State laws that let grandparents get visitation rights in divorce cases don’t allow them to actually enforce a key provision, the state court of appeals ruled Tuesday.
In a unanimous decision, the judges said grandparents can’t keep a custodial parent from moving out of state and taking the child with him or her. That ability to prevent a move, they said, is limited solely to the other parent.
Stanley Murray, an attorney who specializes in these grandparents visitation rights cases, said the ruling effectively undermines the whole 1983 law which first gave grandparents the right to see their grandchildren even after a divorce.
Murray said he expects to ask the state Supreme Court to review the decision. But he conceded it may take legislative action to guarantee that grandparents can demand the rights lawmakers first granted them 24 years ago.
That law came at the behest of grandparents who complained that a parent who got custody of a child after a divorce would deny access to the former partner’s parents. They argued that children were being unfairly denied access to extended family just because the parents went through a messy or acrimonious divorce.
The law spells out that courts can grant grandparents their own visitation rights if a judge determines it is “in the best interests of the child.” Courts are required to consider various factors, ranging from the historical relationship between the grandparent and the child to the reasons the custodial parent is denying visitation.
This case involves Kiley Sheehan who was awarded sole custody of a child following her divorce. The original decree granted the child’s father four hours of parenting time every other week, supervised by Lou Ann Flower, his mother.
Flower subsequently sought her own visitation time, which a trial judge awarded over the mother’s objections.
Two years ago, though, Sheehan said she would be going to Indiana to care for an ailing relative. Flower asked a Maricopa County Superior Court judge to prevent the move, saying the sole purpose of Sheehan’s actions was to prevent visitation.
By the time the judge held a hearing, Sheehan had permanently moved to Indiana.
Murray, representing the grandmother, pointed out that divorce laws spell out that a custodial parent who wants to relocate has to give notice. More to the point, it permits a judge to forbid relocation, using the test of the child’s best interests.
But appellate Judge Patricia Norris pointed out that statute refers only to “parents.”
That, Norris said, means grandparents have no such rights.
Murray said Tuesday’s ruling could make the 1983 law meaningless, saying parents who don’t like grandparent visitation orders will just leave the state.
“The court’s already determined it’s in the best interests of the child to have access to the grandparents,” he said. “How can the parent just take off and not have to worry about it anymore?”
Norris said there are other laws — beyond the one dealing with leaving the state — which deal with violation of visitation orders. But Murray said Tuesday’s ruling probably makes them also useless for grandparents as they, too, refer only to parents.
Murray said lawmakers could fix the problem. He said laws in the state of Washington specifically say that any party who has visitation orders can object to relocation plans by the custodial parent.
“I’m hoping the Legislature (here) would do that,” he said.