In 1977, six states had laws allowing grandparents to petition the courts for visitation rights with their grandchildren. Only three states do not have such laws now. This is the finding of Dr. Andre P. Derdeyn, director of Child and Family Psychiatry at the University of Virginia Medical Center, who argues in a recent professional journal that this trend, however well intentioned, could turn into a destructive force on families and children.
"Reasonably healthy family relationships and continuity of family is terrific," he said in an interview. "It's when you get into visitation rights -- which means you battle in court -- and then you're in trouble."
His interest in the area arose several years ago when he was asked to testify at a congressional hearing on the question of grandparents' rights. "I heard various stories. I was rather overwhelmed with the anger and the combat. It sure didn't sound like a whole lot of love I was listening to. It was combat with son-in-law, daughter-in-law."
Early cases of grandparents asserting a right to see their grandchildren arose in situations in which the parent of the children died. In the April issue of the American Journal of Orthopsychiatry, Derdeyn wrote that in the 1970s "as divorce came to the fore as the disruptor of families, legislation increased and began to include divorce as well as death as the condition under which grandparents could petition courts. Courts also began to award visitation to grandparents with more frequency than previously . . . . "
In the typical divorce case, he wrote, the mother could face visitation claims from the children's father and two sets of grandparents. "In many cases of grandparent visitation litigation, the relationship between grandparents and grandchildren is not a very close one, so that the major issue is not separation from a psychological parent, but onset of a new source or exacerbation of a chronic source of conflict."
The new legislation, he wrote, "is the product of intense political activity. Older citizens are increasingly experiencing the divorce of their children, and they are greater in number, healthier, and more politically powerful than in prior decades." And they are lobbying legislators "whose sympathy issues from their own advancing age as well as from the wish to appeal to an important voter group."
As a result, "grandparents are being granted entry to the legal system on a basis not much different from the child's parents," he wrote. While many grandparents, particularly maternal grandparents are of enormous help to their daughters when they are divorcing, "a grandparent's filing suit for visitation during times of children's great losses and changes . . . can only be experienced as yet another stress or threat by the child's primary caretaker and, therefore, by the child. At times when the child's need for stability and security and for being certain upon whom he can depend are very high, such legal initiatives by grandparents are likely only to add to the child's already excessive turmoil . . . . "
"The issue," he said, "is that the parents of the children are the parents, and they're running the family and they have the major responsibility. Parents are supposed to have the task of controlling the children's lives and deciding what happens to them. This sort of thing can be a terrible intrusion. Like so many of the family law rules and practices, they can get distorted very quickly in terms of people's own motivations."
Historically, he said, the only people who had a right to a child were his biological parents. Thus, when a parent reclaimed a child from grandparents who had reared him, the courts sided with the parent. "In many of those situations, the child should stay with the grandparents," said Derdeyn. Grandparent visitation legislation evolved as a compromise, he said. "So often, the judges rationalize this stuff as grandparents providing a haven. It's months of fighting in court, thousands of dollars, months of postponements.
"The capacity for mischief there is tremendous," he said.
It is a sad commentary on families that grandparents would have to go into court in order to see their grandchildren. But it would be even sadder to see more outside pressures imposed on families already weakened by death or divorce. The cornerstone of modern legal thinking in matters of custody and visitation is what is in the best interests of the child. For the best interests of the grandparents to prevail would be a perversion of the legislation, but as Derdeyn warns, the possibility of that happening is very real.