As the Supreme Court of the United States ponders what limits the federal government will put on “grandparents’ rights” to visit their grandchildren, we at the Seniors’ Law Program have been deluged with questions about what rights grandparents have under
As the Supreme Court of the United States ponders what limits the federal
government will put on “grandparents’ rights” to visit their grandchildren, we
at the Seniors’ Law Program have been deluged with questions about what rights
grandparents have under the current Hawai’i law.
These cases are always
born of sorrow. The court is ill suited to referee a battle between parents and
grandparents over time with children.
If such issues go to the courtroom
rather than the kitchen for resolution, much has already been lost.
It is
clear in Hawai’i that the welfare of the child is the “polar star that guides
the discretion of the judge” in awarding visitation rights. It is also clear
that a judge may award such rights to a grandparent in Hawai’i (over the
objection of the parents) if the judge feels the child’s best interest is
served by visitation with their grandparents.
It is probably more accurate
to say that grandchildren in Hawai’i have rights to see their grandparents as
opposed to the grandparents having to see their grandchildren because the issue
is always the children’s best interest, not the grandparents’ best
interest.
But beyond that, very little is clear because we have two laws
that don’t really mesh neatly.
The first statute 577-46(7) states
“reasonable visitation rights shall be awarded to parents, grandparents and any
person interested in the welfare of the child in the discretion of the court,
unless it is shown that rights of visitation are detrimental to the best
interests of the child.”
It looks on the service that grandparents shall be
awarded visitation rights unless it is shown that rights of visitation are
detrimental to the best interests of the child.
But, the Hawai’i Court
ruled in 1998 that a judge has the option to deny rights (in his or her
discretion) even if visitations are not detrimental to the best interest of the
child.
The next statute makes things even more confusing. This is found
just three sections away from the first 571-46.3 and is entitled “grandparents
rights.” Prior to 1998, this statute restricted grandparents’ rights to
situations where “either or both of the child’s parents are deceased, or the
child’s parents are divorced or residing separate and apart.”
This section
was deleted by the legislature in 1998 to make it easier for grandparents to
assert visitation rights even as against intact mom and dad households. Now the
statute reads “a grandparent or the grandparents of a minor child may file a
petition with the court for an order of reasonable visitations rights.
So,
does a grandparent seeking visitation have to show that visits are in the best
interests of the child or only that they are not detrimental? It is not
clear.
What is clear is that whatever grandparents show, the judge can
deny visitation anyway.
The conflict the judges are being faced with is
this:
On one side is the parent who says “this is my child, I am a fit
parent and for reasons that are my business I don’t want my child to have any
contact with this person, who happens to be my child’s biological grandparent.
You, State of Hawai’i, have no right to tell me I must let my child see this
person.”
On the other side is a grandparent who usually is fighting not to
establish a relationship, but to keep a relationship with the child that was
established and now is being broken by one of the other parents.
The
grandparent says, “I helped raise this child. I changed her, I bathed her, she
ran to me when she was hurt and I sang her to sleep. Now this mother/father is
saying I have no right to see this child, it is not fair to me and it is not
fair to the child. The child has a right to know its grandparents, the child is
my flesh and blood.”
The Kaua’i Family Court will hear such cases.
I
personally have established visitation rights for seniors grandparents under
these statutes. Even better, I have used the existence of these statutes as a
bargaining chip to negotiate informal visitation agreements between feuding
parents and grandparents to avoid Court battles.
Since the Hawai’i statute
is one of the broadest in the nation, it is very likely it will be
significantly effected by the Supreme Court’s decision on the Washington State
grandparents rights case. It is also likely from the tenor of the court’s
questions to the attorneys arguing the case that grandparents’ rights be eroded
and not expanded.
Micheal Ratcliffe is president/managing attorney of the
Seniors’ Law Program on Kaua’i. He can be reached at 246-8868.
