Grandparent-Grandchild Access: A Legal Analysis

EXECUTIVE SUMMARY

In June 2000, the United States Supreme Court decided the case of Troxel v. Granville.  The Court said that as long as a parent adequately cares for his or her children, the state should not interfere with that parent’s constitutionally protected right to make decisions about his or her children’s contact with grandparents.

In March 2001, the Ontario Court of Appeal decided the grandparent access case of Chapman v. Chapman.  The Court held that in the absence of evidence that demonstrates a parent’s inability to act in the best interests of his or her children, a parent’s right to make decisions on his or her children’s behalf should be respected.  These decisions include those about whom the children see, how often, and under what circumstances.

Troxel and Chapman reflect the evolution in jurisprudence in the United States and Canada.  With the paucity of social science research about litigious grandparent access applications, as well as the vagueness of the best interests of the child test, courts have often relied on nostalgic, sentimental notions of the role of grandparents, and have frequently granted access to grandchildren contrary to the wishes of the children’s parents.

Four provinces, Quebec, British Columbia, Alberta and New Brunswick, as well as Yukon, have legislation specifically providing for grandparent access.  Other provincial legislation as well as the federal Divorce Act allow for access applications by people other than parents without explicitly mentioning grandparents.

It is becoming increasingly likely that the Divorce Act and provincial legislation such as Ontario’s Children’s Law Reform Act, may be subject to the scrutiny of the Charter of Rights and Freedoms.  As such, it would be unacceptable for there to be unrestrained judicial interference with the rights of parents to decide what is in the best interests of their children.

It is argued that the best interests of the child test, which is included in all provincial and federal family law legislation, is more appropriately suited to claims between parents than between a parent and a non-parent.  Accordingly, it is recommended that legislation regarding grandparent access provide for a two-stage, child-focussed hearing.  The initial stage would determine whether the grandchild would suffer actual or potential harm if access to their grandparent were terminated.  If no such harm could be shown, then the hearing would conclude and no access would be ordered.  If actual or potential harm could be proven by the grandparents, then the second stage would proceed and access would be determined using the best interests of the child test.

It is recommended that provincial and territorial governments establish programs similar to Ontario’s Office of the Children’s Lawyer, which provides court-ordered counsel for children in custody and access disputes, including those involving grandparents.  Children’s counsel focus their efforts on gathering relevant evidence about the effect of grandparent access on their child clients.  It is particularly helpful to the court to have, placed in context, the input of children who are able to express their views and preferences regarding their grandparents’ access.  Children’s counsel are uniquely positioned to use dispute resolution techniques with the parties and their lawyers to, when appropriate, settle cases.

INTRODUCTION

On January 12, 2000, the issue of non-parents’ rights and in particular the rights of grandparents to have access to their grandchildren, gained widespread publicity when the case of Troxel v. Granville[1]was argued before the United States Supreme Court.  Throughout North America, there were hundreds of articles in newspapers and magazines, on Internet sites and in some academic journals, as well as numerous television news stories, about the issues raised in the case.  The case focussed on a mother who restricted then denied access to her two children to their paternal grandparents.  The issue before the Court was whether the courts can grant grandparents visitation rights to their grandchildren even when the parents of the children object.

There were numerous briefs filed on behalf of interested groups or organizations.  Briefs representing the interests of older individuals, including one filed on the grandparents’ behalf by the American Association of Retired Persons, noted that the number of children whose primary caretakers are their grandparents is growing rapidly in the face of nuclear family dissolution.  These groups claim that for approximately 1.4 million American children, their grandparents are standing in loco parentis.[2]

Briefs representing the religious right, filed on the parents’ behalf, held up the traditional family consisting of married parents and their children.[3]  On the other hand, gay rights organizations asserted that neither side’s position was sufficiently protective of the needs of children being reared in non-traditional families.  In these families the de facto parent may have neither biological nor legal ties to the child.  These organizations argued that courts should take into account the quality and security of the relationship between individual children and adults rather than blood ties or labels.[4]

The American Civil Liberties Union submitted a brief supporting the mother’s position that parents, rather than the state, are presumed to be entitled to act and make decisions in the best interest of their children.  Courts should not be permitted to override those decisions merely because a judge disagrees.[5]

The National Association of Counsel for Children’s brief supported the mother’s position, but urged the Court to allow non-parents who have historically acted in a parenting capacity to be able to apply to the court for access.  The Association is a multidisciplinary professional organization of child advocates comprised largely of lawyers.  Its position before the Court was that the non-parent has the burden of both showing that a significant relationship with a child exists, and that, based on some substantive standard, access will be in the interests of the child, having regard to the common-law and constitutional presumption that parents act in their child’s best interests.  The Association asserted that this approach would ensure that a child’s constitutional rights and best interests would be protected.[6]

These disparate groups all claimed that their perspective would ultimately promote the best interests of children.

Slightly more than a year before the Troxel case was heard by the United States Supreme Court, the report of the Special Joint Committee on Child Custody and Access[7] was tabled in Canada.  The report included among its many recommendations that provincial and territorial governments should give special legislative recognition to non-parents, including grandparents, when resolving child custody and access disputes.  Several lobby groups representing grandparents made submissions before the Committee.

On March 2, 2001, the Ontario Court of Appeal addressed the issue of grandparent access in Chapman v. Chapman.[8]  This important and significant appellate court decision provides some clarity and direction about the visitation rights of grandparents to their grandchildren.

This paper discusses the Troxel and Chapman cases in detail, examines the roles grandparents can play, the suitability of the best interests of the child test in these circumstances, reviews American and Canadian case law, discusses constitutional and policy considerations, and recommends several alternative approaches to grandparent access cases.

TROXEL v. GRANVILLE

The Troxel case involved section 26.10.160 (3) of the Revised Code of Washington, which states the following:

Any person may petition the Court for visitation rights at any time including, but not limited to, custody proceedings.  The court may order visitation rights for any person when visitation may serve the best interests of the child whether or not there has been any change of circumstances.[9]

Paternal grandparents Jennifer and Gary Troxel petitioned the United States Supreme Court for the right to visit their grandchildren, Isabelle and Natalie Troxel who, at the date of the hearing, were ages 8 and 10, respectively.  Tommie Granville, the children’s mother, opposed the petition.

Tommie Granville and Brad Troxel were never married but had a relationship that ended in June 1991.  Isabelle and Natalie are their two daughters.  After Tommie and Brad separated, Brad lived with his parents and regularly brought his daughters to their home for weekend access.  Brad committed suicide in May 1993.  The Troxels continued to see the girls regularly; however, in October 1993, Tommie informed the Troxels that she wished to limit their access to one visit per month.  In December 1993, the Troxels began an action in Washington Superior Court to obtain access rights.  The Troxels requested two weekends of overnight access per month and two weeks each summer.  Tommie did not oppose access but asked the Court to order one day of visitation each month with no overnight stay.  In 1995, the Washington State Superior Court ordered that access occur one weekend per month, one week during the summer and four hours on both the grandparents’ birthdays.

Tommie appealed, during which time she married Kelly Wynn.  The Washington Court of Appeals remanded the case to the Superior Court.  On remand, the Superior Court found that access was in the children’s best interests.  Approximately nine months after the remand order was made, Tommie’s new husband adopted the children.

The Washington Court of Appeals then reversed the Superior Court’s visitation order and dismissed the Troxels petition for access, holding that non-parents lack standing to seek visitation under section 26.10.160 (3) unless a custody action is pending.

The Washington Supreme Court affirmed the Court of Appeals result.[10]  It found that the language of section 26.10.160 (3) gave the Troxels standing to seek visitation, regardless of whether a custody action was pending but concluded that the Troxels could not actually obtain visitation under section 26.10.160 (3).  It based this decision on the United States Constitution, holding that section 26.10.160 (3) unconstitutionally infringed on the fundamental right of parents to rear their children.  The Washington Supreme Court found that the Constitution permits a state to interfere with that right only to prevent harm or potential harm to a child.  Section 26.10.160 (3) does not meet that standard because it does not require a showing of harm.  Also, by allowing "any person [to] petition the court for visitation rights [of a child] at any time," the Washington visitation statute is too broad.  The Washington Supreme Court held that "parents have a right to limit visitation of their children with third persons,"[11] and that, between parents and judges, "the parents should be the ones to choose whether to expose their children to certain people or ideas."[12]

On June 5, 2000, the United States Supreme Court affirmed the Washington Supreme Court’s decision in a 4-3 opinion written by Justice Sandra Day O’Connor.  The Court found that section 26.10.160 (3), as applied here, violated the U.S. Constitution.  Justice O’Connor indicated that the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law,"[13] and that the court has long recognized that the Amendment’s Due Process Clause, "guarantees more than fair process."[14]  It also includes a substantive component that "provides heightened protection against governmental interference with certain fundamental rights and liberty interests."[15]  Justice O’Connor noted that the liberty interest at issue, custody and control of children, "is perhaps the oldest of the fundamental liberty interests recognized by this court."[16]  She also pointed out the "extensive precedent,"[17] whereby "the court has recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children."[18]  In light of this, Justice O’Connor concluded the following:

It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.[19]

The Court held that section 26.10.160 (3), as applied, unconstitutionally infringed on that fundamental parental right because it was too broad.  Its language effectively permits any third party seeking access to subject to judicial review any decision by a parent concerning visitation of the parent’s children.  Moreover, Justice O’Connor noted that, "A parent’s decision that visitation would not be in the child’s best interest is accorded no deference,"[20] as section 26.10.160 (3) contains no requirement that a court give the parent’s decision any weight.  Instead, it places the best interest determination solely in the hands of the judge.  In effect, a court in the state of Washington can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party applies for access, based only on the judge’s determination of the child’s best interests.

The Superior Court’s order was not founded on any special factors that might justify state interference with Tommie Granville’s fundamental right to make decisions concerning the rearing of her two daughters.  The Troxels did not allege that Tommie was a poor or unfit parent.  The U.S. Supreme Court noted that this aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children.  The court cited its own previous decision in Parham v. J. R. et al:

Our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligation"....  The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience and capacity for judgment required for making life’s difficult decisions.  More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.[21]

Justice O’Connor went on to say:

So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.[22]

The Court found that the problem in this case was that the Superior Court attached no weight to the mother’s determination of her daughters’ best interests.

The Superior Court apparently applied exactly the opposite presumption, employing a decisional framework that:

…directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child….  The court’s presumption failed to provide any protection for Granville’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.[23]

Justice O’Connor went on to say:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren.  Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.  And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.[24]

The Court concluded that the visitation order was an unconstitutional infringement on Tommie Granville’s fundamental rights.  The Superior Court failed to accord the determination of a "fit" custodial parent any material weight.  The Court held that "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a "better" decision could be made."[25]

The Supreme Court based its decision on the "sweeping breadth"[26] of section 26.10.160 (3) and its broad, unlimited application in this case.  As a result, the Court did not address a significant constitutional question raised by the Washington Supreme Court—whether the Due Process Clause requires non-parental access statutes to include a showing of harm or potential harm to the child as a condition of granting visitation.  This issue is discussed later in this paper.  Each of the 50 American states now has some form of statute permitting non-parent access, including grandparent access.

CHAPMAN  v. CHAPMAN

The case of Chapman v. Chapman involved an intact family with two children, Leanna and Eric, who, at the time of the trial, were 8 and almost 10 years of age, respectively.  The children’s grandmother, Esther Chapman, age 77, sought access to them.  The parents, Larry and Monica Chapman, and the grandmother had a very poor relationship as they (particularly Monica Chapman) believed Esther to be a negative influence on them and their two children.  Nevertheless, the parents acknowledged that the children spending time with extended family might be beneficial for Leanna and Eric.  Thus, the dispute before the trial judge, Justice Ingram, was not whether access was to take place, but rather the frequency and nature of the access.  Esther Chapman wanted 10 four-and-a-half-hour visits each year.  The parents were prepared to offer six four-and-a-half-hour visits.  Although Justice Ingram acknowledged the parents’ role in raising their children, he stated:

Their right to independently raise their children should not be lightly interfered with….  Ideally the parties would be left to make their own schedule; however, the parents made it so difficult to negotiate that procedures to resolve scheduling disputes must be utilized.[27]

Justice Ingram determined that access would be for at least 44 hours per year, comprising between 6 and 10 visits, depending on the duration of each visit.  Although the difference between the two parties was very small, Larry and Monica Chapman’s position was that they were fit, competent and loving parents who believed that they, not Esther Chapman, nor the courts, should determine how often their children should have access to their grandmother.  Accordingly, the parents appealed the trial judge’s decision to the Ontario Court of Appeal.

Justice Abella, writing for a unanimous court, characterized the issue before it as whether "the disruption and stress generated by the grandmother’s insistent attempts to get access on her own terms are in the children’s best interests."[28]  A review of the trial judgment shows the parents to be somewhat unreasonable, intransigent and insistent about access being determined on their own terms.  However, the Ontario Court of Appeal allowed the parents’ appeal.  Justice Abella stated:

The trial judge acknowledged that the right of Larry and Monica Chapman "to independently raise their children should not be lightly interfered with", yet he defers that right to the speculative hope that continued imposed access to the grandmother will one day produce a positive relationship for these children.  This speculation, it seems to me, is an insufficient basis for overriding the parents’ right to protect the children’s interests and determine how their needs are best met.  These are loving, devoted parents committed to their children’s welfare.  In the absence of any evidence that the parents are behaving in a way which demonstrates an inability to act in accordance with the best interests of their children, their right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often, and under what circumstances they see them.

Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children.  They alone have this legal duty.  Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them.  Nonetheless, the right to decide the extent and nature of the contact is not hers and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children.  The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother.  Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children.  It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.

The trial judge’s articulated purpose was to create a close relationship between two children and a grandmother who loves them.  There can be no criticism of this goal.  But any duty to create such a relationship lies with the children’s parents.  The failure to do so does not warrant judicial intervention, especially in circumstances such as these where the immediate family is functioning well and the children’s best interests are being assiduously nurtured by dedicated parents.[29]

As in Troxel, the Ontario Court of Appeal held that fit and competent parents are presumed to act in the best interests of their children.  As such, the parents should decide with whom they wish their children to interact, not the courts or grandparents.

RELEVANT CANADIAN LEGISLATION

In Canada, the "grey lobby" has been somewhat less successful in moving the provinces and the federal government toward enacting specific legislation regarding grandparent access.  Quebec, New Brunswick, British Columbia, Alberta and Yukon have such legislation.  Article 611 of the Civil Code of Quebec[30] states:

In no case may the father or mother, without grave reason, interfere with personal relations between the child and his grandparents.

Failing agreement between the parties, the terms and conditions of these relations are decided by the court.

By using the words "interfere with personal relations," article 611 seems to imply that there is some form of ongoing grandparent-grandchild relationship that the legislation seeks to maintain.

Section 129 (3) of the New Brunswick Family Services Act[31]states that determinations of access applications must be made on the basis of the best interests of the child.  Section 1 of the Act defines the best interests of the child as, inter alia, taking into consideration the "love, affection and ties that exist between the child and… where appropriate… each grandparent of the child." As article 611 of the Civil Code of Quebec does, so too does the New Brunswick statute contemplate an existing grandparent-grandchild relationship.  Section 1 of the Act also includes a grandparent along with a parent in the definition of immediate family.

In 1997, Alberta amended its Provincial Court Act[32] to make specific provision for grandparent access:

Section 32.1(2)   If a grandparent at any time is refused access to a child, the court may on application make an order as it sees fit regarding the grandparent’s right of access to the child.

  • (3) The application for an order under this section may be made
    • (a) by a grandparent of the child, or
    • (b) by the child who may apply with or without any person interested on his behalf.
  • (4) In making an order under this section, the court shall take into consideration only the best interests of the child as determined by reference to the needs and other circumstances of the child including
    • (a) the nature and extent of the child’s past associations with the grandparent, and
    • (b) the child’s views and wishes if they can be reasonably ascertained.

In 1998, British Columbia’s Family Relations Act[33] was amended to include grandparents as part of the class of people that a court must consider in a custody and access dispute when determining the best interests of a child:

Section 24 (1) When making, varying, or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances:

  • (a) the health and emotional well being of the child, including any special needs for care and treatment;
  • (b) if appropriate, the views of the child;
  • (c) the love, affection and similar ties that exist between the child and other persons;
  • (d) education and training for the child;
  • (e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.
  • (1.1)   The references to "other persons" in subsection (1)(c) and to "each person" in subsection (1)(e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

The Act was further amended in 1998 to allow courts to make a custody and access order to a grandparent:

Section 35 (1) Subject to Part 3, a court may, on application, order that one or more persons may exercise custody over a child or have access to the child.

(1.1) The reference to "persons" in subsection (1) includes parents, grandparents, other relatives of the child and persons who are not relatives of the child.

Similarly, Yukon amended its Children’s Act[34] in 1998 to include the involvement of grandparents in a child’s life as a factor when applying the best interests of the child test in an application for custody or access.

Section 30 Best interests of the child

  • (1) In determining the best interests of a child for the purposes of an application under this Part, in respect of custody of or access to a child, the court shall consider all the needs and circumstances of the child including
    • (a) the bonding, love affection and emotional ties between the child, and
      • (iii) persons, including grandparents involved in the care and upbringing of the child.

The Children’s Act was also amended to explicitly allow grandparents to apply to a court for an order for custody of, or access to, a grandchild.

Section 33 Application to the court

(1) A parent of the child, or any other person, including the grandparents may apply to the court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

That the other provinces’ legislation and the Divorce Act[35] contain no specific language dealing with grandparent visitation is, in large measure, due to the fact that the existing language of the relevant statutes permit such applications to be made.  For example, Section 21 of the Ontario Children’s Law Reform Act[36] states:

A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

Section 21 of the Act must also be read in conjunction with section 24 (1):

(1)The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child.

These two sections when read together appear to be largely consistent with the now constitutionally invalid Washington state statute.  The Canadian constitutional questions regarding third-party and non-parent access and related legislation are addressed later in this paper.

Sections 21 and 24 (1) of the Ontario’s Children’s Law Reform Act must also be read in conjunction with section 24 (2) and, in particular, subsection (g), which states:

(2)In determining the best interests of a child for the purposes of an application under this Part, in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

  • (g) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

When the court is determining whether access is in the best interests of a child, it must by law consider whether access to the child by grandparents, as blood relatives, is in that child’s best interests.

The relief that a non-parent may apply for under section 21 is provided for under section 28, which gives the court broad powers to make an order it deems to be in the best interests of a child.

The court to which an application is made under section 21,

Thus, the legislation in Ontario (and in most Canadian provinces) already allows for grandparents to apply for custody or access to grandchildren.

The Divorce Act allows standing for individuals, other than spouses, to apply for custody of, or access to, a child.  Section 16 says the following:

Therefore, the Divorce Act currently allows for non-parents, including grandparents, to apply for custody of, or access to, a child.  Non-spouses, however, must first obtain leave of the court to pursue an application for custody or access.

"ANY OTHER PERSON":  THE THRESHOLD NON-PARENTS MUST MEET

The provisions for non-parent access contained in the Divorce Act are broad in scope.  While the case law is not entirely consistent, the prevailing judicial position is that for grandparents to be considered as "any other person" having a right to apply for access, "they must, as a preliminary step, establish that they already have a close relationship to the child at the time of the application and that they are not using the application to create or establish such a relationship."[37]

The Ontario Court of Appeal in Finnegan v. Desjardins stated that an applicant under section 21 of the Children’s Law Reform Act must meet a threshold that the application must not be "so patently tenuous and devoid of merit that it was proper to bring it to a halt."[38]  In arriving at its decision, the Court of Appeal relied upon its own decision four years earlier in an adoption case C.G.W. v. M.J. and A.C.,[39] in which there was no relationship in law and there had been no relationship in fact established.

In D. (G.) v. M. (G.), Justice Vertes of the Northwest Territories Supreme Court stated:

In my opinion, the best interests of a child are not served by frivolous or ill-founded applications for custody or access.  Not anyone who merely has an interest in the child should be allowed to force the custodial or biological parent into court.  There must be a connection to the child that can be almost equated to a parental one in the sense of care, nurture and support.[40]

Justice Vertes adopted the comments made by Sparks J. of the Nova Scotia Family Court in Stewart v. MacDonnell:

It seems to me that before standing should be granted by the court, the legal stranger to the child must establish, at the very least, a prima facie case connecting the welfare of the child with continued visits.  This may be proved by demonstrating a lengthy and meaningful prior relationship, a positive bond with the child, and a substantive reason for disregarding the contrary wishes of the custodial parent.[41]

In M. v. W. and R., the British Columbia Supreme Court held that under the Family Relations Act "the designation of ‘any person’ surely has to include someone that has some real connection or real relationship to this child—some tie must exist."[42]

It is established law that in custody and access disputes between parents, it is the child’s right to have contact with the non-custodial parent rather than the reverse.[43] Despite this stated legal principle, the case law often focusses on the respective rights and roles of parents.

Similarly, the case law regarding grandparent access also establishes the principle that access is the right of the grandchild and not the grandparent.[44]  In Meloche v. Frank, Vogelsang, J. stated:

In any question of access, the focus of the inquiry is the child, for the right to access is that of the child and not the right of the claimant, be he or she a parent, grandparent or other person.[45]

THE SOCIAL SCIENCE LITERATURE AND CULTURAL AND JUDICIAL MYTHOLOGY

Given the current high rate of marital breakdown in Western societies as well as the various forms of modern nuclear families, there exist many opportunities for grandparents to play a role in the lives of their grandchildren.  Many grandparents can and do play a very meaningful and positive part in their grandchildren’s lives.  Others can be a negative and stressful influence on grandchildren, either directly or often indirectly by having a poor relationship with the parents.

There are many conceptions about grandparents, some based in reality and others based in social mythology.  Canadian researchers commented on some of these notions of grandparents:

On the positive side, they are seen as being the reserves in times of crises, giving sanctuary, unconditional love, freedom and permissiveness; providing special treats and entertainment; being the transmitters of societal, personal and moral values; and remaining balanced and impartial and above the fray of their children’s divorce….  Older family members may be called upon to provide the missing authority or leadership in a dysfunctional family...

On the negative side, grandparents have been perceived by clinicians as focussed on their own needs, perhaps to fill their empty nests; as making reparation for their own past perceived failures; as impeding the gaining of autonomy and independence in their own children; and as remaining enmeshed and overinvolved with these children through their grandchildren.  Grandparents have been viewed as interfering, indulgent, overprotective, demeaning of the parents and sabotaging their efforts at discipline, competing with their children and wanting to assume former, rewarding roles, tinged with power and control.[46]

In fact, there is a paucity of empirical research, in both Canada and the United States, on disputed access by grandparents to grandchildren.  Cogswell and Henry acknowledge this by stating that "research is needed that more specifically distinguishes among particular types of grandparent figures."[47]

Notwithstanding the limited social science research in this area, judges in both Canada and the United States frequently make comments about grandparents that principally accept the "positive side," as articulated by Wilks and Melville, as a given.

In Troxel, the United States Supreme Court was critical of the Washington Superior Court’s presumption and comments in favour of grandparent access:

The Superior Court’s announced reason for ordering one week of visitation in the summer demonstrates our conclusion well:  "I look back on some personal experiences...  We always spent as kids a week with one set of grandparents and another set of grandparents, [and] it happened to work out in our family that [it] turned out to be an enjoyable experience.  Maybe that can, in this family, if that is how it works out."[48]

In King v. King, the majority of the Supreme Court of Kentucky came to very nostalgic conclusions about grandparent access based on no empirical research:

Under ordinary circumstance, few would dispute that there are benefits to be derived from the establishment of a bond between grandparent and grandchild...

There is no reason that a petty dispute between a father and son should be allowed to deprive a grandparent and grandchild of the unique relationship that ordinarily exists between those individuals...

If a grandparent is physically, mentally and morally fit, then a grandchild will ordinarily benefit from contact with the grandparent.  That grandparents and grandchildren normally have a special bond cannot be denied.  Each benefits from contact with the other.  The child can learn respect, a sense of responsibility and love.  The grandparent can be invigorated by exposure to youth, can gain an insight into our changing society, and can avoid the loneliness which is so often a part of an aging parent’s life.  These considerations by the state do not go too far in intruding into the fundamental rights of the parents.[49]

The minority opinion in King spoke critically of this perspective:

The opinion of the majority makes little pretense of constitutional analysis but depends entirely on the sentimental notion of the inherent value in visitation between grandparent and grandchild, regardless of the wishes of the parents.[50]

In Shadders v. Brock,[51] the court concluded that a strong and meaningful relationship existed between the paternal grandparents and the child on no other evidence than the fact that previous visits had occurred.  The court here, as did the majority in King, held a sentimental presumption by quoting approvingly the following comments from the court in Mimkon v. Ford:

Visits with a grandparent are often a precious part of a child’s experience and there are benefits which devolve upon the grandchild from the relationship with his grandparents which he cannot derive from any other relationship.  Neither the Legislature nor this court is blind to human truths which grandparents and grandchildren have always known.[52]

In Punsly et al. v. Manwah Ho,[53] the Court of Appeal of California was critical of the trial judge’s presumption that access by a deceased father’s parents to their 12‑year‑old granddaughter, who did not have a strong bond with the girl, was in the child’s best interests.  The court quoted the trial judge as stating:

The problem that I see is not [that] there is not a wonderful relationship between [Kathryn] and the [Punslys]...  It’s good to have a nice solid bond between the mother and the child.  I don’t think it is appropriate, though, for it to go to the extent that it excludes other bonds with other people that are significant in her life...  I don’t see any problem with the [Punslys] being similar to a Disneyland dad...  I am a grandparent.  That seems to be what we do for grandchildren.[54]

The court went on to find that:

In light of Manwah’s fitness as a parent and her willingness to voluntarily schedule visitation, in combination with the trial court’s erroneous application of a presumption that visitation with the Punslys was in Kathryn’s best interests, we conclude the application of section 3102 over Manwah’s objections unduly infringed upon her fundamental parenting rights.[55]

Similarly, the Ontario Court of Justice (Provincial Division) in Peck v. Peck attached significance to the very generalized concept of grandparent access:

It is clearly the presumption in law that it is usually in the best interests of a child to know his or her extended family and to gain from contact with both sides of his or her heritage.[56]

In W. (M.) v. W. (D.),[57] the Alberta Provincial Court found that it is in every child’s interest to have as many adults in his or her life as possible who love and connect with him or her in a positive manner, and that a grandparent’s access to a child must not be denied unreasonably or arbitrarily.  As one author observed, these cases tend to "cling to the nostalgic concept of an extended family in which there are differences of opinion, but whose members are joined together by the common bond of family unity."[58]

In Chapman v. Chapman, the Ontario Court of Appeal seemed to recognize the potential benefit that may result in a positive grandparent-grandchild relationship:

A relationship with a grandparent can—and ideally should—enhance the emotional well being of a child.  Loving and nurturing relationships with members of the extended family can be important for children.  When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship.[59]

However, the court also did not want to extrapolate from a generalized notion of a positive grandparent-grandchild relationship and apply it to the Chapman family.  The court stated:

The essence of the grandmother’s submission is that, in general, it is in the best interests of children to maintain contact with members of their extended family.  The test, however, is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.[60]

Article 611 of the Civil Code of Quebec enshrines into law the legal presumption that grandparent access is, unless there is a "grave reason" to the contrary, a positive influence in a child’s life.  In fact, the article states that if there is disagreement between the parties and there isn’t a "grave reason" for access to not take place, then it is only the terms and conditions of the access that are to be determined by a court.

Derdeyn expresses concern about whether high conflict intrafamilial litigation will allow for positive grandparent-grandchild interaction given that the grandparents have successfully gained court-ordered access against the will of the custodial parent(s).[61]  The conflict in these cases is markedly different from the image of intergenerational relationships portrayed in popular culture.

Other researchers have agreed with Derdeyn’s observations and state the following:

If children enjoy the benefits of the grandparenting relationship largely in the context of harmonious intergenerational relations, it is unclear whether grandparents’ efforts to assist their grandchildren will be advanced through litigation making the child’s parents and grandparents adversaries in a courtroom.  Moreover, given the triggering conditions permitting grandparents to petition for visitation rights, it seems likely that children who are already experiencing the distress of a parental divorce or death would be additionally upset by a courtroom dispute between parents and grandparents concerning visitation rights.  This dispute not only poses the threat of immediate emotional distress for the child but, if a visitation petition is granted, can make the child the focus of ongoing conflict between parents and grandparents.  This is an unhappy conclusion because children may significantly miss their grandparents when access is restricted because of intergenerational conflict.  But when such conflict occurs, it is unclear that the benefits of this relationship are ensured through court-ordered visitation.

...This review of the research on the grandparent-grandchild relationship suggests both that this relationship is a highly individualized, variable one and that its benefits to children are contingent, in part, on the mediating role of parents.

…To assume that the relationship with grandparents necessarily benefits children especially when legal intervention is required to maintain it, misrepresents the heterogeneity of grandparenting roles and the diverse influences mediating the impact of this relationship on grandchildren.[62]

Given these comments, it is a challenge for judges, many of whom are grandparents themselves, to not hold generalized presumptions about the benefits of access, which from the existing research have little or no basis in fact.  It is still a greater challenge for politicians, many of whom are also grandparents, to not translate popular stereotypical images of grandparent roles into legislation that further empowers their elderly constituents.  The pressure of the "grey lobby" is something that these politicians must contend with, especially given that a greater proportion of older individuals typically vote than of the general population.