Over the river and through the woods

Alaska Supreme Court revisits grandparent visitation rights

This issue of the Senior Voice will be coming out at the beginning of the holiday season. For many of us, that means enjoying time with grandchildren.

I don’t know who first said that “grandchildren are God’s reward for not killing your teenagers,” but I can certainly relate to that. And with apologies to those readers who don’t have grandkids, they certainly bring life and meaning at this time of year.

One of the nice things about grandchildren is that we don’t have to take care of them all of the time. For most of us, if we want to see our grandchildren, we just have to pick up the phone and ask.

Unfortunately, that is not the case for everyone.

Occasionally grandparents are denied contact. It may happen for any number of reasons. There may be religious or philosophical differences between the grandparents and their child. The parent may be bitter or resentful about things that happened when they were young. There may be a son- or daughter-in-law who dislikes the grandparents, or is isolating the family from extended family. And of course on occasion, there may be good reasons for denial, such as when the grandparents are abusive or undermine the parents.

Sometimes the grandparents seek visitation orders from the courts. It doesn’t happen every day, but it happens often enough that back in 1995 the Alaska legislature passed a statute to cover that situation. AS 25.20.065 sets the standards for grandparent visitation. A judge can order the visitation if the grandparent has established, or at least attempted to establish, ongoing personal contact with the child; and if visitation by the grandparent is in the child’s best interest. That is a pretty broad standard, and it definitely appears to put a grandparent in a good position if he or she wants to petition for a visitation order.

But not so fast: Just five years after Alaska enacted this statute, the U.S. Supreme Court decided a case involving a similar statute from the state of Washington. The case is called Troxel v. Granville, and it involved a situation in which the grandparents’ son had died, and the daughter-in-law (that is, the surviving parent of the grandchildren), while agreeable to some visitation, wasn’t giving the grandparents as much as they wanted. The Supreme Court held that because the right of a parent to raise their child is a “fundamental right”, the states could not simply order a parent to allow grandparent visitation based on a “best interest of the child” standard. Custody and visitation cases between the parents are decided based on the child’s best interest, but the Supreme Court said that a higher standard is necessary when it is a non-parent who is petitioning for visitation.

The U.S. Supreme Court did not say, however, exactly what the standard should be; they just reversed that specific case on the grounds that the Washington statute did not give enough weight to parental preference. That left it to the states to figure out what they could or could not do.

In Alaska, the legislature did not step in and rewrite the statute, so it fell to the Alaska Supreme Court to interpret the statute so as to meet the constitutional standard.

When the question of grandparent visitation found its way up to the Alaska Supreme Court, the justices looked at their previous cases, and decided that a grandparent should have to meet the same standard as any other third-party. They had decided third-party visitation cases before, such as when a divorcing stepparent seeks visitation with their stepchildren, and decided that the standard they had developed in those cases, was appropriate in the grandparent cases as well.

So here is the law, for a grandparent seeking visitation over the objections of the parents. There are exceptions, of course, but these are the basic rules. The grandparent still has to meet the statutory requirements of having established, or attempted to establish, ongoing personal contact with the child, and still must show that visitation is in the child’s best interest. But then the grandparent must also prove, by the heightened standard of “clear and convincing evidence”, that it would be detrimental to the child to not order the visitation.

To people who have not dealt with these kinds of cases, it might seem that it would not be that hard to prove that lack of visitation would be detrimental to the child. In reality, it is a very difficult standard to meet. I used to handle family law cases, and I pursued several grandparent visitation cases. They are almost never successful.

So, if you are considering pursuing this kind of lawsuit, let me give you two pieces of advice. First, do everything you possibly can to work it out and avoid litigation. It may mean having to compromise and do things you don’t want to do, or getting a lot less contact than you would like, and it may be unfair, but it may also be the best option.

And if you do decide to go forward, hire a really good family law attorney. But not me. I don’t do that anymore.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Merry Christmas.