The Limits Of Grandparent Visitation

On behalf of The Marks Law Firm, L.L.C posted in Child Custody on Wednesday, March 13, 2013

Often when a mother and father break up, others get caught in the crossfire and become collateral damage. Frequently, each partner’s families take sides and worry that they will lose significant contact with the children of the relationship. Perhaps the ones who worry most are grandparents, who likely have spent much time with their grandchildren and given much to help raise them and ensure their welfare.

Grandparents do have a remedy in these legal battles – Missouri has a statute that allows grandparents to intervene and seek visitation rights. But how much are grandparents entitled to receive? The Eastern District addressed that issue this week in the case of T.W. and R.W. v. T.H.

Father and mother had one child out of wedlock, and the parents never married. Mother lived with her mother (the maternal grandmother) and the child, and the maternal grandmother provided a great deal of childcare assistance. However, mother and maternal grandmother had difficulty getting along, and eventually, mother announced she was moving out with the child. Maternal grandmother responded by making numerous hotline calls and father filed a paternity action, beginning a very lengthy custody battle. Maternal grandmother filed a petition for guardianship, alleging that the mother was unfit. The court consolidated the paternity action and the guardianship, but critically, maternal grandmother never raised a claim for grandparent visitation rights. By trial, father had failed drug tests and disappeared from the picture; the court heard extensive evidence and concluded mother was a fit parent and no guardianship was necessary. The court granted sole legal and physical custody to mother, awarded father supervised visitation, and gave maternal grandmother extensive visitation rights – every other weekend and one night during the week.

Mother appealed, arguing that the extensive visitation given maternal grandmother violated her constitutional rights to parent her child and that maternal grandmother never asserted in a pleading a claim for visitation rights. The Eastern District agreed with mother. First, the U.S. Supreme Court, in Troxel v. Granville, decided in 2000, held that fit parents have a fundamental right to raise their children without government interference in those decisions – only when those decisions pose a threat of harm to the children will the government have a right to intervene. The Supreme Court did not rule on the validity of third party visitation statutes, but suggested that to survive constitutional scrutiny, they cannot substantially interfere with the fundamental rights of fit parents. After Troxel, the Missouri Supreme Court upheld the constitutionality of the grandparent visitation statute by giving it a narrow reading based on a limited right to “occasional, temporary visitation” that only comes into play after a 90 day period of denial of visitation. Hence, under these precedents, the Eastern District in T.W. concluded that regular, weekly visitation of the magnitude ordered by the trial court far exceeded the constitutional bounds of Troxel and anything that the grandparent visitation statute would allow. But the Court went further, noting that maternal grandmother never filed a pleading asking for grandparent visitation rights, and the trial court can only award relief properly pleaded and placed before the court. Hence, because of the scope of the custody award and the lack of proper pleading, the Eastern District vacated all rights of visitation awarded to maternal grandmother.

This case has two obvious takeaways. First, unless a grandparent properly intervenes and explicitly pleads for statutory visitation, the grandparent will have no legal claim to enforce. Second, a trial court cannot grant a grandparent more than occasional, temporary visitation, which would be something as minimal as once every 89 days – or four visits per year.

If you have issues with grandparent visitation rights, contact us – we can help.