Louisiana Family Law:
Louisiana Grandparent Visitation Rights
The following article was originally printed in Around the Bar, the monthly publication of the Baton Rouge Bar Association. This article is intended for attorneys and therefore has a more “scholarly” approach that may be less easy to read. However, for the lawyer or for the layman with a serious interest in the subject, this article presents a complete review of current Louisiana law on grandparent visitation.
Grandparent Visitation Rights in Louisiana
By Stephen E. Covell
What rights should grandparents have to see their grandchildren? Should it make a difference if the parents are divorced or if one of the parents is dead or in jail? Can the states have legislation allowing grandparent visitation, or is there an absolute constitutional right for a parent to be free from any interference in the way the parent decides to raise the child?
At the present time, it looks like the Louisiana First and Third Circuit Courts of Appeal and the United States Supreme Court may be in disagreement on these issues. Will the Louisiana Supreme Court and/or the Louisiana Law Institute arrive at a solution? Stay tuned…
Troxel v. Granville
At the heart of the dispute is the U.S. Supreme Court case decided in June of 2000 that put many state legislatures into panic mode (Jennifer Troxel v. Tommie Granville 530 U.S. 57). At issue was a Washington State law (Section 26.10.160(3)) that permits “any person” to petition a superior court for visitation rights “at any time” and authorizes the court to grant visitation when it would “serve the best interest of the child.”
Tommie Granville and Brad Troxel had two daughters. They never married and ended their relationship in 1991. Brad lived with his parents, Jennifer and Gary Troxel, and regularly brought his daughters to the Troxels’ house for weekend visitation during a two-year period. Brad committed suicide in 1993, but the Troxels continued to see their granddaughters on a regular basis after their son’s death. Late in 1993, Tommie Granville informed the Troxels that she would not allow any further visitation except for one short visit per month. The Troxels sued for visitation rights in Superior Court under Washington’s statute and asked for two weekends of visitation each month and two weeks in the summer. Granville did not oppose visitation entirely, but wanted to allow only one day of visitation each month without any time overnight. In 1995, the Superior Court awarded the Troxels one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.
Granville appealed during which time she married and her new husband adopted the daughters. Eventually, the case was heard by the Washington Supreme Court which found that the statute under which the Troxels gained visitation unconstitutionally infringed on the fundamental right of parents to rear their children. The U.S. Supreme Court granted certiorari in 1999 and affirmed the Washington judgment. The majority (there were three strong dissents) found that the Fourteenth Amendment provides that no state “shall deprive a person of life, liberty, or property” and that “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by the Court.”
Of course, it could also be argued that this decision has the effect of substituting a court’s understanding of family relationships with the understanding of elected bodies, thereby allowing a mother, for whatever motives, to sever all relations to one-half the bloodline of the children. As Justice Scalia said in his dissent: “I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”
If you look at the many amicus briefs filed in Troxel, you can see how the wagons have been circled for future disputes over this issue. Filing briefs on behalf of the mother were: Northwest Women’s Law Center et al; Coalition for the Restoration of Parental Rights; American Academy of Matrimonial Lawyers; Lambda Legal Defense and Education Fund et al; and nine others. Filing briefs on behalf of the grandparents were: American Association of Retired Persons; Grandparent Caregiver Law Center: National Conference of State Legislatures et al; and two others.
Louisiana Statutory Law
Louisiana has three statutes that control the issue of grandparent visitation. These statutes may or may not run afoul of Troxel, depending on how you wish to argue and, perhaps, whether you are in the Third Circuit or the First Circuit.
Children’s Code Article 1264 is aimed exactly at the situation in Troxel where a parent is deceased and the children are adopted by a new parent:
Art. 1264 Post-adoption visitation rights of grandparents
Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death whose child is thereafter adopted, and the parent of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the minor child so adopted.
Title 9 of the Civil Code Ancillaries allows grandparent visitation where the visitation would be in the best interest of the children:
LSA R.S. 9:344 Visitation rights of grandparents and siblings.
A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.
Finally, Civil Code Article 136 gives visitation rights, under extraordinary circumstances, to a relative by blood or affinity (which, of course, includes grandparents). Where Article 136 conflicts with R.S. 9:344, the provisions of R.S. 9:344 shall supersede Article 136. Before granting visitation under Article 136, the court must consider such things as 1) the length of time and quality of the relationship; 2) whether the child needs guidance which can be best provided by the relative; 3) the preference of the child, if the child is mature enough to express a preference; 4) the willingness of the relative to promote a close relationship with the parent; and, 5) the mental and physical health of the child and the relative.
Louisiana Grandparent Visitation Cases
The Third Circuit narrowly avoided having to rule on the constitutionality of Louisiana’s visitation statutes in State In Re: Satchfield v. Guillot (La.App. 3 Cir. 06/26/02) 820 So.2d 1255. After acknowledging that the case would have to be examined in light of the Troxel decision, the Court concluded that 9:344 did not apply since the parents were together and that the requirement of Civil Code Article 136(B) that there be extraordinary circumstances, upon which the trial court relied, was “a substitution of its judgment for the judgment of Sebastian’s parents without a showing that the parents’ decision is detrimental to the child.” Finding that there were not sufficient extraordinary circumstances, the Court concluded that it did not have to rule on the constitutionality of Article 136(B).
In Dupre v. Dupre (La.App. 3 Cir. 12/30/02) 2002-0902, the Third Circuit had to face the constitutionality of R.S. 9:344 squarely since the father was sentenced to life in prison and the provisions of R.S. 9:344 were certainly applicable to the issue of grandparent visitation. The trial court awarded one weekend per month visitation to the grandparents and the mother appealed. In its decision, the Third Circuit analyzed Troxel and concluded that 9:344, which only allows visitation to the parents of a deceased, interdicted or incarcerated parent, provided it be found to be in the best interest of the child, is easily distinguishable from the ‘breathtakingly broad” statute found unconstitutional in Troxel.
Our own First Circuit has had more trouble deciding where Louisiana’s grandparent visitation statutes stand in relation to the Washington statute found unconstitutional by the U.S. Supreme Court. In Galjour v. Harris (La.App. 1 Cir. 03/28/01) 795 So.2d 350, the First Circuit had no problem distinguishing the Louisiana statutes allowing grandparent visitation from the Washington statute. In Galjour, the mother was deceased and the grandparents petitioned for visitation claiming they had a statutory right under R.S. 9:344 to seek visitation. The father filed an exception claiming the statute was unconstitutional under theTroxel ruling. At trial the grandparents were given visitation on every third weekend subject to some restrictions. The father appealed, claiming the statute was unconstitutional and claiming that the trial court erred in not giving him any special weight in determining what was in his child’s best interest. The court decided that R.S. 9:344 was sufficiently different and limited in its scope from Troxel and “Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.”
The following year, the First Circuit seems to reverse itself in Wood v. Wood (La.App. 1 Cir. 09/27/02) No. 2002 CU 2819. In this case, the father was incarcerated and the mother and grandparents entered into a stipulated judgment giving the grandparents visitation on the first weekend of each month, one Sunday every other month, and one night on all major holidays. By agreement, the grandparents also paid child support. Because of apparent problems with visitation arrangements, the grandparents asked for and received additional visitation of one week in the summers. The mother appealed the award of the additional one week visitation and the First Circuit reversed the trial court’s award of additional visitation.
The first thing the First Circuit had to do in Wood was justify how it arrived at a different conclusion the year before in Galjour. The court cited the fact that the Legislature, after the Galjour decision, passed a resolution requesting that the Louisiana Law Institute study the effect of Troxel on the Louisiana statutes on child visitation and “report its findings and recommendations to the legislature on or before January 1, 2003.” The First Circuit noted that the request by the Legislature was an expression of concern “for protecting the fundamental rights of parents” rather than the broader and more obvious conclusion that the resolution was a request for guidance as to where Louisiana stood and what (if anything) should be done legislatively.
The Court next addressed the constitutionality of R.S. 9:344, even though the issue was not brought up at the trial level. Finally, the Court determined that the trial judge had put an unfair burden on the parent to show that the additional visitation would be detrimental to the child. In his dissent, Judge Bob Downing pointed out that no such burden had been placed on the parent to show the additional visitation was detrimental. The record showed that the trial court addressed the issue properly: the child’s best interest. There was evidence presented that the child enjoyed her visits, that she visited cousins while at her grandparents’ house, and that she is happy there. Judge Downing then discussed the finding in Galjour that R.S. 9:344 does not represent a significant intrusion on the parent’s rights and observed: “I do not see how an additional one-week of visitation during the summer would be a significant intrusion on the child’s relationship with her mother or an interference with her right to make child-rearing decisions.” An appeal was taken to the Louisiana Supreme Court where writs were denied, with two dissents.
As for the grandparents in Troxel, the newly discovered constitutional right in that case effectively took away the grandchildren they helped raise and severed all living links to their dead son. Louisiana’s existing statutes, reasonably interpreted, would avoid that particular injustice.