Judicial Notebook

In a Supreme Court term packed with controversial cases, one particularly contentious case will examine the constitutionality of "grandparent visitation" statutes. In Troxel v. Granville (No. 99-138) (68 USLW 3175), the Court will consider a Washington state statute that permits grandparents to petition a judge for the right to visit their grandchildren over the objections of the children's parents.

Under common law, parents generally controlled who may interact with their children. Thus, when forbidden by the parents, grandparents did not have a right to visit or communicate with their grandchildren. During the past 25 years, however, every state (although not the District of Columbia) has enacted a statute that permits grandparents (and in some instances other individuals) to petition a court for visitation rights over the objection of the child's parents. These statutes generally specify the circumstances under which visitation can be ordered. They direct the judge hearing a petition to focus on the best interests of the child and place the burden of proof on the applicant.

Emotional tugs of war

These judicial proceedings almost inevitably produce highly polarized positions, can be bitterly contested and highly acrimonious, and may lose sight of the interests of the children caught in the middle of these controversies. Those who support grandparents' visitation tend to emphasize that grandparents can play an important role in their grandchildren's lives by serving as mentors, role models or family historians. They may even take on a major responsibility for rearing these children and may provide an important source of emotional stability, nurturing and affection. Opponents to grandparents' visits tend to argue that court-mandated grandparent visitation can undermine parental authority and parent-child relationships and interfere with parents' ability to shape the values and education of their children. They also claim such visits could harm children by interjecting them into the midst of an ongoing conflict between parents and grandparents.

Sadly, there is little empirical research in general on grandparents' roles in child development or that specifically addresses court-mandated grandparent visitation, including the effects of mandated grandparent visitation and whether judicial proceedings resolve or exacerbate the problems that led to the initial petition. Although there has been little research directly on point, we do know that custody disputes in divorce proceedings are among the most bitterly contested and acrimonious of judicial proceedings and that such proceedings can have a harmful impact on the children involved. Also, litigation in general may disrupt relationships, diminish understanding and cooperation, impose an economic and emotional toll, and extend the time needed to resolve a matter. Furthermore, social scientists have established that the nature of the process used to resolve disputes can strongly influence parties' acceptance and support of the outcome. For example, individuals consider proceedings to be more fair and satisfactory, regardless of the outcome, when permitted to voice their views and to share in the decision-making process (Lind et al., 1990).

Unfortunately, the Court in Troxel may focus on the competing normative visions of family life without giving adequate attention to the process used to address individual disputes over grandparent visitation--a process that may exacerbate rather than resolve such disputes. What state statutes have done is to place these disputes in the laps of the courts, even though it has been widely acknowledged that courts are poorly equipped to resolve such disputes. The result has been to impose a hierarchical decision-making model that places decision-making authority in the hands of a single person, notwithstanding that person's ability to successfully resolve the dispute.

Another approach

An alternative to assigning ultimate decision-making authority to a judge is to establish a framework for a consensus-based approach where the concerned parties are brought together to focus on what should be their overarching concern--namely, the children's welfare. Rather than rely on a rights-based analysis to resolve this controversy, the Court may wish to note that family mediation (which may include counseling) is widely employed in divorce proceedings--proceedings that involve deeply felt and volatile positions about family life. Rather than employing the "blunt instrument" of the courts, grandparents filing a visitation petition should perhaps instead be diverted to use dispute resolution. This can reduce the likelihood of an outcome being unilaterally imposed that is resisted and resented.

Furthermore, it is unlikely that a single outcome can permanently resolve such disputes, as visitation may need to be addressed periodically throughout children's development as their relationships with adults evolve. A mediation-type mechanism may lay groundwork enabling parties to resolve future disputes themselves, thereby avoiding the necessity of revisiting the courts for resolution.

"Judicial Notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.