Here Today and Gone Tomorrow? Grandparents’ Rights?


By Dawn Izon


I  know there has been much lamenting over the years about how people miss the simpler times; and the truth is that there were simpler times when we did not have to face the kinds of shocking realities that face many people in our ever-changing society.  As a child growing up in New York, I was surrounded by a large extended family who gathered on a weekly basis for no other purpose than to enjoy each other’s company.  In the neighborhood we lived in, this was the normal way of life. Families lived next door to one another, down the block or around the corner.  My parents lived one block over from my grandparents, aunts and uncles on the same block, cousins in walking distance.  Generations gathered for Sunday dinner, block parties, dance recitals, school plays, and barbeques.  Family relationships took precedent over other friendships; daycare centers were unnecessary as there were always aunts, uncles, cousins, grandparents willing to give a helping hand.  This was what I knew and the very model with which I set forth into adulthood imagining my life would be.  I actually envisioned myself advancing in years surrounded by my children, grandchildren and if nature was kind enough, great grandchildren. 


I can close my eyes and still see the picture I carried in my head and heart for most of my life. But in the year 2010 my only daughter Christina drowned in Lake Hartwell, South Carolina leaving behind my only grandchild Brianna, then 22 months old.  At the time of her death Christina was divorced from Brianna’s father who lives in Charlotte.  Although Brianna had lived with me since her birth, by law the father has the right to custody and the legal definition of any live parent and child is called an Intact Family.  By legal definition, although father and daughter had never lived together at any time, once my daughter died, they became an Intact Family.  The reason I emphasize this is because, by legal definition, an Intact Family may not be challenged for custody or visitation without cause of neglect, unfitness or abandonment by that surviving parent.  What that means in layman’s terms is that on the day my daughter died I lost any rights to be able to see my grandchild, hold her, love her, watch her grow, share her achievements and joys and keep alive for her the memory of her mother and her mother’s roots.


As a society we muddle along with the general concept of “rights,” confusing what our heart tells us is a moral right and what the Law defines as a “right.”  How many times have you heard someone express that they have a right to privacy! There is no constitutional right to privacy—what we have is an expectation of privacy. By the same token, we have an expectation of rights and I can tell you this: I am a grandparent and what you need to know is that in this country there is no such thing as Grandparents Rights.  It is an assumption based on ideals that do not exist in our legal miasma.  The basis for this state of affairs originated in a June 5, 2000 Superior Court ruling on a much touted court case called Troxel v. Granville.  You can certainly read this ruling on the internet for yourself, but the summary of the decision is that our Chief Justices ruled that parents have a constitutionally protected right to possession of their children and to make all decisions concerning their children, even to the extent of banning family members from having any contact whatsoever.  It ruled that government does not have the right to dictate parenting matters and should not have the right to make decisions for the parent concerning the upbringing of their offspring. This idea is based on the assumption that parents will always act in the best interest of their child. Ironic is it not; since the government makes decisions for your children day in and day out.  From birth the government numbers your child by insisting you immediately file for a social security card, it then regulates what inoculations your child will receive and when your child will enter a government-sponsored educational system and it decides what your child will be taught and when.  The educational system is designed in such a way that regular reprinting of text books changes our history according to the political atmosphere of the minute. 


Government agencies regulate what constitutes suitable nutrition, what you may or may not have a right to know about the foods you provide for your children.  Remember when there were no laws concerning car seats?  I understand that this is a safety measure, but again the assumption is that government has a greater interest in the safety of our children than we do—therefore it regulates your actions as a parent. This list of hypocritical actions could go on forever, but I believe you get the point.


You go to sleep one night enjoying the restful slumber of a life on track and in order, only to wake up the following morning to discover that a cruel twist of fate has turned your world upside down.  What can a person do to insure that they are never brutally removed from the lives of their grandchildren?  There are steps you can take now to insure that down the road you are not faced with a nightmare that could cost you tens of thousands of dollars and a heartbreak that no amount of money can repair (trust me on this one).


#1- When you are faced with the wonderful expectation of the arrival of a grandchild, sit down with your children and discuss with them putting together a parenting plan which would include an agreement for visitation. This may seem awkward, but the alternative is worse.  Get it in writing and get it notarized!  The presentation of a document like this one can be softened by perhaps setting up a trust fund for the grandbaby at the same time.


#2-  If it comes down to a divorce or separation of the parents of the grandbaby, it is essential that you move quickly to get your visitation arrangements on paper and incorporated as part of the divorce agreement.  This will protect you in the future should relationships breakdown or there is a death of one of the parents.


#3- The law allows any interested third party to petition for custody of a child at any time under the circumstances of neglect, endangerment, abandonment, cruelty or when a parent has acted in a manner as to abdicate their protected rights as a parent.  The courts will hear a case based on the above, but be prepared to have a huge burden of proof and very, very deep pockets.  A good family attorney averages about $250.00 per hour plus expenses.  Most custody matters require a retainer of $3500.00 + and believe me, that disappears in the blink of an eye.  This process is ugly and nobody comes out the winner.


Changes are coming, but it is a slow and tedious process.  Many groups have lobbied for protection of grandparents’ ability to maintain their connections to their grandchild when families break down.  There are new laws being proposed; one recently introduced in Georgia has revised the Parenting Plan to include a schedule for grandparent visitation. All states require parents to submit a Parenting Plan through mediation in order to file for divorce.  This is a fair accommodation to grandparents and one I am hoping to see all states support it.  But until that day it is your job to be informed and proactive in assuring you remain a constant and vital force in your grandchildren’s lives.  Do not allow yourself to be blind-sided like I was, thinking this could never happen to you. I could not possibly put into words the tears I have shed, the grief of losing both a daughter and granddaughter at the same time, the emotional roller coaster I ride everyday being at the mercy of the legal system.  This fight to stay a part of Brianna’s life consumes my every day and every night.  It has taken over every part of my life and colored everything I touch.  It has alienated me from friends and family who distance themselves from the mire.  Brianna’s grandfather has even elected to remove himself from any involvement, giving up any connection to his dead daughter rather than to enter the legal fight.  It is ugly and nobody wants to walk this path with me and quite frankly, I sincerely would not wish this on my worst enemy.  Being knowledgeable and prepared is the only way to insure that you never find yourself in this position.  Have an open and honest discussion with your children today and GET IT IN WRITING!


References- Troxel v. Granville 530 US 57120S
NC House Bill 509
Ga House Bill 1198

Sandi Tomlin-Sutker
Written by Sandi Tomlin-Sutker