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Do Grandparents Have a Constitutional Right to Visit Their Grandchildren?

(10/28/16)- The per person exclusion from the federal estate tax for the year 2017, which is the tax return filed in early 2018, will rise to $5.49 million from $5.45 million.

The top individual tax rate of 39.6% will apply to income above $470,700 for married couples, up from $466,950 in 2016. The standard deduction for individuals will be $6,350, up from $6,300, where it had been in 2015 and 2016.

The personal exemption will remain at $4,050 in 2017

(4/1/16)- We received the following e-mail from one of our viewers, Deborah Hill, and we want to thank for taking the time to alert our older viewers to be alerted to the scam that are confronting them:

Forwarded message ----------
From: d.hill@csinc-mail.com
To: hrubin12@nyc.rr.com
Cc: 
Date: Mon, 28 Mar 2016 20:26:42 +0800
Subject: Phone Scams Targeting the Elderly
Hi,

I came across this page of your site (
http://www.therubins.com/aging/sites.htm) which I know already has a wealth of useful information for seniors and family members so I thought Id reach out and share our latest guide to a particular phone scam that targets the elderly.

Here are the details - 
https://www.callersmart.com/articles/42/Grandparent-Phone-Scam-Puts-Seniors-at-High-Risk

If you think your readers would find it useful perhaps youd consider including our resource as well?

If you have any questions please let me know. Also if youd rather not hear from me again just let me know and Ill make sure I dont appear in your inbox again.

All the best,
Deborah

(2/18/07)- The New York State Court of Appeals, which is the state's highest court, has upheld the constitutionality of New York's visitation law for grandparents. In this particular case the court voted 6-0 in favor of the grandmother Ethel Shutz's of East Hampton right to visit with her 13 year-old grandson, whom she had cared for from the ages 4 through 7, when she was in fact his surrogate mother.

The boy's father (named P.D. in the court papers), who had chosen to be anonymous, argued that the New York law was unconstitutional. He cited the Troxel case, which we discuss in the latter part of this article, wherein the U. S .Supreme Court decided that the state of Washington's visitation law was unconstitutional..

Under New York State law, grandparents can seek visitation rights if one parent of the child is dead. Judges can grant grandparents visitation rights if one parent of the child is dead. If the surviving parent objects to the right of visitation the grandparent must establish that the visits are in the child's "best interest."

"While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost 3 until he was 7, grandmother was his surrogate, live-in- mother," wrote Judge Susan Philips Read.

The boy's mom was diagnosed with cancer in June 1997. At that time the father asked Ms. Shutz, 83, to move into his home to help care for his wife and child. The boy's mom passed away in March 1998, and court documents show that the father asked Ms. Shutz to continue to live in the home and take care of the then 4 year old boy.

The father, boy and grandmother lived together for 3 1/2 years in the father's home in Huntington, L.I. The grandmother acted as a surrogate mom for the boy during this whole period of time.

In the fall of 2001 the relationship between the father and Ms. Shutz had begun to deteriorate because of a dispute between them as to how the boy should be raised. In February 2002 the father ordered Ms. Shutz to leave the home and prevented her from seeing the child for seven or eight weeks. From April to December the father allowed Ms Shutz to see the boy for short sporadic visits.

In January 2003, Ms. Shutz decided to sue for "unfettered" visitation rights. The father countered by seeking a court order prohibiting her from any contact with the child. Ms. Shutz won her case in the Suffolk Supreme Court and the decision was upheld by the midlevel appeals court.

The Supreme Court judge stated that the father had "failed to present any credible evidence warranting either the termination of the relationship" between Ms. Shutz and the child, "or the imposition of restrictions on the right of visitation."

The court also noted that the child had "articulated a deep love for and attachment to " Ms. Shutz. Thomas Campagna represented Ms. Shutz in the case, and William O'Leary, who declined to comment on the case, represented the father.

(10/19/05)- The Supreme Court of Ohio has upheld the constitutionality of the state law that granted visitation rights to grandparents even over the objections of the child's natural parent. In doing so, the court refined the definition of those rights in light of the Troxel decision from the U.S. Supreme Court in 2000.

In the case before the Ohio court the facts of the case were that Brittany Collier, was born to a single mom, Renee Harold in 1997. Her mom, who lived with her parents, raised her for the first two years of her life. Ms. Harrold died of cancer in 1999, but her parents, Gary and Carroll Harrold, were granted temporary legal custody of Brittany thereafter.

The Ohio court then awarded custody of Brittany to her father, Brian S. Collier, who removed her from the Harrold's home several months later. The Harrolds then petitioned the courts for visitation rights under the Ohio law that stated where a parent of an unmarried minor dies, courts may grant grandparents and other relatives of the deceased parent visitation rights if those visits are deemed "in the best interest" of the child.

In the Supreme Court of the U.S. ruling for the Troxel case, the court found that the state of Washington's law was too broad in that it allowed any person to petition for visitation rights. The Ohio law on the other hand specifies that only parents and other relatives of a deceased parent can petition for visitation.

The decision which was written by Justice Alice Robie Resnick also took into special consideration the fact that Brittany had lived with the Harrolds for the first five years of her life. "The facts of this case clearly warrant granting grandparent visitation" to the Harrolds, Justice Resnick said.

(1/17/04)-For the fifth time since 1996 the Florida Supreme Court struck down state laws allowing grandparents court ordered visitation rights. As we discuss below, even though the U.S.Supreme Court has also ruled in this type of case, the picture continues to be dependent on each individual state where the matter arises.

The facts in the Florida case involve a grandmother whose daughter was killed in an auto accident. The daughter, Francis A. Sullivan was unmarried when she gave birth to a boy born out of wedlock in 1999. Ms. Sullivan brought a paternity suit against Landon C. Sapp in 2000. Paternity was established in March of 2001, but the case was still in court that July when Ms. Sullivan died in the auto accident.

Mr. Sapp took custody of the boy after Ms. Sullivan died. Ms. Sullivan's mother, Elizabeth Sullivan, tried to intervene in the paternity case to get visitation rights. Mr. Sapp objected to her claim for those rights. The Supreme Court agreed with the lower courts that decided against Mrs. Sullivan, ruling that unless visitation was needed to protect a child, it was unconstitutional to order it.

A recent decision by the New Jersey State Supreme Court ruled for the grandparents in connection with their right to visits with their grandchildren, in spite of the opposition by the father to allowing them to have liberal visitation rights. The court ruled in favor of liberal visitation rights since the grandparents had proved that not seeing them would be harmful to the grandchildren. The court also upheld the constitutionality of the N.J. visitation law.

The case involved a Bergen County father who argued that the recent Supreme Court ruling allowed him to sharply restrict the visitations by his former wife's parents. The trial court had granted the grandparents liberal visitation rights, but the state appeal court overruled that decision. The N.J. State Supreme Court ruled that the trial court had acted properly when it agreed with the experts who said the children would be harmed psychologically if visits by the grandparents were restricted.

The grandparents who appealed the case to the State Supreme Court were Lynn Jack and Patricia Bradt . Their daughter, now deceased, was divorced from her husband, who allegedly restricted their visitation visits with their two grandchildren. AARP had filed a friend of the Court brief with the New Jersey Supreme Court supporting the constitutionality of the state's visitation law.

Grandparents in all 50 states have some form of legal right to visit their grandchildren. Recent court decisions are cutting back on the visitation rights in line with the Troxel decision of the U.S.Supreme Court that we discuss below. Since that ruling Arkansas, Connecticut, Illinois, Iowa, Kansas and South Dakota have declared their visitation laws unconstitutional. Florida, Georgia, Oklahoma, Tennessee and Washington had previously declared their visitation laws unconstitutional.

In Kentucky, Maine, Massachusetts, Mississippi, Missouri, New Hampshire, Virginia, West Virginia and Wyoming, the respective highest courts in those states have voted in favor or the state's visitation laws. The matter is now pending before the Michigan high court in connection with grandparents visiting rights.

Massachusetts's highest appellate court, the Supreme Judicial Court, has upheld the state's law that gives grandparents the right to visit their grandchildren. The court did require however that the grandparent must prove that the child's well being would suffer "significant harm" without the visit.

Judges in Massachusetts previously could permit visits if they thought it was in the child's best interest. The case arose when John Blixt sued his daughter, Kristin, for the right to visit with his grandson in spite of his daughter's refusal to allow the visits. Kristin, who is a single parent, filed to dismiss the suit on the grounds that it was unconstitutional. The court remanded the proceeding to the Plymouth County Family and Probate Court where Mr. Blixt will have to prove that his grandson's well being would be negatively impacted by his not receiving the visits from his grandfather.

On January 12th, 2000 the United States Supreme Court heard oral arguments in the case of Troxel v. Granville, No. 99-138. On June 4, 2000 the Supreme Court ruled that a Washington State law went too far in permitting a judge to order visiting rights for grandparents over a mother's objection. The Court ruled that parents "have a fundamental right to make decisions concerning the care, custody and control" of their children. The vote was 6-3 and was not decided on the issue of constitutional right of visitation by a grandparent. The court offered no guidance regarding the constitutionally legality of similar laws in the 49 other states where such laws have been passed.

The 3-justice plurality found that the law had been unconstitutionally applied to order visits by the grandparents in the case in question.

The bare facts of the case are relatively simple. The State of Washington passed a law in 1994 that allows any person to petition the court for visiting rights at any time, which a court could order when visits " may serve the best interest of the child."

In this particular case the grandparents, Gary and Jenifer Troxel petitioned the Court to allow them to visit the children of their late son who had committed suicide. The mother of the children, Natalie, 11 and Isabelle, 9 opposed the visitation. No claim whatsoever was made that the mother Tommie Granville Wynn was an unfit parent. The mother's attorney, Catherine W. Smith argued that in the absence of any evidence that the children are being harmed, the parent should have an absolute veto power as to who should be allowed to visit her children.

The petitioner's attorney Mark D, Olson argued that the state has the power to pass such a law. The mother was willing to allow some visitation rights to the grandparents but not the 2 weekend a month schedule that they wanted.

All 50 states have some form of "grandparents visitation" laws. In the State of Washington even third parties are allowed to petition the court for visitation rights. Justice Sandra Day O'Connor wrote the opinion for the 3-Justice plurality. In her opinion she stated that "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."

In his dissenting opinion Justice Arthur M. Kennedy stated that the court should have confronted rather than have avoided the question as to the constitutionality of laws regarding visitation rights being in the best interests of the children. In his view such laws could be constitutional if directed to people who had acted "in a care-giving role over a significant period of time." Justice John Paul Stevens in his dissent warned against adopting a rule that would allow parents to exercise "arbitrary" power over their children's contact with other adults.

Voting with the majority Justice David H. Souter voted to strike down the Washington law in all possible applications. The 6th member of the majority was Justice Clarence Thomas who suggested that he would go along with Justice Souter''s viewpoint. Chief Justice William H. Rehnquist and Justices Ruth Bader Ginsburg and Stephen G. Breyer joined Justice O'Connor's opinion.

FOR AN INFORMATIVE AND PERSONAL ARTICLE ON PRACTICAL SUGGESTIONS WHEN SELECTING A NURSING HOME SEE OUR ARTICLE "How to Select a Nursing Home"

By Allan Rubin
updated October 28, 2016

http://www.therubins.com

To e-mail: hrubin12.@nyc.rr.com or allanrubin4@gmail.com

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