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Grandparents' rights in Minnesota

A common issue in family law is what kind of say grandparents have in the lives of their grandchildren. The answer is not simple. Minnesota law is currently confused--very very confused--about grandparents rights.

Parents have a fundamental right to raise their own children. "Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course" Parham v. J. R., 442 U. S. 584, 602 (1979). This means that parents have broad authority over where they live, where they go to school, what medical treatments they have, and who can hang around their children.

Grandparents have no such inherent right; what rights they do have are created by statute. In Minnesota, grandparents can generally assert their statutory rights only upon the initiation of a family court proceeding, e.g. a divorce, a custody establishment, or a recognition of parentage. In this sense, the legislature has recognized, even if unwittingly, the fundamental right of parents to rear their own children. A divorce seems to "throw open the gates," as it were, to third parties making assertions on the children--a good reason not to get divorced, if there ever was one!

The statutory rights of grandparents must be weighed against the fundamental rights of parents. These two presumably cannot be equal, because rights that are fundamental should surely trump those that are created by mere statute. Indeed. The Court has specifically explained that a parent's right to the care, custody, and control of his or her child is "an interest far more precious than any property right." We have also observed that parents have a fundamental right to the care, custody, and control of their children that should not be interfered with except for "`grave and weighty reasons.'" In re Welfare of Children of Coats, 633 N.W.2d 505, 514 (Minn. 2001) (quoting In re Welfare of H.G.B., 306 N.W.2d 821, 825 (Minn.1981)).

However, in practice, Minnesota courts have failed to live up to these ideals. The Minnesota Supreme Court has interpreted Troxel to mean a statute awarding third party visitation must respect the fundamental rights of parents in that

(1) the statute must give some special weight to the fit custodial parent's decision regarding visitation;

(2) there can be no presumption in favor of awarding visitation; and

(3) the court must assert more than a mere best-interest analysis in support of its decision to override the fit parent's wishes. Soohoo v. Johnson, 731 N.W.2d 815 (Minn. 2007).

In practice, this doesn't amount to much. The visitation statute (Minn. Stat. 257C.08.Subd.2) only requires that (1) visitation rights given to a third party (e.g. a grandparent) would be in the best interests of the child; and (2) such visitation would not interfere with the parent-child relationship. But by its very nature, third-party visitation time is going to interfere with the parent-child relationship. In the end, a parent's "fundamental right" to guide the raising of a child depends on the subjective assessments of a judge.

So what if a fit parent wants to exclude his child from seeing the child's grandparents? Does the excluded grandparent have any recourse? The answer: It depends. If a grandparent can prove that visitation rights would be in the best interests of the child and that the parent-child relationship would not be interfered with, the court is likely to give some visitation time.

But this is definitely not guaranteed. If you're a grandparents seeking visitation with a grandchild, you will definitely need legal counsel to help you navigate the muddy law and convince the judge to give you visitation.

To parents: The best way to protect your parental rights is to have a child within wedlock and to stay married. For better or worse, Minnesota law does more to protect the rights of married parents than unmarried/divorced parents. If you are a parent who wants to protect your child, get married and stay married.

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