With the passage and signing in April of a newly revised Georgia statute providing for grandparent visitation, all 50 states now attempt to provide some form of grandparent visitation with children of divorced parents.(1) Out of about two million marriages annually, about a million divorces will probably result. This fact, combined with the extended lives of an aging population, creates compelling demographic and emotional reasons for grandparents to assert rights to visitation.

Although statutes recognize grandparent visitation, serious constitutional issues and practical considerations stand in the way of the actual exercise of such visitation. The decision to pursue grandparent visitation needs to be carefully evaluated because, although they establish some rights, these laws provided few remedies.

Several states, such as Alaska, Arkansas, Colorado and now Georgia, give grandparents standing to seek visitation when one or both parents are deceased or when the parents are divorced or separated.(2) Some states, such as California, Hawaii, Illinois, Nevada and Wisconsin, provide relatives and unrelated third parties with standing to seek visitation in situations in which a parent is deceased, the parents are divorced or separated or a custody action is pending.(3) Grandparents and other third parties have been granted standing to pursue visitation when the child has resided with a grandparent or third party for a statutorily defined length of time, in such states as Minnesota, New Mexico, Pennsylvania and Wyoming.(4)

In the past, many states, whether by statute or by case law, adopted the standard of "best interests of the child" to determine whether, and to what extent, grandparent visitation should occur.(5) Such statutes, however, are unlikely to be held constitutional today.

Georgia's experience with its prior grandparent visitation statute is representative of what has happened in other states. In Brooks v. Parkenson,(6) the child's maternal grandmother sought visitation under Ga. Code. Ann. Sec. 19-7-3, the 1988 version of Georgia statute. Visitation, denied by the trial court, had been opposed by both of the child's parents.

Pursuant to Sec. 19-7-3(a), grandparents had "the right to seek visitation of a minor grandchild in three ways: by filing an original action for visitation rights, by intervening in certain existing actions, including those where the custody of a minor child is in issue, or by proceeding where there has been an adoption in which the adopted child has been adopted by the child's blood relative or a stepparent." Sec. 3(c) also provided grandparent visitation "upon proof of special circumstances which make such visitation rights necessary to the best interests of the child."

Constitutional Issues

On appeal, the Georgia Supreme Court considered whether the statute was constitutional. First, the court examined the interest that are protected by the federal Constitution. Then, the court looked at the extent to which a state may infringe upon an interest that is protected by the constitution. Last, the court had to determine if the state statute in question was within the permissible scope of infringement.

As a matter of well-established constitutional law, and whether married, separated or divorced parents have a constitutional right to privacy.(7) Inherent in which is the right to raise their children without undue interference by the state:(8) "The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State."(9) Therefore, the state can infringe only upon a showing of compelling circumstances: that the health or welfare of the child is threatened.

For example, laws preventing female children under the age of 18 from selling magazines (10) or limiting the availability of sex material to children have been held constitutional.(11) On the other hand, citing the due process and equal protection clauses of the 14th Amendment and the Ninth Amendment's right to privacy, the U.S. Supreme Court has declared unconstitutional laws that made the children of unwed fathers wards of the state upon the death of the mother.(12)

Most state constitutions have similar protections. Rather than a mere preponderance of evidence, clear and convincing evidence of harm to the child is needed to support removal from the parent. In other words, any infringement of the right of parental control or removal can be sustained "only under the most compelling circumstances."(13) State infringement of these parental rights and interests is permissible only when the police power of the state must be used to protect a child's health and welfare or when the parental conduct would result in harm to the child.(14)

In Brooks, the Georgia Supreme Court held that the 1988 statute fell short "both in its apparent attempt to provide for a child's welfare and in its failure to require a showing of harm before visitation can be ordered.(15) There is little empirical evidence that grandparent visitation promotes a grandchild's health and welfare. Even if such studies were available, grandparent visitation can be court-ordered only "over a parent's objections on a showing that failing to do so would be harmful to the child."(16)

Cases in which grandparents seek visitation with grandchildren who in an intact family - those in which both parents, who are alive, married to each other and living together oppose grandparent visitation - also raise argument of constitutional proportions. Because the state may not interfere unnecessarily with the right of parents to raise their children as they see fit, statutes authorizing visitation by a grandparent using only a "best interest" standard, or that try to grant such visitation over objections of parents in intact families, are not likely to pass constitutional muster.(17)

The New Georgia Statute

In response to Brooks, the Georgia Legislature enacted a new law, Ga. Code Ann. Sec. 19-7-1, et seq. Now grandparent visitation rights may be sought in Georgia only when at least one of the child's parents has died or the parents' rights have been terminated.(18) Grandparents who fit into these limited circumstances can bring an original action or intervene in and seek visitation when the custody of a minor child is at issue, Including cases in which there has been an adoption by the child's blood relative or by a stepparent.

Once past these hurdles, the grandparents must show, per Sec. 19-7- 1(c) and presumably by clear and convincing evidence, that "the health or welfare of the child would be harmed unless such visitation is granted and [that] the best interests of the child would be served by such findings of fact in support of its rulings. Taking helpful hints from its supreme court, the Georgia Legislature specified that there is no presumption in favor of grandparent visitation (19) and that the law does not apply"where the parents of the minor child are not separated and the child is living with both of the parents."(20) Regardless of the standards used in a jurisdiction, practical considerations influence the decision to pursue grandparent visitation. First, counsel must advise the client that, apart from popular reference to "grandparent visitation statutes", these laws are not intended or designed to provide emotional sustenance for the grandparent. The best interest of the grandparents are not the touchstone for application of these statutes.

It also is not enough to prove that grandparent visitation will enhance the child's emotional development. The grandparent must prove that, absent this visitation, the child will be harmed.

These considerations appear to militate heavily against granting grandparent visitation in most circumstance. Even if there is a possibility that visitation would be granted, the grandparent must consider whether the process of proving harm to the child in the absence of grandparent visitation will do more harm to the child than refraining from seeking visitation. As a practical matter, grandparents may find that offering financial contribution to the child's support, for instance, could be a better way to persuade the custodial parent to allow access to the children.

A protracted battle over grandparent visitation is unlikely to achieve the salutary benefits desired for the child. Accordingly, such litigation should be undertaken only when, absent such visitation, there can be a clear showing of harm to the child and when the likely benefit to the child can be clearly predicted to outweigh the emotional cost of the process.

(1) Tit. 19, Ch.7, Art. I Official Code of Georgia Annotated. Wee 3 McCahey, et al., Child Custody & Visitation Law and Practice, Sec. 16.12[3] n..38 (1982 & 1994 Supp.) (summary compilation of grandparent visitation statutes in all jurisdictions); Greene, "Grandparent Visitation Rights: Is the Tide Turning?" 12 Journal of American Academy of Matrimonial Lawyers 51, 51, 51 n.3 (citation to grandparent visitation statutes in all jurisdictions).

(2) Alaska Stat. Sec. 2.5.24.150 (1991); Ark. Stat. Ann. Sec. 9-13-103 (1993); Colo. Rev. Stat. Sec. 19-1-117. See Enos v. Correls, 38 Mass. App. Ct. 318, 320 n.7 (1995) (description and citation to various types of grandparent visitation statutes).

(3) Cal. Family Code Sec. 3102-3104 (Deering 1994 & Supp. ; Ill. Rev. Stat. Ch. 755, para. 5111-7.1 (1992); Nev. Rev. Stat. Sec. 125A.330-125A.340; Wis. Stat. Sec. 48.92;. Wis. Stat. Amn. Sec. 767.245 (West 1993); Wis. Stat. Sec. 880.155 (1981).

(4) Minn. Stat. Sec. 257.022 (1992 & Supp. 1993); N.M. Stat. Ann. Sec. 40-9-2 (1994); 23 Pa. Cons. Stat. Arm. Sec. 5311-5314 (Purdon 1991); Wyo. Stat. Sec. 20-7-101 (1994).

(5) 3 McCahey, supra n.1, Sec. 16.12(3).

(6) 265 Ga. 189 (1995).

(7) Prince v. Massachusetts, 321 U.S. 158,164 (1944).

(8) Meyer v. Nebraska, 282 U.S. 390, 399(1923). (Law prohibiting teaching of any language except Enghsh held unconstitutional, as violative of right to engage in the "common occupations of life." These rights include acquiring useful knowledge, marrying, having a home and bringing up children.)

(9) Santosky v. Kramer, 445 U.S. 745, 753 (1982).

(10) Prince v. Massachusetts, 321 U.S. at 166.

(11) Ginsberg v. New York, 390 U.S. 629 (1982).

(12) Stanley v. Illinois, 406 U.S. 645, 651-652 (1972).

(13) In re: Suggs, 249 Ga. 365, 367 (1982).

(14) Hawk v. Hawk, 855 S.W. 2d 573, 580 (Tenn. 1993).

(15) Brooks, 265 Ga. 189,194 (1995).

(16) Id. at 194.

(17) Id- Sec, generally, Greene, supra n. 1, at 70-72.

(18) Ga. Code Ann., See. 19-7-1 (a).

(19) Ga. Code Ann., See. 197-7-1 (c).

(20) Ga. Code Ann., Sec. 19-7- I (a).

Mr. Nissenbaum is the immediate past president of the American Academy of Matrimonial Lawyers. He is a principle in Boston's Nissenbaum Law Offices. Mr. Maloney is a sole practitioner in Boston. Both practice family law in Massachusetts.