...probably not that much.
Most people in this day and age hear phrases like "grandparent visitation" and "grandparents rights" and, probably due to popular media's para-phrasing of legal doctrines, believe that grandparents have a right to see their grandchildren. Au contraire, said the U.S. Supreme Court in 2000. (And yes, this happened 8 years ago, and people still don't understand) See, what happened in the case of Troxel v. Granville, is that Washington (the state, not the dead president) passed a law that gave grandparents broad visitation rights with their grandkids. Under that law, a fit parent could be ordered by the court to allow contact between grandparents even if that fit parent objected to the kids seeing the grandparents. The U.S. Supreme Court took the side of fit parents and held that it violates a fit parent's due process right for the state to intervene in parenting matters and force grandparent visitation.
Well, then the states were stuck deciding what to do with all these grandparent visitation laws that they already had on the books. Some states got rid of the laws and some states, like Massachusetts, kept the laws and left it up their courts to decide how the law could be applied so it would still be constitutional. And the mess in Massachusetts began...
No matter how fun you think it might be (and trust me it's not), I am not going into the lengthy (and tedious) discussion on what the standard for grandparents rights is in Massachusetts. It is confusing to say the least, and there are entire seminars and roundtable discussions attended by lawyers AND judges who still can't make complete sense of the Blixt v. Blixt case that supposedly lays out the Massachusetts standard. If you want to know more, you can read the cases or email/comment about it, but me? I'm going to pull a Palin, go rogue and give you very important options outside of the "grandparent visitation" box. This brings us to the "What is a Grandparent to Do?" section, where I will take the most common scenarios and give what I think is the best option.
What's A Grandparent to Do?
Ok, well first, probably not show off their "crooked finger" like Grammy is in this never-not-funny photo...ok, really though...
Scenario #1: Grammy is your "typical Grammy." She always sees the kids on holidays and about once every 1-3 weeks for a dinner or family gathering. Special outings and sleepovers are part of the relationship as well. Grammy hears that her son and his wife are getting divorced. Wife and Grammy never got along, Grammy is afraid she won't get to see the kids anymore.
Alternate Scenario #1a but same Answer: Grammy's son is having a baby with woman he is no longer seeing. Mother of baby dislikes Grammy and is angry about the break-up. Grammy is upset and concerned she won't be able to see the baby.
Alternate Scenario #1b but SAME Answer: Grammy refuses to listen to her son and daughter-in-laws requests when she is around the grandkids. Parents say grandkid can't have soda, Grammy gives soda. Parents say no TV, Grammy gives TV. Parents raise the child Jewish, Grammy gives him a crucifix for Christmas. (You get the idea) Parents finally get fed up and stop bringing the grandkids around.
Answer #1: None of these is a scenario where grandparent visitation would likely be granted. First, grandparent visitation does not apply when the parents are still living together! This type of traditional grandparent relationship is a privilege, not a right. Therefore, Grammy should work on supporting her relationship with her child (which definitely means following the parents wishes). In the divorce/separation scenarios, the best option for spending time with the grandkids is to see them when it is her son's parenting time. This also works if Grammy has a great relationship with the parent who is not her child and a rocky relationship with her own child. And, of course, it applies when Grammy is having a difficult relationship with both parents. Both in tact and newly separated parents need lots of support from family and friends as it is, so inviting them over for dinner (or any event where food is served really), offering to help pick the kids up from school, offering to babysit so parents can get a break, things of that nature, can not only be time with the grandkids but helpful to the parents (so long as Grammy realizes the whole "privilege not a right" thing and follows the parents wishes). Channeling some of that gift-giving spirit towards school clothes or the cost of sports/extra-curricular activities is also a great way to help a separated(ing) parent (or an in tact family) and spoil the grandkids a little (especially if Mom or Dad would never buy Hannah Montana shoes). ALWAYS ALWAYS ask or offer your suggestion to the parent first (and out of earshot of the grandkids). Only talk to your grandchildren about it after the parent has given the ok. Even when it comes to well-intentioned outings and gifts, parents need to be a parent and not have their toes stepped on. With divorcing/separated parents, this is especially true since the parents are in the best position to know how close the dreaded "Spoiled, Unruly Kid Whose Parents Overindulged Him/Her After Their Divorce" Syndrome is looming at large.
And absolutely, Grammy should also stay out of the divorce/separation process! Following the rule of "If you don't have something nice to say, don't say anything at all" usually does the trick. Grandparents with good intentions can risk alienating themselves from the children's other parent (or their own child) and *usually* end up making the situation worse. Also, any badmouthing of the other parent to the children could lead to a court ordering both parent to keep the children AWAY from the grandparents, which is the total opposite of what most grandparents want to happen.
Bottom Line: Communicating with one's own child about time with the grandkids is the number one option for maintaining the grandparent-grandkid relationship. Period. Building and nurturing that primary relationship is the best use of emotional and financial resources for everyone.
Scenario #2: The grandchildren have lived in Grammy's house with their parents for five years. Grammy has acted as a third parent, acting as a routine day care provider, cooking meals, giving baths, all with the blessing of the grandchildren's parents. Grammy and parents get in a big, nasty disagreement, parents move out and cut off contact with Grammy in anger.
Answer #2: First, try try TRY to rebuild/repair the relationship with the children's parents (See Answer #1). If every possible effort fails, it may be time to consider de facto parent visitation. First, if the parents are still living together, grandparent visitation does not even apply. However, Massachusetts has a fairly strong de facto parent law. Basically, if a non-parent truly acts like a parent, with the parents blessing, the court may give the non-parent scheduled time with the children. The facts in this scenario closely match the requirements for de facto parent visitation. A grandparent in this type of scenario should contact an experienced family law attorney (ahem!) and discuss how to proceed getting time with the kids as a de facto parent.
Bottom Line: First, try to maintain the relationship with the parents. It's just better for everyone. If it can't be done, then remember that just because someone is a grandparent doesn't mean grandparent visitation is their only option.
Scenario #3: Grammy discovers that parents are neglecting the children and using drugs while children are in the house or present. When she tries to talk to the parents about it, parents cut off all communication.
Answer #3: In this scenarios, the parents are acting as unfit parents. But STILL, try to support and maintain the relationship with the parents. In this case, it could mean an intervention, supporting rehabilitation efforts, family therapy/counseling, Grammy caring for the children temporarily while the parents get help and definitely, Al-Anon for Grammy (because this is a family process). If those efforts are truly exhausted, then to the courts we go.
If Grammy is able and willing, she should seek guardianship of the children. She should speak to an experienced family law attorney (double ahem!) about filing for this in the Probate Court. If the children are truly in immediate danger,a temporary guardianship can be put in place on a emergency basis. Reporting the situation to the Department of Children & Families is also an option, however, an emergency guardianship through the Probate Court can achieve the same protection of the children, and when the emergency is over, the case in the hands of the grandparents, not the state.
If Grammy does not want "full custody" of the grandchildren, THEN this could be a case for grandparent visitation, but probably through whomever the guardian of the children is. Grandparent visitation does not apply to families where the parents are still living together!! Consultation with an experienced family law attorney is crucial at this point, as care needs to be taken as to what happens to the children with regards to custody.
Bottom Line: Tread lightly. A family will never be the same after a court case has been filed. Consulting with a family lawyer does not mean hiring someone to charge into court. If you consult with the "right" lawyer, they should be able to provide you with step by step options before anything is filed in court. Only when all out of court options have been exhausted should grandparents seek to litigate to see their grandkids.
As always, questions on this topic are welcome via email through my firm's website and the comment section below. This is an ever-developing, gray and messy area of law, further clouded by misunderstandings in the normal, non-law world. It is also one that hits so close to the heart for so many loving grandparents. Having an experienced family law attorney that not only knows the current state of the law, but also the "life costs" that can be involved in these cases can mean the difference between a separated family and a broken one.
No comments:
Post a Comment