Iowa statute that allowed visitation rights for grandparents is unconstitutional

Law Reporter, Oct 2003

FAMILY LAW

In re Howard, 661 N.W.2d 183 (Iowa 2003).

The Iowa Supreme Court held that a state statute that authorized awarding visitation rights to grandparents of children whose parents had divorced is unconstitutional.

Here, an Iowa trial court awarded visitation rights to the paternal grandparents of a child whose parents had divorced. The child's mother appealed.

Reversing, the state high court said that Iowa Code Ann. [sec] 598.35(1) allows a court to order grandparent visitation if (1) the child's parents are divorced, (2) visitation with the grandparent is in the best interests of the child, and (3) the grandparent has established a substantial relationship with the child prior to the filing of the petition.

The court took note of the country's longstanding doctrine of parental autonomy, which allows parents to raise their children without state interference unless there is some compelling reason for government to get involved. Traditionally, courts have considered whether the child will be in some danger absent state intervention. This approach is consistent with the essential presumption of fitness accorded a parent and is stringent enough to prevent the state from meddling into a parental decision by simply making what it believes is a better decision. In Troxel v. Granville, 530 U.S. 57 (2000), 43 ATLA L. Rep. 221 (Aug. 2000), the U.S. Supreme Court made it clear that a judge must presume fit parents act in the best interests of their children, and there will normally be no reason for the state to enter the private realm of the family.

The mere fact that a child's parents have divorced should not be seen as a reason for the state to interfere in their parental decision, the court continued. Thus, the possibility of harm to the child must be at the center of a grandparent visitation statute, not the marital status of parents.

It is true that children deprived of the influence of a grandparent may lose important opportunities for positive growth and development, the court said. However, such a generalization falls short of establishing the type of harm that would justify state intervention in a parental decision denying contact.

The statute's failure to require a finding of parental unfitness is its most critical deficiency, the court found. Also, the "best interest" standard used in the Iowa statute is inappropriate because, in the absence of some showing of unfitness, it is up to the parents to decide what is in the best interest of any individual child, the court said. Similarly, the grandparent-grandchild relationship requirement does not address the presumption that fit parents make decisions that benefit their children. Finally, the statute also fails to require the court to consider a parent's objections to allowing visitation.

Accordingly, the court invalidated the grandparent visitation statute as unconstitutional.

Mother's Counsel

Angela A. Shutts, Des Moines, Iowa