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By Paul Lonardo
Grandparents are an integral part of any family. Children who are fortunate enough to have a relationship with their grandparents know how special it is. This bond is a reciprocal one, with grandparents enjoying the precious time spent together every bit as much as the children, if not more so. Few people think about the legal rights grandparents have until it becomes a personal concern. When a grandparent is prevented from seeing his or her grandchild by the child’s parent, the consequences are devastating and can have legal consequences, with the courts having to get involved in granting visitation rights.
In Rhode Island, grandparents may petition for visitation in Family Court. In order to grant reasonable visitation rights, the court must find that:
Such visitation is in the child’s best interest;
The grandparent is a “fit and proper person’ to have such rights;
The grandparent has repeatedly attempted to visit the child during the 30 days immediately before the date the petition was filed and was not allowed to do so as a direct result of the actions of either or both parents;
The court intervention is the only way the grandparent is able to visit the child; and
The grandparent, by clear and convincing evidence, has successfully rebutted the presumption that the parent’s decision to refuse the visitation was reasonable.
In addition to this general provision, the law also specifically allows grandparents to petition for visitation if their child is deceased or divorced.
An intact family, commonly meaning a married couple, is usually allocated the right to make decisions about grandparent visitation. Apart from this, grandparents suing for visitation must usually meet one of two standards. The easier standard requires grandparents to provide evidence, usually described as “clear and convincing”, that visitation is in the best interests of the child. In states with more stringent statutes, the grandparents may be required to show that the child will suffer actual harm if visitation is not allowed.
Troxel v. Granville, decided in 2000 by the U.S. Supreme Court, is the court case that set the precedent for grandparents’ visitation rights. The heart of the decision is a statement that “fit parents” are presumed to act in their children’s best interests. This is presumed to be true even when parents cut off contact with grandparents and other family members. This case, however, offers no clearly defined standard for granting or disallowing grandparent visitation. Also, it was far from a unanimous decision, known as a plurality decision, meaning that a majority of the justices did not agree. In this case, six opinions were offered: three majority decisions and three dissenting decisions. In short, it did little to clarify the murky waters of visitation rights, and actually dealt a serious blow to grandparents’ rights, significantly reducing grandparents’ chances of winning visitation with grandchildren.
While grandparents in most states have no standing for a visitation suit if the parents of the children are still together, Rhode Island is one of the exceptions to the rule. To bring the state into compliance with the U.S. Supreme Court case of Troxel v. Granville, the grandparent may rebut the presumption that fit parents act in their child’s best interest. Grandparents must show through “clear and convincing evidence” that the parent’s decision to refuse visitation is unreasonable. In other words, the burden of proof is on the grandparents, not the parents.
Legislation regarding this very topic is currently pending in the Rhode Island General Assembly. Senate Bill No. 0383, introduced by Senator Erin Lynch Prata, District 31 Warwick, Cranston, is due to be heard in the Judiciary Committee sometime in April, though no date has been set. In 2016, the Senate passed Resolution No. 2221 that created a Special Legislative Commission to conduct a review and make recommendations regarding grandparents’ rights.
Joan LaFauci of Smithfield is a member of the Alienated Grandparents Commission, and has assisted in making suggested amendments to the current legislation. She will testify in front of the Senate Judiciary Committee again, and requests members of the Senate to reflect on their own grandparents.
“The relationship I had with my grandmother was wonderful,” Joan says. “My grandmother taught me Italian. I remember her walking me to the candy store and buying me penny candy. She died when I was seven years-old, and those and other memories of her still remain clear in my mind and in my heart.”
In Rhode Island, the parents are given “due process” either to grant permission for the grandchildren to see their grandparents or not. They also have the ability to determine the amount of time, where and when the meeting may take place, and under what circumstances it may occur. This occurs only if the judge grants the petitioner(s) their request.
“The best interest of the child must be taken into serious consideration by the courts,” Joan says. “We are requesting that the judge be granted the ability to weigh each petition on a case-by-case basis. This issue is recognized both nationally and internationally.”
Joan hopes to bring to light the problem with Rhode Island courts not recognizing the relevance of grandparents in a grandchild’s life. Many don’t even realize that this bill exists, and her goal is to make people aware of it, and more importantly have them get involved and attend this meeting.
For more information please feel free to contact either Joan at 401-480-5278 or Trish at 401-837-4582. Additional information regarding the legislation can be found at the Rhode Island General Assembly website: www.rilin.state.ri.us.