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To Iaal ... question about Troxel...

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tigger22472

Senior Member
What is the name of your state? Indiana

I understand the Troxel ruling and all of that. I have done some research on it. However, this is what I don't understand. If this is supposed to be the law why is it even when the parent contests Grandparents are still receiving rights around this country? I have seen numerous site with message boards that are either fighting it now or have fought it and lost since the Troxel hearing. I in fact checked into it after my TPR and was told that my ex's mother could file and that in my state they aren't even considering the TPR and adoption of child and still granting GP rights.

Just trying to understand it and hopefully it will help others understand it too.
 


I

I AM ALWAYS LIABLE

Senior Member
tigger22472 said:
What is the name of your state? Indiana

I understand the Troxel ruling and all of that. I have done some research on it. However, this is what I don't understand. If this is supposed to be the law why is it even when the parent contests Grandparents are still receiving rights around this country? I have seen numerous site with message boards that are either fighting it now or have fought it and lost since the Troxel hearing. I in fact checked into it after my TPR and was told that my ex's mother could file and that in my state they aren't even considering the TPR and adoption of child and still granting GP rights.

Just trying to understand it and hopefully it will help others understand it too.
Click to expand...

My response:

Intact families have no worries. However, when there's a death of a spouse, or a dissolution of the spouses, AND when the Grandparent can prove they have been steadily in the grandchild's life, and it would be in the best interests of that child's psyche to maintain grandparent contact, then the court may allow grandparent visitation. It's still a fight, nonetheless.

The loss of a relationship with a nonparent, that has acted as a de facto, or psychological parent, is a factor the court may consider in determining whether parental custody is detrimental to the child. At the very least, a nonparent (alleged de facto parent) seeking custody over a parent's objection is entitled to a hearing on the matter. [Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1159, 101 Cal.Rptr.2d 364, 373]

There are many and varied subtle "nuances" to every situation. Each must be evaluated carefully, and on it's own merits.

In the "other post", there were two parents and the family was intact. In that instance, the GP has no chance at all based upon 14th Amendment grounds.

IAAL
 
S

sroutlaw

Member
Intact families do have worries, in many states (see www.parentsrights.org for more on this).
Judges, even in the Supreme Court, do not MAKE the law, they only interpret it, contrary to popular belief (and often practice). Judges can only rule on the very law brought in front of them; in the case of Troxel, the WA state law was very very broad, allowing ALL third parties to seek visitation. That was what was ruled unconstitutional. In effect, each state now has to fight the same arguments in their own courts AND legislatures, rewrite laws to fit the Supreme Court judgment and let the grandparent groups screw around some more with families, intact, step, adopted or whatever.
Truly, I know way way too much on this subject and yes, intact families can be sued AND LOSE in some states in the union. Only a couple states are truly GP rights-less for everyone.
Troxel didn't actually rule on intact families at all, btw. It ruled on a case where one parent was surviving, remarried with children adopted by stepdad. The grandparents were the parents of the deceased father. Right away many states rejected the ruling as not pertaining to their own laws (my own state of MO was one), since the laws on many states were more specific than those in WA, allowing third party visits only under certain circumstances. The ruling itself is quite specific in saying that it only applies to very broad laws.
Read it thoroughly. Read case law in all fifty states. Parents, even intact, are NOT in control of this - yet.
Steph, PARENTS RIGHTS advocate
 
I

I AM ALWAYS LIABLE

Senior Member
sroutlaw said:
The ruling itself is quite specific in saying that it only applies to very broad laws.

MY RESPONSE: Really? Please quote that from Troxel.


Read it thoroughly. Read case law in all fifty states. Parents, even intact, are NOT in control of this - yet.

MY RESPONSE: You read it thoroughly, and you read case law in all 50 States - - including California? You did? Then I guess you missed the following:

Nonparent visitation rights in a case contested by a parent may constitutionally be granted only if, in applying the state statute, the trial court gives a presumption of validity or at least special weight to the parent's decision that the visitation would not be in the child's best interest. A court decision effectively presuming the opposite (that third party visitation should be granted absent a showing the child would be adversely impacted) directly contravenes the traditional (substantive due process) presumption that a fit parent will act in the child's best interest. [Troxel v. Granville, supra, 530 U.S. at 68-70, 120 S.Ct. at 2061-2062; see Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 862-864, 102 Cal.Rptr.2d 476, 486-487--application of Ca Fam § 3102 to establish grandparent visitation schedule over parent's objection unconstitutionally infringed on fundamental parenting rights where grandparents made no assertion and trial court made no finding that contestant parent was "unfit"; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1110, 105 Cal.Rptr.2d 139, 147]

Judge's discretion subordinate to parent's best interest determination: As a result, the best interest determination in a nonparent vs. parent visitation contest cannot constitutionally be placed solely in the hands of the trial judge. Courts may not disregard and overturn a "fit" custodial parent's visitation decision whenever a third party affected by the decision files a visitation petition. [Troxel v. Granville 530 U.S. at 67-68, 120 S.Ct. at 2061; see Punsly v. Ho, supra, 87 Cal.App.4th at 1106-1107, 105 Cal.Rptr.2d at 144]

IAAL
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T

tigger22472

Senior Member
Not that I'm trying to cause problems.. again just trying to understand... If the SUPREME court ruled on Troxel then how are these things still being done?
 
I

I AM ALWAYS LIABLE

Senior Member
tigger22472 said:
Not that I'm trying to cause problems.. again just trying to understand... If the SUPREME court ruled on Troxel then how are these things still being done?
Click to expand...

My response:

Easy. There are loads of judges who DO NOT agree with Troxel and its progeny. Also, these judges know that the vast majority of contestants cannot afford the appellate process. And, for the odd case that does make it to the appellate court, the trial court judges don't mind that their decision in this type of decision is overturned, because like I said, it's rare that contestants can actually afford the appellate process. So, the trial judge doesn't get "dinged" by the Presiding Judge of the courthouse too badly - - just gets a slap on the wrist.

IAAL
 
T

tigger22472

Senior Member
I AM ALWAYS LIABLE said:
My response:

Easy. There are loads of judges who DO NOT agree with Troxel and its progeny. Also, these judges know that the vast majority of contestants cannot afford the appellate process. And, for the odd case that does make it to the appellate court, the trial court judges don't mind that their decision in this type of decision is overturned, because like I said, it's rare that contestants can actually afford the appellate process. So, the trial judge doesn't get "dinged" by the Presiding Judge of the courthouse too badly - - just gets a slap on the wrist.

IAAL
Click to expand...

Thank you for explaining.. It doesn't seem right but then again not everything concerning the law is... :)
 
T

tigger22472

Senior Member
I have been researching this in Indiana and have found a few things that still confuse me. If it's as you said being up to the judge how is it that my state says nothing of Troxel AND it even changed provisions in 1998 to expand it to include grandparents of intact families ("regardless of marital status"). (I did find it interesting that the g/p's aren't allowed to remove the child from the state without concent. Just this past July they enacted that the grandparent won't receive visitation if they haven't been active in the child's life which is good but it doesn't prevent them from trying.

IC 31-17-5
Chapter 5. Grandparent's Visitation

IC 31-17-5-1
Right to seek visitation
Sec. 1. (a) A child's grandparent may seek visitation rights if:
(1) the child's parent is deceased;
(2) the marriage of the child's parents has been dissolved in Indiana; or
(3) subject to subsection (b), the child was born out of wedlock.
(b) A court may not grant visitation rights to a paternal grandparent of a child who is born out of wedlock under subsection (a)(3) if the child's father has not established paternity in relation to the child.
As added by P.L.1-1997, SEC.9.



IC 31-17-5-9
Adoption; effect on visitation rights
Sec. 9. Visitation rights provided for in section 1 or 10 of this chapter survive the adoption of the child by any of the following:
(1) A stepparent.
(2) A person who is biologically related to the child as:
(A) a grandparent;
(B) a sibling;
(C) an aunt;
(D) an uncle;
(E) a niece; or
(F) a nephew.
As added by P.L.1-1997, SEC.9



Citations Affected: IC 31-9-2-47.5 ; IC 31-9-2-77; IC 31-14-13-7 ; IC 31-17-2-21 ; IC 31-17-5 .

Synopsis: Grandparent visitation. Expands grandparent visitation rights to allow a grandparent to petition a court for visitation rights with a grandchild regardless of the marital status of the child's parents, unless a paternal grandparent is seeking visitation with a child born out of wedlock and the child's father has not established paternity. Allows a court to grant grandparent visitation rights unless the court determines, after a hearing, that the visitation rights may: (1) endanger the child's physical health; or (2) significantly impair the child's emotional development. Provides that a violation of the grandparent visitation order: (1) is punishable as contempt of court; and (2) constitutes grounds for a change in the child's custody. Makes conforming amendments.


Effective: July 1, 1998

Citations Affected: IC 31-17-5.

Synopsis: Grandparent visitation. Allows a parent of a child to petition to establish visitation between the child and the child's grandparent. Establishes factors for the court to consider in determining whether to grant grandparent visitation. Provides that a court may grant grandparent visitation rights over the objection of the child's parent only if the court finds by clear and convincing evidence that denial of grandparent visitation will be detrimental to the child's health, safety, or welfare. Prohibits a grandparent with visitation rights from taking the child outside the state without the consent of the child's custodial parent.


Effective: July 1, 1999.

At least this is a plus for parental rights however it doesn't stop a g/p from trying...

Citations Affected: IC 31-17.

Synopsis: Grandparent's visitation. Creates a rebuttable presumption that a grandparent may not have visitation with a grandchild if the grandparent has not had or has not attempted to have meaningful contact with the grandchild.


Effective: July 1, 2004.
 
B

BelizeBreeze

Senior Member
Nothing in the law precludes or inhibits the rights of anyone to bring suit for visitation. What is being discussed here is the merits of such a suit.

As our intrepid scout (I hope he doesn't get us lost) seems to forget is that while there are many statutes on the books that still allow third-parties to bring suit for custody and/or visitation, those that have been rewritten in the recent past have held to the Troxel guidelines and cite very specific conditions for the awarding of custody/visitation.

Hell, if I wanted to I could file for visitation of your children. However, filing and winning are two separate and distinct things.
 
T

tigger22472

Senior Member
BelizeBreeze said:
Hell, if I wanted to I could file for visitation of your children. However, filing and winning are two separate and distinct things.
Click to expand...

Wanna??? I'll help you...LOL Their being pains today.
 
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