Supreme Court Declines to Hear Grandparent Visitation Case

The United States Supreme Court has declined to hear a Pennsylvania man’s appeal that raised the question of whether grandparents should be required to show that keeping children away from grandparents would be harmful to the children as a condition for granting the grandparents visitation rights. The Pennsylvania Supreme Court ruled, in Fausey v. Hiller that no such showing is required. In denying Shane Fausey’s petition for certiorari, the Supreme Court declined the opportunity to clarify an area of the law that they left fairly muddled the last time they considered the issue in a case that resulted in a badly splintered Court and multiple opinions.

Amicus Briefs in Supreme Court Grandparent Visitation Case Available Online

Howard Bashman at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case currently pending in the US. Supreme Court, Fausey v. Hiller, No. 06-863.Many thanks to Howard for making these available.

More on the NY Grandparent Visitation Case

Daniel Clement has posted the following analysis of the New York grandparent visitation decision on his blog, the New York Divorce Report:

The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child'” (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue — e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and attitude toward father, the law guardian’s assessment, the child’s wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild” (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild” (Matter of Emanuel S., 78 NY2d at 181

Source: New York Divorce Report.

New York Court Upholds Grandparent Visitation

The New York Court of Appeals, that state’s highest court, has upheld the state’s grandparent visitation statute. The law permits grandparent visitation rights where it is shown that one parent is deceased, or equity would otherwise warrant such visitations. As I noted in a previous post on this issue, the Pennsylvania Supreme Court in a recent case, likewise found that orders requiring grandparent visitation do not violate the custodial parent’s 14th amendment right to raise his or her children as he or she sees fit. A petition for certiorari, seeking review in the United States Supreme Court, has been filed in the Pennsylvania case. Whether in the context pf the Pennsylvania case or otherwise, there can be little doubt that the Supreme Court will ultimately have to weigh in on this issue again.

New York Court of Appeals to consider grandparent visitation

Today’s New York Sun contains this article about a case now pending before the New York Court of Appeals – that state’s highest court – that involves the constitutionality of court ordered grandparent visitation. As the author correctly notes, when the Supreme Court last took uo the issue the case resulted in a court so fractured – 6 opinions were issued – that the decision provides oittle practical guidance. Closer to home, the Pennsylvania Supreme Court has ruled that such orders do not violate the parents’ constitutional right to raise their children as they see fit (link to the majority opinion here). Howard Bashman, publisher of the How Appealing blog, is appellate counsel to the losing party in that case, and has filed a petition for a writ of certiorari to the United States Supreme Court. You can be certain that the US Supreme Court will have to take up the issue eventually.