Frank

Grandparents should have their day, but should they have rights on their day in court?

It came and it went. Did you call your grandparents? Did you encourage the children in your life to call theirs?

Grandparents Day (September 9 this year) is a yearly revitalization of the extended family because grandparents are the umbrella the extended family sits below. They offer inspiration, guidance and a sense of tradition to their children and grandchildren. The value of these contributions are immeasurable to a family's success and by securing the success of the family, grandparents ensure the success of society; grandparents shelter the extended family, which some have argued is society's keystone.

We've all heard "the extended family is the key stone" argument. It goes like this: the extended family is practically non-existent in modern America, crumbling the foundation of society and undermining it. And from what I can see, more than a modicum of truth exists in this logic. Successful families make up the foundation of a successful society.

Besides acting as protectorates of the keystone, grandparents also contribute to a family's success by taking care of children. This is definitely true in my life. The grandparents take care of my son, so I can go to school, my wife can go to work and we can get hundreds of errands done. This allows my wife and me to be more successful, making my family more successful.

But when it comes to rights, where should the line be drawn in regard to grandparents? In recent history this line has been more like a pendulum.

Since the industrial revolution, the nuclear family has become increasingly isolated from the extended family. Historians contribute this to the fact that a modern society demands more mobility from the family and the smaller, nuclear family is more mobile than the extended family. The influence and help that grandparents could offer to the nuclear family became less over time and laws did not reflect or protect the growing group of grandparents disenfranchised from their grandchildren.

Swing low, the pendulum of time
In 1965, this trend reached an apparent boiling point as divorce rates, out-of-wedlock births and drug abuse increased. State's began to pass laws recognizing what would become known as grandparent's rights. Grandparents' right to sue for visitation or custody of a grandchild continued to expand until all 50 states had legal precedence acknowledging a grandparent's legal standing to invoke this right.

Unfortunately, many of the states went too far and allowed the right to sue for visitation to be expanded to the point where practically anyone, non-relatives alike, could sue for visitation if they could show it was in the best interest of the child. This was the case in Washington until 2000.

In 2000, the pendulum swung the other way drastically as the U.S. Supreme Court ruled it unconstitutional that Washington law allowed non-relatives to sue for visitation. The Supreme Court ruled that exceptional circumstances should exist before a parent's right to choose with whom their child associates could be deferred to the court. This prompted a state supreme court review of the laws in 23 states with another third of all the states reviving their statutes and at least five deeming their laws unconstitutional.

Now swing high, pendulum of time
Michigan deemed their grandparent visitation rights unconstitutional, so they rewrote them. But instead of narrowing them, they kept them seemingly broad. Their law say that grandparents can request a hearing any time they have been refused visitation under the following circumstances: divorce, separation, annulment, child born out-of-wedlock, legal custody of the child has been given to someone other than the parent of the child (except adoption) or when "a grandparent has taken care of a grandchild during the year before they request visitation."

According to the Children's Defense Fund, one out of every two children will live in a single parent family at some point in childhood and one in four live with only one parent at any given time. One in three is born to unmarried parents, one in nine is born to a teenage mother and one in 35 live with neither parent, such as a grandparent. Add this "one out of two" with a "one out of three" and a "one out of four" and then combine that with the immeasurably broad reaching numbers contained in the statement, "a grandparent [who]has taken care of a grandchild during the year before they request visitation" and you tell me how many children you think fall under these circumstances? I really want to know because these numbers are obviously impossible to tally, but from where I'm sitting, they are somewhere between a majority and a large majority and that seems exceptionally broad.

Jeff Atkinson, adjunct professor, DePaul University College of Law and author of "The American Bar Association Guide to Marriage, Divorce & Families" would agree that the Michigan law is broad and perhaps even unconstitutional except for a subsection within it that states it must be proved "by a preponderance of the evidence that the parent's decision to deny grand parenting time creates a substantial risk of harm to the child's mental, physical, or emotional health."

"This saved it from being unconstitutional," Atkinson says. "The need for a substantial risk to child is consistent with the Supreme Court's decision that there must be exceptional circumstances."

Whether or not there is a risk of harm to a child's mental, physical, or emotional health will ultimately decide whether grandparents have the right to sue for visitation. Since a majority of the cases will most likely not involve a mental or physical need for the grandparents to have visitation, then the operative term for grandparents will be "emotional health."

Emotions remain an elusive topic in psychology. According to AlleyDog.com, an extensive glossary of psychological terms, more than 90 definitions of emotion exist in the scientific literature. Their definition goes on to say that "...emotion is one of the most difficult concepts in psychology to define."

It will be interesting to see how this ambiguity will fair for the cases of grandparents. It seems difficult to imagine that such an ill-defined term could offer the required "preponderance of evidence." If the courts do not have a system in place to accurately asses the risk of harm to a child's emotional health, then this could be a loop hole that effectively expands grandparents' rights back to the place they were at before the Supreme Court declared them unconstitutional.