In August, 1995, two young parents stood before Judge King in Superior Court of Michigan City and learned the state had deprived them of one of the most basic parental rights that most parents expect, and indeed necessary, to child rearing-- deciding with whom ones children may associate. Just what crime did these parents commit that warranted to fine of 2500 dollars and a threat of spending time in jail? Had the parents abused their child? No evidence was offered by the court. In fact, testimony showed these were admittedly good parents, and the child was thriving since the marriage and the adoption by the mother's husband. Parents expected the state to uphold its promise made by 1C-31-3-1-9, that they would have the same right to the custody and control of their child as parents with natural born children. However, the judge made clear that he, not the parents, has the obligation to make the determination of what is in the best interest of the child. Something is terribly wrong in this state when two law abiding parents are forced to relinquish a basic, fundamental parenting right which their parents enjoyed.

In 1996, Robyn E. Blumner of The American Civil Liberties Union of Florida stated, "Grandparent Visitation Rights are Anti-Family." Parents, who are forced to comply with these non-parent visitation statutes, could make the argument that these statutes are really court sanctioned child abuse.

Ask Valerie. When her husband died, she gladly encouraged grandparent visitation. When the grandparent's behavior caused the situation to deteriorate, the mother decided to discontinue the contact. The paternal grandparents sued and received liberal visitation privileges in the Lawrence County Superior Court. These sweeping privileges included the mother's notifying the grandparents of any illness or injury, school activities, report cards or other extra-curricular activities, as well as any change of address or telephone number. They were even given the right to consent to any medical care for the children."

The mother remarried, moved to Alabama, and the husband adopted the children. However, the mother is still under court-order. She is ordered to pay half the expense for transporting the children back to Indian to visit the grandparents.

I received mail from Valerie on Christmas Eve. She was alone since her "children were court ordered to be somewhere other than home for the holidays." These are her exact words: "Every time the biological paternal grandparents come to pick-up, my youngest kicks, screams, cries, begs and bites when I am forcing him into the vehicle. This past week at pick-up, he climbed a tree to escape, and I was afraid for his safety. When I call them they cry and beg me to come and get them. It tears my heart out. I am supposed to be protecting them! What is going on in their little minds when the people they most count on can't seem to help them??? Is this really in the best interest of the children?"

Is Valerie's case an exception to the rule? Ask Mike Monschein of Indianapolis. He was granted custody of his stepchild in Colorado when his wife died. He took his two pre-school children (the stepchild and natural child) to Louisiana to visit their maternal grandmother. The county sheriff showed up and prevented Mike from taking the older child back with him. After taking the case all the way to the Louisiana Supreme Court, the father finally was able to retain custody of his daughter.

When the grandmother failed to gain custody of the child, she filed for grandparent visitation. The father is now under court-order to send his children to Louisiana for two weeks in the summer for "custodial visitation". The judge made this decision after acknowledging the grandparent had abused her own children, was prone to violent behavior, and lied to the court in a misguided effort to gain custody of the older daughter in violation of the Inter-state Child Custody Law. Frankly, the father is afraid the grandparent will not return the child. The father calls this legal kidnapping. He owes attorney fees in the thousands of dollars. He only wants the same freedom as other parents to rear his children without this disruption to his family. He is presently looking for a way to relocate to a state which will protect his parental rights, since he has not found this protection in Indiana.

I can give other examples. Parents in Hobart who are court-ordered to send their children to Colorado to visit their grandmother against the wishes of the parents and the children. The Kennedy family, formerly of Evansville, were luckier than most. Although the grandparent met the statutory requirement for visitation with the mother's adoptive child, the judge ruled it would be in the best interest of the child for parents to determine when and under what circumstances the grandparent could associate with the child due to the grandparent's history of mental problems. However, since the parents were planning to have other children, they felt compelled to move to Tennessee which honors parental rights more than does Indiana.

The courts have said that grandparent association with grandchildren can be an important part of child rearing under the proper circumstances. But should the state or should parents determine what constitutes "proper circumstances" in child rearing? Can we logically assert that all parents who have children out of wedlock are unable or incapable of deciding their child's best interest? When a parent's spouse adopts the spouses child, can we reasonably claim these parents are any less capable than parents of natural children of determining the best interest of their child? And where is the justice in assuming parents are not capable of deciding what is best for their children when there is no evidence that their parental decisions are harming the children?

This grandparent visitation law gives the presiding judge broad discretion to decide what is in the best interest of the child. There are two guidelines for a judge to consider in making this determination: First, has the grandparent had contact with the child? Second, has the grandparent attempted to have contact with the child? In addition, the courts have said these two guidelines are only the starting point. Essentially, the judge has unlimited discretion. The elected judge at the trial court level has been given this awesome responsibility to make a decision which goes to the very heart of parenting - deciding who and how often a non-parent may visit with a parent's child.

Some Representatives with whom I have spoken said this law prevents vindictive parents from keeping loving grandparents away from their grandchildren. However, the same law provides vindictive, controlling grandparents a means to have access to the children against the wishes of loving parents. The present law allows those grandparents, who meet the criteria, to have access to the children against the parents wishes, and parents are forced to comply or face contempt of court. On the other hand, using the same criteria for the best interest of the child, the parent is powerless to force a grandparent to associate with the grandchildren if the grandparent refuses. Grandparents have been given a right if they want to exercise it; if grandparents do not want to exercise this right, they cannot be compelled. Parents have a responsibility which they cannot exercise without the parenting right that makes it possible. Grandparents, on the other hand, have been given a statutory right with no responsibility attached.

Is the right of grandparents to see their grandchildren when they so desire a compelling State interest? Just what state interest is advanced with this law? The best interest of the child is compelling in cases of divorce, where the custody of the child is in question and the presiding judge has to decide which parent will most benefit the child. However, in non-parent visitation, there is no sound evidence to support the contention that grandparent visitation is in the best interest of the child, especially when visitation is against the wishes of fit parents, and in most cases, against the wishes of the children.

Reputable sociological studies, in fact, dispute those sentimental claims make by grandparent activists. Much empirical and clinical research on children have been conducted and the results of this research have been incorporated into legislation affecting families. Why should we not expect equivalent comprehensive studies on the importance of grandparent-grandchild relationships? One study that is often referred to by grandparent lobbyists, the authors A. Kornhaber and K. Woodward reported the existence of a special bond between grandparents and grandchildren which is stronger than any other, except that between parent and child. However, these sweeping conclusions had several methodological weaknesses, and other researchers have not been able to replicate the results. The sociologists, Andrew J. Cherlin and Frank F. Furstenberg, Jr. conducted an extensive study entitled, The New American Grandparent: A Place in the Family, a life apart. The Authors state, "Kornhaber's critique, though well intentioned and not without basis, is strong on rhetoric but weak on the facts." p. 191 Other psychologists, Barbara Tinsley and Ross Parke, made an admirable attempt to convince their colleagues to pay attention to the influence of grandparents on children. They cite well over 100 articles about family and kinship, almost none of which has any information about the difference grandparents actually make. As a result, they are left to conclude only that grandparents "have the potential for significantly influencing the developing child," without demonstrating whether that potential is ever translated into reality." p. 167

Cherlin and Furstenberg state, "To be credible, the critique of contemporary grandparenthood must best stripped of its nostalgic, romanticized view of the past."p.49 Their comprehensive study which lasted several years reveals the following:

"Only 1 percent of all grandparents, however, agree that either of the child's parents did not want the grandparent to see the child more often." p. 179

"There is very little evidence that grandparent's values influence the values of their grandchildren." p. 179

"Higher involvement by grandparents did not affect the child's social or psychological adjustment positively." p. 180

"We expected that the grandchildren of more involved grandparents would have fewer behavioral and psychological problems. If anything, the opposite is true. According to several of the measures, the grandchildren of less involved grandparents experienced fewer adjustment problems, though most of the differences were not large enough to reach statistical significance." p.181

"We examined disrupted and non-disrupted families separately,... .Regardless of the family circumstances, higher levels of participation by grandparents have little affect on the child's overall adjustments." p. 181

"Only rarely do children consider grandparents to be primary support figures." .181

"Few children regarded their grandparents as parent-like figures, and most do not include them when they are asked to list the people who make up their family." p. 182

And finally-"The extent of grandparents' influence on their grandchildren's values is mediated through the middle generation. Generation one influences generation two, which in turn influences generation three. Grandparents pass on a legacy of values to their grandchildren if and only if they are successful in transmitting their values to their children. If this process of intergenerational transmission is interrupted, then grandparents will generally not exert any independent influence over their grandchildren's views." p. 178

Senior Citizens organizations appear to confirm the findings of Kornhaber and Woodward. The Foundation for Grandparenting a national grandparent organization, reported, "In the past few years we have received many hundreds of letters from parents requesting suggestions about ways to help the children and their own parents have a close and meaningful relationship." The prevailing literature appears to contradict the view that parents' refusal to allow grandparent contact with their children is a problem which requires state intervention. If the state is truly interested in fostering grandparent-grandchild relationships, there are more constructive ways to accomplish this objective than court intervention. Using the police power of the state to allow grandparents to force themselves into their children's families defeats its intended purpose. Suing ones children for access to ones grandchildren only creates hostility between grandparents, their children, and the extended family, creating conditions that are hardly conducive to "the best interest of the child." It appears evident from existing literature, and the experience from families who have suffered from this law, that the legislature can advance the best interest of the child by creating a mechanism to resolve conflict between grandparents and their children, rather than sanctioning laws which only foster hostility between parents and the extended family.

The Indiana Grandparent Visitation Law does not give any guidelines to determine what is in the best interest of the child. This difficult determination is left to the discretion of the presiding judge. Without guidance from the statute, the court embraces the notion that grandparent visitation with the grandchild is beneficial. And most importantly, the child who is supposed to benefit from this law, often suffers the most as a result of this poorly defined law.

I ask you in all sincerity, do any of you know what is in the "best interest of a child" other than a child living in a non-abusive home with loving parents who takes care of the child's physical and emotional needs? Can we rationally give authority to the presiding judge this awesome power of deciding a child's best interest in a non-parent visitation when there is little if any evidence that visitation is in the child's best interest, and when much of the research contradicts the assumptions on which the present grandparent visitation is based. This arbitrary law has resulted from decisions which are neither based upon sound sociological data nor empirical evidence. Such a law does not accomplish its objective, and in the end, destroys the very thing it is suppose to remedy.

What actions can the legislature take which will insure the presiding judge will render a decision that will do justice to the best interest of the child, yet assure parents that their parental rights will be respected? The statute must instruct the trial court to conduct a hearing, based on compelling evidence, to determine whether parental decisions are harming the child's health, safety, or welfare. Only after assessing the facts and evaluating the evidence should a judge proceed to "the best interest of the child" analysis. A review of past grandparent visitation cases shows that grandparent visitation is indistinguishable from that of a non-custodial parent. Clearly, there is a difference, both in constitutional rights and responsibility. The common law concept that the state is the ultimate parent of every child- parens patriae- is one of the only limitations on parental autonomy. To protect parental autonomy, The Supreme Court has developed a threshold test for imposition of the state's parens patriae . Generally, the state cannot interfere with the parents' right to raise a child in a particular manner unless the parents' practice endangers the child. The Supreme Court, in Wisconsin v. Yoder, established the "harm" to the child test to determine if a state has authority to invoke the doctrine of parens patriae. Without this threshold of "harm" to the child, the presiding judge is free to interject his opinion of what constitutes the best interest of the child over that of parents whose fitness is unchallenged.

I urge you to consider the following: why would we grandparents want to deprive our children of the same fundamental right to parenting that we enjoyed when we were rearing our own children? This is not the legacy I want to leave my children-to know that I was responsible of depriving my children of the same right that I exercised so freely. Unless the state can show that parental decisions are endangering the well being of the child, the state has no business intruding into the lives of these families.

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