Grandparent Rights Visitation - A Review

was not of the essence and the child himself was unwilling.184 Similarly, the harm standard will not be met and parental decisionmaking will not be countermanded if death will occur in a short time anyway or if the treatment at issue entails a substantial risk of harmful side effects.185 In Newmark v. Williams, the court refused to order cancer treatments for a three-year-old child over the objections of his parents.186 Medical testimony established that the proposed treatments had only a forty percent chance of “curing” the child and would, in fact, bring him “near death” each time they were administered.187 Furthermore, medical testimony offered no guarantees regarding either relapses or lasting harm to the child’s system if a cure were effected.188 In Newmark, as in cases where more than one viable treatment existed, the question is not which treatment is essential. Under these circumstances the harm standard has not been satisfied so the state cannot override the parental decision. Child abuse and neglect cases result in the same clear definition of harm by holding that the state cannot intrude on family life to promote what it considers a “better” option for children when the children’s basic well-being is not threatened. In In re Geiger, for example, the trial court terminated the parental rights of an impoverished and mildly retarded mother of three, citing the “sub marginal” condition of the home and the absence of “cultural enrichment.”189 Reversing the trial court, the state Supreme Court freely acknowledged the limitations inherent in a situation in which the family’s “meager income” came solely from a junkyard business next to the home.190 It noted, however, that undisputed evidence established that the children were “not undernourished . . . receive[d] ample food . . . [had] minimal clothing and [were] in generally good health.”191 Citing this decision in a subsequent review of abuse and neglect cases, the court affirmed the essential principle that interference with a child’s ongoing family relationship is permissible “only upon a clear showing of necessity.”192 Perceived improvements to an adequate situation, even a minimally adequate situation, will not satisfy the harm standard.193 Similarly, where a child is removed from a parent’s custody, the harm standard cannot be satisfied by conditions that run contrary to official preferences, but don’t have a direct impact on the child’s welfare. In the case of In re Constance G., for example, the court reversed a termination of parental rights order that rested on the father’s refusal to comply with child welfare agency conditions, including an anger management program and an alcohol abuse program.194 Reviewing the evidence the court noted that although the father had exhibited violence towards former girlfriends, he had apparently never directed any violence against children or against retarded adults who had been in his care.195 With regard to the alcoholcounseling requirement, state officials testified that it was intended “to help [the father] resolve some of the issues he had with his own father.”196 Noting that the father’s lone D.U.I. conviction did not appear to correspond to a substance abuse problem, the court characterized his lack of compliance as immaterial, commenting dryly that a requirement of alcohol counseling was “somewhat draconian” absent evidence of an alcohol problem.”197 In short, a child is not subject to harm from an imperfect parent unless such imperfections directly impact childrearing. Not only is a determination of harm different from a determination of what is “better” or “best,” it can only be established by conduct that directly impinges on the child’s welfare. Finally, the harm standard cannot be satisfied by circumstances that are susceptible to differing interpretations. In In re Kristina L., the child at issue had trouble retaining food and gaining weight as an infant.198 Over the course of several weeks, her mother took her to various clinics and eventually to the hospital where she was admitted.199 At the end of a twoweek stay, the infant had gained weight and the hospital informed the mother that the child would be placed in foster care instead of being returned to her.200 After almost five years of foster care, including the all- too familiar round of agency-arranged visits, classes and evaluations for the mother, the agency successfully moved for a termination of the mother’s parental rights.201 The state supreme court reversed the trial court.202 It noted that the child’s initial hospitalization for failure to thrive - which formed a cornerstone of the state’s case - was subject to two diametrically opposing interpretations, and therefore the court could not support termination of parental rights.203 The court noted that far from endangering her child at that point in time, the mother’s conduct in taking the child to the hospital could have actually been viewed as the most responsible course to take.204 Since the conduct in question was susceptible to differing interpretations, the court could not support a determination that the child would be harmed.205 No such “differing interpretations” existed in In re Barbara P. 206 In re Barbara P., thus, illustrates the difference between a best interest analysis, which may involve several acceptable alternatives, and a harm analysis where the “consequences, in harm to the children, of allowing the parent-child relationship to continue are more severe than the consequences of termination.”207 In In re Barbara P. three siblings, aged five, six, and nine at the time of the decision, had each been left in foster care for all but a few months of their lives.208 Attempts to arrange visits with their parents were generally unsuccessful and “no meaningful contacts” were maintained by the parents while the children were kept in foster care.209 Although the parents argued that “the customs of bourgeois urban existence”210 had formed an insurmountable barrier, the court found this rather amorphous argument unconvincing and concluded that the neglect of the children to be so complete that it required termination of their rights.211 The Von Eiff court has thus defined a threat of harm as a situation requiring intervention and distinguished it from a situation where one weighs two acceptable alternatives. By emphasizing the connection between the harm standard required in order to justify state intrusion on family life in a grandparent visitation case and the harm required to justify state intrusion on any other area of family life the court both provides a familiar and workable definition of harm and highlights the logic of its definition. No one would argue that the state could freely override a fit parent’s responsible decision in a medical treatment case or remove children from adequate parents in order to give them “better” parents. The conclusion cannot, logically be any different where the state seeks to temporarily remove children from a fit parent – through court ordered grandparent visitation – to give them a “better” experience. IV. “THE FUNDAMENTAL RIGHT TO MAKE PARENTING DECISIONS:”212 THE REPERCUSSIONS OF VON EIFF A. FLORIDA LAW Within Florida’s borders, the most obvious effect of Von Eiff was that it streamlined resolution of similar cases. In Coryell v. Morris, for example, the child’s mother was murdered and the maternal grandparents obtained court ordered visitation.213 The court was not distracted by the dramatic circumstances and easily found the visitation order improper. Citing Von Eiff, the court observed that being widowed does not diminish a parent’s decisional rights, and a parent’s decision regarding grandparent visitation may not be countermanded except in service to a compelling state interest.214 No such interest existed in the case before it, and the visitation order must therefore be reversed.215 Relying thus on Von Eiff, the Florida courts made short work of grandparent visitation petitions based on the death of a natural parent.216 Von Eiff also provided the fuel for a subsequent decision that invalidated one of the few subsections of Florida’s grandparent visitation statute that had escaped constitutional challenge. In Lonon v. Ferrell, the paternal grandparents sought visitation after the child’s mother and father – their son – had divorced, the mother had remarried and the new husband had adopted the child.217 The lower court denied the grandparent’s petition, noting that they were legal strangers to the child.218 When the grandparents appealed, the court relied on the constitutional protections announced in Beagle v. Beagle to find that the grandparents’ original petition violated Mrs. Ferrell’s right to privacy and childrearing autonomy.219 It noted that the alleged “intact family” limitation in Beagle could claim no vitality at all after Von Eiff. 220 The court held that subsection (b) of Florida’s grandparent visitation statute, permitting court ordered grandparent visitation after parents divorced thus failed constitutional scrutiny,221 a holding other Florida courts were quick to follow.222 If Von Eiff was to be the decisive factor in all subsequent Florida grandparent visitation cases brought under section 752.01, it was also to prove decisive in cases reaching well beyond the specific statute it had addressed. In Lonon v. Ferrell, for example, the grandparents – perhaps sensing that their “intact family” argument was doomed in postVon Eiff Florida – argued that section 752.07, protecting grandparent visitation awards after stepparent adoptions, protected their access to court ordered visitation.223 The court disagreed, noting, first, that the stepparent provision purported to protect visitation rights arising under section 752.01, and that no such rights existed in the case before it.224 Although this observation alone disposed of the matter, the court went on to comment that the stepparent provision did not appear to be valid at all in the wake of Von Eiff. 225 Von Eiff had characterized a family consisting of a child, her biological parent and the parent’s new spouse as “a new family” with the same rights that would have existed had the relationship arisen from blood rather than marriage,226 thus, erasing any distinction the statute purported to make. Moreover, the court observed, the stepparent adoption provision permitted intrusion upon that “new family” using a best interests standard, something Von Eiff plainly did not permit.227 Von Eiff’s focus on the constitutional dimension of the parent/child relationship was also key to the Florida Supreme Court’s subsequent invalidation of a custody statute and recognition of a common law cause of action for interference with parental custody, both cases far removed from the basic grandparent visitation statute Von Eiff had been called upon to address. In Richardson v. Richardson the parents were divorced, primary physical custody of the child was given to the mother and the child lived with her paternal grandparents for four or five days per week.228 When the mother violated the marital settlement agreement by taking the child out of state, the grandparents sought custody under section 61.13 (7) of Florida’s statutes, a provision that authorized a custody award to a grandparent, rather than a parent, when the child had “actually resid[ed]” with the grandparent.229 By placing the grandparent on an equal footing with the parent, the statute cleared the way for a best interest analysis. The lower court rejected the grandparents’ bid for custody as insupportable, reasoning that section 61.13(7) embodied the same fatal constitutional flaws as the grandparent visitation statute at issue in Von Eiff and in Beagle. 230 The Florida Supreme Court agreed.231 It was immaterial, the court held, that Von Eiff focused on an entirely different statute.232 Von Eiff’s explanation of the parent’s overarching right to privacy in matters of childrearing should not be so limited.233 The court reiterated that the state could not “interfere [ ] with the natural parent’s fundamental right to privacy” in matters of childrearing absent a finding of harm to the child whereas section 61.13(7) included no such threshold requirement.234 In an even more dramatic show of muscle, Von Eiff provided the foundation for the court’s recognition of a common law cause of action for interference with parental custody, despite older precedent to the contrary. In Stone v. Wall, a widowed father and his minor daughter sued the child’s maternal grandmother and aunt for interference with the custodial parentchild relationship.235 The father alleged that the grandmother, aunt, and their attorney concealed the child from him, refused to respond to his inquiries about her and executed a guardianship/entrustment agreement without his knowledge or consent.236 The federal district court dismissed his action as failing to state a claim upon which relief could be granted; the Eleventh Circuit reversed, but certified the question of whether a cognizable cause of action existed to the Florida Supreme Court.237 The existing legal landscape did not seem particularly conducive to recognition of a new tort. A ten-year-old Florida Court of Appeals decision had rejected a father’s civil suit for money damages under the authority of Florida’s criminal prohibition against “interference with custody.”238 Florida had long ago abolished civil actions for alienation of affection,239 and twenty-five years earlier the Eleventh Circuit court relied on this point to dismiss a father’s action for tort damages based on the “surreptitious removal” of his son from Florida by the child’s mother and grandmother.240 Finally at common law the tort focused on a parent’s loss of an heir and so appeared time bound and inapplicable.241 The court began by observing that the common law must keep pace with changes in society and that a contemporary version of the tort in question rested on the sanctity of the parent-child relationship rather than on outmoded notions of a father’s property interest in his heir.242 The court then unleashed Von Eiff on the analysis. Von Eiff held that the parent-child relationship is of fundamental constitutional significance,243 an exalted status most other relationships could not claim under Florida law, despite the extensive protection tort law afforded them.244 In light of Von Eiff, therefore, one could arguably conclude that all causes of action, vindicating relational interests whether business or personal, unavoidably supported recognition of a cause of action for interference with a custodial parentchild relationship. Any comment on the Florida legislature’s response to Von Eiff and Beagle is necessarily a work in progress, for that response, although direct245 has been, thus far, resoundingly incomplete. In response to Beagle, the legislature deleted the former section 752.01(1)(e), which had originally permitted court ordered grandparent visitation when the child lived with both of his or her married, natural parents.246 In response to Von Eiff the legislature deleted the former section 752.01(1)(a), which had originally permitted court ordered grandparent visitation when a child’s parents were deceased.247 This much the most casual observer of Florida law would surely have expected. The legislature did not, however, modify the beginning of the grandparent visitation statute with its now impermissible statement that a court shall “award . . . visitation to the grandparent with respect to the child when it is in the best interest of the minor child . . . .”248 B. BEYOND FLORIDA Von Eiff’s influence quickly reached beyond Florida in several important decisions that focus on the precise parental right at stake and, therefore, on the proper and acceptable scope of the statutory grandparent visitation right conferred. In most of these decisions Von Eiff is cited for the proposition that the death of one parent does not diminish the surviving parent’s right to childrearing autonomy.249 This seemingly obvious point has played a key role in subsequent decisions. Obviously it reinforces the individual parent’s right. It also works in tandem with the United States Supreme Court’s criticism of grandparent visitation statutes in Troxel v. Granville. 250 In a vacuum, Troxel, might seem of limited precedential value since the grandparent visitation statute it reviewed was an anomaly in grandparent visitation law,251 simply allowing any person to seek visitation with a child at anytime. Indeed, the first of the three factors on which the decision rests is the “sweeping breadth”252 of the grandparent visitation statute, a breadth so extensive that it allowed virtually any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state court review.253 Second, it seems that the statute does not incorporate any allegations of parental unfitness.254 Third, it overrides the parent’s own visitation plan.255 Most grandparent visitation statutes are much more limited in scope, typically authorizing court intervention only upon petition of a grandparent256 and typically only when the child’s nuclear family has already suffered disruption of some sort.257 This obvious difference has not been lost on plaintiff grandparents in the post-Troxel world. But if, as Von Eiff asserts, a parent’s right to childrearing autonomy is undiminished by the death of the other parent, then this distinction between a broad statute and a narrow one becomes irrelevant, and Troxel’s reach perceptibly wider. In Punsley v. Ho258 and Kyle O. v. Donald R., 259 for example, two different California appellate courts address factual circumstances analogous to Von Eiff in the wake of Troxel. In both cases widowed parents were willing to allow visitation between their children and the grandparents who were parents of the deceased spouse.260 In both cases the grandparents found the preferred visitation unacceptable, and filed suit.261 Both sets of grandparents relied on statutory visitation rights, which authorized court ordered grandparent visitation only when “either parent of an unemancipated minor child is deceased.”262 Both appellate courts rejected the grandparents’ arguments; Von Eiff was the linchpin in each decision.263 In the first of these two decisions, Kyle O., the court asserted that it would follow Troxel’s lead,264 and proceeded to review the constitutionality of the grandparent visitation statute as applied.265 It easily found two of the Troxel factors satisfied. First, it noted, that the record contained no finding that the father was unfit; indeed testimony was quite to the contrary.266 Second, it noted that the father was willing to give the grandparents visitation with his daughter, and had agreed that visitation not infringing on his parenting time was appropriate.267 Although the court had expressly noted that the Troxel opinion rested on these factors “in combination”268 with the nature of the broad Washington statute, the court was able to find the differences between that statute and the one before it insignificant. Citing Von Eiff, the court noted that the death of a man’s wife did not diminish his “fundamental right to make parenting decisions concerning [ ] [his] child’s contact with grandparents.”269 Using Troxel and Von Eiff the court concluded that the statute was unconstitutional as applied because it infringed on the fundamental right of a fit father who had agreed to allow some visitation.270 The second opinion, Punsley v. Ho, 271 uses Von Eiff even more explicitly to address the legal significance of the statute before it in light of Troxel’s holding. In Punsley, too, the court notes that the mother was not only a fit parent but also a very good one,272 and had never attempted to cut off all visitations between her daughter and the grandparents.273 Two of the three Troxel factors were thus indisputably satisfied. The grandparents devoted considerable energy, however, to arguing that the California statute did not have the “breathtaking [ ]” breadth of the Washington statute in Troxel, did not subject a parent to the possibility of endless litigation that had troubled Troxel and was therefore constitutional.274 The Punsley court was not persuaded.275 The court first used Von Eiff to establish that the death of one parent does not diminish the parental rights of the surviving parent.276 The statute before it thus authorized an unmitigated intrusion on a parent’s fundamental right.277 The court found that this intrusion, not the details of any particular grandparent visitation statute “fueled the Troxel decision”278 – and necessarily controlled in the case before it. In effect, therefore, Von Eiff appears to have erased the distinction between a broad grandparent visitation statute and a narrow one, virtually transforming Troxel’s three factors into two. Two pre-Troxel decisions demonstrate that even courts unwilling to apply Von Eiff’s logic and hold the grandparent visitation statute under review unconstitutional as applied have been compelled to acknowledge that logic and take steps to distinguish it. In Gaffney v. Menrath, the parents were divorced and custody of their children was awarded to the father.279 When relations between the father and his own parents soured they successfully sought court ordered visitation.280 The father sought review of this grant of grandparent visitation, arguing that it violated his constitutional rights, was not in the best interests of the children, and violated public policy.281 The majority rejected his arguments, holding – with no citation to authority – that the fact of divorce involved the state in one’s personal affairs,282 and that the best interests of the children were adequately served.283 A nervous concurrence cited Von Eiff, however, and noted an “inherent” problem,284 on a public policy level, with basing the grandparent visitation statute’s grant of authority on the fact of death or divorce.285 After explaining the “downside” to allowing grandparents to exert an “interfering influence”286 on a newly blended family the concurrence was quick to note that no such scenario was presented here.287 The concurrence also noted that no “clear” constitutional challenge had been made.288 This assertion must have appeared to be, at best, a case of inexcusable inattention to the defendant father and, at worst an instance of the “lady doth protest too much” since the defendant had raised a constitutional challenge with sufficient clarity to prompt an explicit rejection from the majority.289 A second case, Graville v. Dodge, 290 further illustrates Von Eiff’s influence outside of Florida, even in the pre-Troxel world of grandparent visitation. In Graville, as in Von Eiff, maternal grandparents obtained court ordered visitation with their deceased daughter’s minor children.291 The father appealed, challenging the constitutionality of the grandparent visitation statute in light of its failure to use a harm standard – and cited, inter alia, Von Eiff. 292 The Arizona Court of Appeal nevertheless upheld the constitutionality of the statute.293 Although it acknowledged a right of parental autonomy, the court distinguished between “circumstances” in which a parent is deceased and those in which both parents are alive and the family is intact.294 Although it recognized that Von Eiff eliminated any constitutionally based distinction, based on familial status, the Arizona court inexplicably attributes its contrary conclusion to the difference between the specific language in the Arizona statute, as opposed to the language used in Florida and addressed by Von Eiff. 295 In a final, if unintentional, compliment to the influence of Von Eiff’s logic, the Arizona court acknowledges Von Eiff’s references to a state constitutional right to privacy.296 It declines to undertake an examination of the comparable provision in Arizona, however, concluding that the specific statutory language it had already discussed provided a satisfactory resolution.297 Apparently dissatisfieds extensive, if labored, defense of court ordered grandparent visitation in the face of a Von Eiff-type constitutional challenge, the United States Supreme Court responded to the father’s petition for certiorari by ordering remand for reconsideration in light of Troxel. 298 V. CONCLUSION Von Eiff may be a remarkable decision, by chance, because of the synergy between its holding and the United States Supreme Court’s decision in Troxel. Von Eiff is certainly a remarkable decision by design, however it takes on so many of the difficult issues of a typical grandparent visitation suit and addresses them with the unsentimental logic so often lost in the emotion of a grandparent visitation case. Several of Von Eiff’s predecessors demonstrate the wisdom of the aphorism that hard cases make bad law. It is heartening to note that, at least this once, bad law produced a very good case indeed.