If grandma and grandpa want time with the grandkids, they may need to see a judge first. And more of them are deciding to do just that.

As the American family continues to break down, grandparents who are getting squeezed out of the picture are increasingly seeking court-ordered visitation with their grandchildren. One such case is pending in the Illinois Supreme Court; the U.S. Supreme Court could rule on another case as early as this month. Whatever the rulings in these cases, the issue is likely to generate increased public attention over the coming months.

"In the absence of a will and in the case of divorce or separation or death, the grandparents should not be made to suffer," argues state Rep. Mary Flowers, a Chicago Democrat who sought unsuccessfully this year to expand grandparents' rights to sue for visitation. "The grandparents and the grandchild cannot divorce their relationship as the parents can divorce their relationship."

Illinois already has a law on the books granting grandparents visitation rights in certain cases, but Flowers wants to give them more legal leeway to sue, including those instances when the children are in the custody of the state Department of Children and Family Services. Flowers' initiative died in the House during the spring legislative session, but she pledged to raise it again during the fall session.

Grandparents' visitation statutes are not new. State legislatures throughout the country began debating their mer-its as early as the 1960s. But now, the courts are struggling with the applica-tion and constitutionality of those statutes. And that effort has once again focused the nation's attention on the rights, even the role, of grandparents.

Rights advocates argue the grand-parents' relationship is an important one. Besides serving as family histor-ians, grandparents can serve as role models and mentors to children. According to some psychologists,

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“The grandparents can get involved with kids in ways that parents can’t,” says Sheldon H. White, a developmen-tal psychology professor at Harvard University. “Generally speaking, grandparents are sort of one step removed from discipline and one step removed from all kinds of problems of living that parents are experiencing. And grandparents have generally been around the track a few times in a way that often parents haven’t. So you get a level of, shall we say, more mature leadership that I think kids benefit from.”

Katherine B. Klehr, a Northfield clinical psychologist and president of the Illinois Psychological Association, agrees. “Potentially, [grandparents] are able to have a relationship that’s based on unconditional love and regard with-out the day-to-day task and burden and responsibility of raising the children to be responsible adults,” she says.

In fact, all 50 states have enacted laws that support that role to some extent by allowing grandparents to seek court-ordered visitation rights. No two statutes are identical, but gen-erally, grandparents are required to show that visitation would be in the “best interests” of the grandchild or grandchildren.

In Illinois, for example, grandpar-ents can sue under certain circum-stances, such as when the parents are divorced or when one parent has died. To secure visitation, grandparents must show that it would be in the child’s “best interests and welfare.” (Flowers’ legislation would have shift-ed the burden of proof somewhat. Under her proposal, grandparents could win visitation unless it was “detrimental to the best interests and welfare” of the child.) Nevada’s statute also applies to children who are born out of wedlock. And other state statutes allow individuals other than grandparents to sue for visitation.

Reasons for these statutes vary, but most observers say two trends are behind them. First, more families are breaking down, which can leave grandparents out in the cold. With grandparents’ visitation laws, they can sue. Second, grandparents are increasingly taking on co-parenting roles within the nuclear family. If visitation is later limited or grandpar-ents feel they’re not getting a fair say in a child’s upbringing, they can sue.

New York was the first state to establish grandparents’ visitation rights. That 1966 statute allows grandparents to sue when one or both parents have died. Because grandpar-ents are often a child’s nearest respon-sible relatives other than parents, legislators in that state reasoned, the law would give courts discretion to grant or deny the visitation.

Other states followed suit. As divorce, out-of-wedlock births, teen pregnancy, drugs, AIDS, and child abuse and neglect increased, grandpar-ents often moved into co-parenting roles. The statistics are telling. From 1960 to 1980, for example, divorce rates more than doubled, from 9.2 to 22.6 divorces per year per 1,000 married women, according to the recent National Opinion Research Center report, “The Emerging 21st Century American Family.” That report also found that from 1960 to 1996, births to unmarried mothers increased from 5.3 percent to 32 percent. Federal statistics show the divorce rate leveled off in the 1980s and dropped slightly in the ’90s. Still, in 1997, more than a million families were broken apart.

When families break up, grandpar-ents can be cut off from their grand-children. In those cases where grandparents were cut out of the family picture for one reason or another, the statutes gave grandparents legal grounds for contact with their grandchildren. And in cases where grandparents had become co-parents, the statutes gave grandparents an avenue to stay put.

“When the family is intact, how the parents raise the child, whether to send the child to summer camp, all these different things are basically decided outside the law and inside the family,” says the report’s author, Tom W. Smith. “But when the marriage breaks down, it becomes a legal issue, and grandparents get dragged into that. They want their rights [relative] to the child spelled out.”

Visitation laws gave grandparents new ground to stand on, argues Linda J. Waite, a family sociologist at the University of Chicago. “My guess is they’re just not taking it lying down as

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But now it will be up to the judicial branch to interpret these laws. From the state of Washington to Delaware, courts have struggled with balancing grandparents’ wishes with the rights of parents to raise their children with-out interference from the state.

While grandparents argue that visitation laws are in children’s best interests and well within the bounds of the states’ constitutional powers, parents counter that such laws intrude on their rights to raise their children. Parents also argue that any potential benefit children get from seeing their grandparents is overrun by the trau-ma of watching their parents’ rights suffer in court.

“Whatever benefits may accrue in happier circumstances are unlikely to result when visitation is imposed over parental objection,” the Coalition for the Restoration of Parental Rights argues in a friend-of-the-court brief filed in the U.S. Supreme Court case. “There is thus no substantial state interest in disrupting families and overruling parental decisions in order to promote grandparent/grand-children relationships.”

The U.S. Supreme Court has consistently held that family auton-omy is a fundamental right under the 14th Amendment and that adult parents can raise their children as they see fit. In 1925, for example, the justices held that parents can choose to send their children to private, instead of public schools. In 1972, it held that Amish families aren’t required to send their children to secondary schools of any kind.

But fundamental rights are not absolute. And constitutional protec-tions notwithstanding, the question is whether the freedom to raise their children on their own allows parents to prevent their children from seeing their grandparents.

The parents in cases before both Illinois’ high court and the U.S. Supreme Court argue that the laws at issue unconstitutionally infringe upon their right to raise their children with-out state interference and should be struck down. Absent a “compelling state interest,” such as harm to their children, the parents argue, the state has no business meddling in their family affairs.

The Illinois case is unusual because a grandmother is suing for visits with her three grandchildren over the objection of her own son and his ex-wife, who agree that the grandmother should not see the grandchildren. (Why the parents object to the grand-mother’s visitation has not been made part of the court record.) Most grandparents don’t sue over the objection of their own child; they generally sue the custodial parent when their child has lost custody of the children because of divorce or other circumstances.

After Gail Lulay sued for visitation, her son, Michael Lulay, and his ex-wife, Kiley Lulay, argued that to construe the statute to allow Gail Lulay to sue over the objection of her own son would be contrary to legislative intent and Illinois public policy. The DuPage County Circuit Court denied the parents’ motion to dismiss Gail Lulay’s petition for visitation, but certified two questions for the Illinois high court’s review: whether the Illinois statute, which permits grandparents to sue when the parents are divorced, allows Gail Lulay to sue over the objection of her own son, and, if so, whether the statute is constitutional. It isn’t a given, though, that the state’s high court will decide the fundamental question of whether the statute is, on its face, unconstitutional.

The case every state is watching, as it may have nationwide implications, is before the U.S. Supreme Court. It has drawn the attention of major special interests, including such pro-grandparent groups as the American Association of Retired Persons and such pro-parent groups as the Coalition for the Restoration of Parental Rights.

Not unlike the Illinois case, this case involves grandparents who want court-ordered visitation rights to their grandchildren. But the facts of that Washington state case are different — and more common to grandparents’ visitation cases, observers say. After Brad Troxel committed suicide in 1993, Jenifer and Gary Troxel sued for visitation to Brad Troxel ’s two daughters, Natalie and Isabelle. The girls’ mother, Tommie Granville, was limiting the time the Troxels could spend with their grand-children.

Under the Washington state statute at issue, which has since been replaced with a more restrictive law, anyone could file a petition for visitation, and it was left to the courts to decide whether the request was in the “best interest” of the child. A Washington state trial court ruled that Jenifer and Gary Troxel should be allowed to spend one weekend a month with their grandchildren, in addition to one week during the summer and four hours on each child’s birthday. Granville appealed, and the Washington Supreme Court struck down the law, ruling it was an unconstitutionally broad infringe-ment on parental rights.

“Short of preventing harm to the child, the standard of ‘best interest of the child’ is insufficient to serve as a compelling state interest overruling a parent’s fundamental rights,” the Washington high court wrote. “State intervention to better a child’s quality of life through third party visitation is not justified where the child’s circum-stances are otherwise satisfactory.”

The U.S. Supreme Court is expected to issue a ruling in Troxel v. Granville this month.

Meanwhile, Illinois’ high court heard oral arguments in Lulay v. Lulay last March and could issue its decision at any time.

Whatever the courts rule in these and other cases, one issue remains: as the traditional nuclear family continues to erode, statutes allowing grandparents, and other nonparents, to sue their way into the family picture will continue to evolve.

“The family feud started with the Book of Genesis, it’s always been there, and I don’t think it’s going to get any better now,” says Rep. Flowers. “In a perfect world, we wouldn’t have to have this type of legislation. But, unfortunately, we do.” .

Aaron Chambers is the Statehouse reporter for the Chicago Daily Law Bulletin.

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