Holding Fast to Grandchildren

When their sons and daughters divorce, grandparents are adopting tough
tactics to preserve family ties

By Christine Larson

The Wall Street Journal

Have your lawyer call my lawyer.

They are probably the last words a grandparent expects to hear when making the simplest of requests: to spend some time with a grandchild. But that message today is by no means unusual. Nor is the question that growing numbers of grandparents confront each year: If my child divorces, will I become divorced from my grandchildren -- physically, emotionally or financially?

If your own family has managed to dodge the issue to date, consider yourself lucky. Fully half of all children are expected to see their parents' marriage dissolve, according to the Stepfamily Foundation in New York . In 1998, an estimated 10.1 million children -- about 14.2% of all children in the U.S. -- lived with a divorced or separated parent who hadn't remarried, according to the Census Bureau.

But where once grandparents hesitated -- out of fear or ignorance -- to join the fray, many are now displaying a new attitude. With the help of attorneys, therapists, family courts and estate planners -- as well as new statutes that help protect visitation rights -- grandparents today are better equipped and more willing than ever before to preserve family ties.

"Grandparents have become much more active in fighting to keep contact with their grandchildren," says Ethel Dunn, executive director of Grandparents United for Children's Rights Inc., a nonprofit group based in Madison , Wis. , that assists grandparents with visitation and custody problems. Indeed, calls from older adults seeking guidance after a child's divorce come in at the rate of 60 to 75 a week, nearly twice that of 1989.

Of course, what most grandparents want is to help shelter their grandchildren from the pain of a broken home. And while some grandparents are reluctant to interfere, some experts say a continuing grandparent relationship can significantly ease a child's suffering.

"When parents divorce, children look to the grandparents for stability," says Dr. Arthur Kornhaber, president and founder of the Foundation for Grandparenting in Santa Fe , N.M. , and author of the book "Grandparent Power." "If the grandparent relationship is intact, the children feel secure."

What follows is a look at some of the most effective strategies that grandparents are employing to keep relationships with their grandchildren intact.

Because grandparent visitation struggles sometimes involve years of court appearances, legal expenses and emotional warfare, some grandparents nip problems in the bud by having their visitation rights written into the judgment of divorce. This gives grandparents the power to seek immediate recourse through the courts when visitation problems arise, rather than filing a new court case with all its associated costs and delays. Parents violating the judgment may face jail time or fines.

"If grandparents know in advance that visitation is going to be a problem, I would counsel them to protect their interests now," says attorney Richard Victor, founder of the Grandparents Rights Organization, a nonprofit group in Bloomfield Hills , Mich. , that supports grandparents who have been denied contact with their grandchildren.

A custodial parent's intention to move out of state or a history of visitation problems are both good reasons to have a grandparent-visitation paragraph written into the decree, Mr. Victor says. He adds that visitation problems happen most frequently to parents of the noncustodial parent, especially if that parent was denied visitation, doesn't see the children frequently or is otherwise out of the picture.

Mr. Victor estimates that 80% to 90% of all grandparent visitation cases are successful, but says that, in his experience, the success rate of grandparents petitioning to be included in the divorce decree is even higher.

Twenty years ago, state laws didn't recognize grandparent visitation rights. But by 1989, all 50 states had adopted statutes allowing grandparents to petition for visitation time when the child's parents divorce. And a federal statute adopted last year now requires states to respect each other's decisions regarding grandparent visitation, making visitation easier to enforce across state lines.

Lillian Giosa of St. Augustine , Fla. , decided to intervene when her son and daughter-in-law were preparing to divorce in 1992. Mrs. Giosa's visits with her grandchildren, once a near-daily occurrence, had become infrequent, and she feared that this, coupled with an increasingly strained relationship with her daughter-in-law, signaled visitation problems ahead. Although Mrs. Giosa saw the children when they visited their father, she believed those visits, too, would be curtailed if her son remarried.

Mrs. Giosa's attorney advised her to petition to intervene in the divorce and request grandparenting time. The disputing parties and their attorneys then met and agreed that Mrs. Giosa would see her five-year-old grandson every other week. Her 12-year-old granddaughter would be allowed to make her own visitation decision. The attorneys referred the agreement to the judge, who issued a temporary court order, which later became part of the judgment of divorce.

Mrs. Giosa's court order specified that she would see her grandson on alternate Tuesdays from 3 p.m. to 6 p.m. Such specificity becomes crucial if grandparents later need to enforce the order. "If the court just says `reasonable visitation' is to be settled by the participants, it's very difficult to prove visitation has been denied," says Ms. Dunn of Grandparents United for Children's Rights.

While grandparents may request any amount of visitation time, Mr. Victor says the court might typically grant one or two visits a month, with a day or two during holidays, or a longer recreational period if the grandparents live far away. When deciding whether to award visitation, the court may consider the child's age, visitation arrangements with the noncustodial parent, and the distance from the grandparents.

In addition, the court will usually consider the grandparents' previous relationship with the children. Mrs. Giosa says her frequent contact and closeness with her grandchildren before the divorce was an important factor in winning her visitation time. If the grandparents haven't spent much time with the child, they aren't likely to win much visitation time initially, Mr. Victor says, although visitation might increase if the relationship flourishes.

While a grandparent visitation paragraph in a divorce decree can be a valuable tool for forestalling problems, Mr. Victor warns it isn't a measure to be taken lightly. "The last thing divorcing people need is unnecessary intervention by another person," he says. Grandparent intrusion with parental authority has caused serious reservations among parents, civil-rights groups and even some grandparents, who have lobbied against grandparent visitation statutes in some states.

"If you're a parent, deciding who your child associates with is one of the most essential ingredients in child-rearing," says Billy Sightes, one of the founders of the Coalition for the Restoration of Parental Rights, of La Porte, Ind., an alliance of several regional parents' rights groups. "If that's taken away, and a judge who doesn't know the child makes the decision, that intrudes on the rights of parents."

Even if grandparents don't have their visitation rights written into a divorce decree, they might be able to avoid protracted court battles thanks to the increasing use of mediation -- negotiation aided by a neutral third party. Supporters of mediation say the process usually costs less, moves faster and produces more durable solutions than a court battle.

"The parties can be a lot more creative and have more control in mediation," says Naomi Karp, associate staff director of the American Bar Association's commission on legal problems of the elderly. "If they went before a judge, they might end up with a solution no one's happy with."

Since 1989, the American Bar Association has officially recommended mediation as the preferred method for resolving grandparent visitation disputes. In 1996 and 1997, seven states passed statutes requiring or strongly encouraging mediation in grandparent visitation disputes. Some, but not all, states have adopted certification requirements for mediators, who are usually attorneys, family therapists or social workers.

Mediation may take place through the court system and produce a court order for visitation, or as a private initiative resulting in a family agreement. Most of the time, these agreements aren't enforceable, unless the disputing parties or their attorneys file it with the court. In a few states, a signed agreement would be enforceable as a contract.

Both private and court-ordered mediation sessions usually begin with a gathering of all parties, where the mediators lay down ground rules. They then frequently separate the parties in different rooms, then shuttle back and forth to negotiate a solution.

Grandparent visitation disputes are often settled in a single session, which may last several hours, but sometimes require several sessions to resolve. There is a downside to mediation in some states: Conversations from the session may be used as evidence in court. Other states don't allow that, and many private mediators have their clients sign a paragraph agreeing not to call the mediator to testify if the matter goes to trial.

While the process sounds civilized, mediation sessions can grow heated, says Ailene Hubert, a mediator in Fort Lauderdale, Fla. "In one case, the grandmother was so angry with her ex-son-in law that she swung her cane at him," says Ms. Hubert, who was nevertheless able to negotiate an agreement by the end of the session.

Whether the mediation is court-ordered or privately initiated, most mediators expect their clients to split the fees. However, grandparents frequently offer to pay for the entire cost as an incentive for the divorcing couple to participate, Ms. Dunn says. Although some court-mandated mediation programs are free, most mediators charge anywhere from $50 to $250 an hour, according to the Academy of Family Mediators in Lexington, Mass.

While parties in mediation need an attorney, legal costs tend to be much lower than in court cases, because far less of an attorney's time is usually required.

There's one professional that every grandparent should see when a divorce is on the horizon -- his or her estate planner.

"You don't want to wait for the divorce itself," says Scott Bieber, an attorney who specializes in estate planning at Schiff, Hardin & Waite in Chicago. "It's definitely time to look at the [estate] plan if you know your son or daughter and his or her spouse are having problems."

Why? If you don't -- and if something untoward should happen to you -- money meant for your grandchild could end up in the hands of an ex-in-law. Under some circumstances, your grandchildren may even be overlooked completely.

"If your child voluntarily gives up parental rights after a divorce, or if he or she dies and the children are then adopted by a stepparent, you may lose your legal standing as grandparent," says Janice Bensky, an attorney specializing in estate planning and probate at Stafford, Rosenbaum, Rieser & Hansen in Madison, Wis.

If you have lost your legal relationship to your grandchildren and you die without a will, the state probate laws that distribute your estate may not count the grandchildren among your heirs. An estate plan that actually names the grandchildren by name can sidestep problems, Ms. Bensky says.

An estate plan alone, however, won't guarantee that money you've earmarked for your grandchildren will be spent as you wish. If your will leaves funds to a minor grandchild, the probate court will appoint a guardian for those funds. You might request that your child be the guardian, but the court could conceivably name someone else, and certainly will if your child has died or become incapacitated. In the eyes of the law, the next logical choice will often be the child's other parent.

Of course, that's not necessarily how the grandparents see it.

"Some grandparents feel their ex-in-law is a dishonest person whom they don't trust at all," Ms. Bensky says. While the guardian is legally bound to spend the money for the benefit of the child, the parent may define that in ways you wouldn't approve. For example, a remarried parent might use your grandchild's funds to pay part of the housing costs for the whole stepfamily.

One popular remedy for these fears: establishing a trust with specific safeguards against the ex-in-law. Ms. Bensky recently helped a Wisconsin grandmother set up a trust to keep her minor grandson's money away from her ex-son-in-law. The grandmother, whose own child had died after the divorce, created a trust that not only prevented the ex-son-in-law from becoming a trustee, but also restricted the distribution of the funds to the child. The grandmother wanted the money to pay for her grandson's college education -- and not to subsidize the ex-son-in-law's lifestyle.

"We included a provision that says if it's necessary for the child's health, the trustee can use the funds for the child's benefit," Ms. Bensky says. "But if the child is living with his father and the father is capable of supporting him, none of those funds are to be used for the child's support."

06/07/1999