Open Letter to the Doctor of Common Sense on Grandparents Rights

A recent video that you posted discussing the need for grandparents’ rights and the sensibility of keeping the parents fully involved in the lives of their grandchildren has compelled me to write. This issue goes far beyond what you were told by the grandparent that was writing you. This issue is one that I have been addressing for quite some time and it actually is major failed policies by the states and how we treat never married and divorcing parents who have children simply because of their personal relationship has dissolved.

I’ll first address the issue of grandparents’ rights and tell you that a grandparent, unless they are unfit, has the right under every state law to see their grandchild. What many of these grandparents miss is simply a lack of understanding of how grandparent and third-party visitation rights work. If looking at every state law, I see no state that forbids at any time a grandparent from being allowed to see that their grandchildren. There are limitations though but those limitations are not that great of a barrier for the majority of grandparents to overcome. Often this can be done with the filing of a simple motion with the court and declaration that the grandparent is not being permitted to see the grandchildren. In recent months I have been able to assist numerous grandparents in overcoming these barriers and have done so willingly. Often what happens to these grandparents is that with their children's relationships break up, one of the parents will be placed in a situation where they cannot themselves take advantage of their court ordered visitation, such as when the noncustodial parent is incarcerated or has to move to find work. Situations like that are what the grandparents laws in the state are designed for.

By filing a simple motion grandparents can take advantage of the time that the noncustodial parent is unable to use.

What many of the grandparents fail to recognize is that their rights are truly based on their own children's rights.

We do have a major problem that exists in this country in the way we treat parents simply because their personal relationship dissolved. While every state has a so-called “shared parenting” law, those laws are greatly flawed and have created what I call the greatest social experiment failure of all time. The shared parenting laws because of flawed language often allow the courts to limit the time of the fit parent without just cause. These shared parenting laws claim that they are acting in the “best interest of the child” yet there exists no legal definition of best interest of the child in any of them. Decisions are made by the courts often lack common sense. They make as much sense as you or I walking into a neighbor's house that we know nothing about and telling them how they are going to run their family. That is not something that a person of common sense would do.

Over the course of the last dozen years I have been involved in writing and introducing laws which correct this problem. Decisions of the family should only be handled by family, not by someone that knows nothing of the works of that family.

In reading case law there was a quotation used in Troxel vs. Granville, which was a grandparents’ rights case, from another United States Supreme Court case. That case, Parham, made note that there exists a presumption that two fit parents will always act in the best interest of their own child. There also exist numerous United States spring court cases that have cleared that the right to be a parent is a fundamental right, which is a right granted by God not by law. Unfortunately the state laws often fail to recognize that fundamental right and are written in such a way that the courts base their decision on how to award custody on arbitrary factors. Often these factors are used against the parent simply because they fall into the classification of being a single parent. If these factors existed within an intact family, they would be dealt with internally not externally by a third unknowing party.

One legal note when it comes to fundamental rights is that for a fundamental right to be limited by the state, the state must have a compelling interest, in other words a strong reason to step on that God-given right. Simply dissolving a personal relationship is not a compelling reason.

Until grandparents realize that the best way to protect their rights is to protect the equal rights of their own children, the problem will continue to exist of grandparents missing out on the lives of their grandchildren. The best way to protect the rights of the grandparent is for them to join with those of us that are working to comprehensively change the way that shared parenting is addressed across the states.

As the National Legislative Director for Ohio Family Rights, I'm currently working with organizations in numerous states to bring about comprehensive changes to the way the states address the rights of never married and divorcing parents. This problem has existed and been talked about for nearly 20 years by various organizations, yet those same organizations tell everyone that the best way to change the law is in small steps. I say hogwash! The best way to change the law is to do it comprehensively. Small step changes have been attempted for over 20 years and have gotten us nowhere. At the rate that others suggest that we should change the law, our grandchildren will be rocking their grandchildren on their knees before all the needed changes in family law happen.

Common sense says that that was too long to wait if we are to save society and families of this country.

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Ray Lautenschlager

Ohio Family Rights