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Courts struggle with rights of grandparents

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.

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