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Grandparents’ Court-Ordered Visitation Rights Under Review

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Should grandparents have the right to enforced visitation with their grandchildren? Does the U.S. Constitution permit states to impose grandparent visitation on parents? Does state law adequately protect both the interests of families and the well-being of grandchildren? These are the questions posed by the U.S. Supreme Court case of Troxel v. Granville, argued January 14, 2000, but not yet decided.

Since Elder Law Issues’ last general discussion of grandparent visitation rights (“Rights of Grandparents to Visitation, Custody”) in October, 1995, the law has developed considerably (see, for example, the Arizona case reported in “Grandparents Given Visitation Rights After Death of Daughter”). Now Gary and Jennifer Troxel’s request for visitation every other weekend with their late son’s two daughters has reached the U.S. Supreme Court, after the Washington State courts in 1998 refused to order the girls’ mother to submit to the visitation.

Washington’s law (like Arizona’s) referred to the “best interests” of the minors. That, said the Washington State Supreme Court, could not be allowed to override the inherent right of parents to raise their children as they see fit. Unless the Troxels could show impending harm to their grandchildren, the state Supreme Court would not permit them to force visitation rights over the objection of the children’s mother.

Even as the Troxels’ case awaits decision in the U.S. Supreme Court, the issue of grandparent visitation continues to trouble lower courts. In Oklahoma last year, John and Connie Queen sought a court order compelling their own daughter to permit them regular visits with her son. The boy’s father had never been identified, and there were no divorce, custody or support proceedings pending. The Queens argued simply that their grandson’s “best interests” required court-ordered visitation rights.

The Oklahoma Court of Appeals ruled that the Queens had no right to visitation, and that any state statute purporting to give them such a right would be unconstitutional. If their grandson’s custody had already been legitimately before the courts (as in a divorce, custody, support or visitation proceeding between the parents), the Queens might have been able to intervene, said the Oklahoma court. Queen v. Henson, November 29, 1999.

After the U.S. Supreme Court rules in the Troxel v. Granville matter, even that argument may be unavailable. One question raised by the Supreme Court case is whether it is ever permissible for grandparents to intervene in parental custody proceedings.

Meanwhile, Arizona law permits grandparents to seek court-ordered visitation after the parents divorce, if the parents were never married, or if one parent is deceased or missing. Even that limited authority may change once the Supreme Court rules.

Footnote: On June 5, 2000, the U.S. Supreme Court rendered its opinion in Troxel v. Granville. The Court ruled that Washington’s state law is invalid because it violates the U.S. Constitutional guarantee against states enacting laws which deprive individuals of their right to “due process.” According to Justice Sandra Day O’Connor, who wrote the majority opinion for the Court, described the Washington statute as “breathtakingly broad,” and found that it interfered with the inherent right of Tommie Granville (the children’s mother) to care, custody and control of her children. The Court’s decision does not argue that grandparent visitation statutes must be invalid in every case, but only that the Washington statute is invalid since it includes no requirement that the parents’ decisions be given appropriate weight. Read the Court’s syllabus of the opinion, which in turn provides links to the majority, concurring and dissenting opinions.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.