Family Law

Top Idaho court strikes down grandparent visitation law that is based on best interest of child

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The Idaho Supreme Court has struck down a state law that allows grandparents and great-grandparents to be granted visitation over the objection of fit parents—if it is in the best interest of the child.

In a Sept. 16. opinion, the Idaho Supreme Court said the law implicates the fundamental constitutional right to parent protected by the 14th Amendment, and it doesn’t survive a strict-scrutiny review because it lacks meaningful guidance on how to apply the best-interest test.

The law doesn’t satisfy either prong of a strict-scrutiny review, the state supreme court said. It doesn’t further a compelling state interest because there is no requirement of harm if visitation is denied. And it isn’t narrowly tailored because there are no restrictions on when visitation may be sought.

The state supreme court ruled in the case of parents of three daughters who opposed visitation by the maternal grandparents. The daughters’ mother had testified that she had a co-dependent relationship with her mother (the maternal grandmother), who used manipulation to get what she wanted.

The maternal grandmother had at first opposed her daughter’s marriage, ignored time limits for play dates with the children, and ignored requests that she stop taking the children on extravagant outings, according to the children’s mother.

When the parents moved from California to Idaho, they told the maternal grandparents that they were cutting off contact with them. The grandparents filed a petition for visitation in April 2017.

The Idaho Supreme Court’s strict-scrutiny test was based on principles established in a 2000 U.S. Supreme Court decision, Troxel v. Granville. In that case, the Supreme Court ruled that Washington’s visitation law was unconstitutional as applied in the case before it. The Idaho law was similar but slightly narrower than the Washington law, which allowed anyone to petition for visitation.

Most states have a grandparent visitation statute or a judicial rule allowing visitation, but the laws vary on who can seek visitation and when they can do it, according to a 2020 survey of all 50 states cited by the Idaho Supreme Court.

Idaho is in the minority because its law does not limit grandparent visitation rights to circumstances such as divorce or families that are not intact, the state supreme court said.

Seven states don’t allow grandparents to obtain visitation rights when families are intact. Several others limit grandparent visitation rights to situations in which the parents are divorced, at least one parent has died, a child is born out of wedlock, an action seeks termination of parental rights, or one or both parents is in a vegetative state.

Nine states have struck down their grandparent visitation statutes either on their face or as applied in the case before the court, the 50-state survey found.

The Idaho case is Nelson v. Evans.

Hat tip to the Associated Press, which covered the ruling.

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