Divorce Law Journal

Amicus Briefs In US Supreme Court Grandparent Visitation Case

Howard Basham at How Appealing has posted amicus briefs for and against writ of certiorari in a grandparent visitation case in the US. Supreme Court, Fausey v. Hiller, No. 06-863.

Should Grandma Divorce Grandpa?

Should Grandma Divorce Grandpa? By Liz Pulliam Weston appears at MSN Money. The population of divorced people over 65 has exploded in the past 15 years, and elder-law attorneys suspect money is at least partly to blame. The idea that money might be a factor in divorce isn't news. But instead of fighting over their money, these attorneys say, older people who divorce might be trying to preserve it. Christine Crawford of Aurora, Ohio, started divorce proceedings after her husband's care for dementia consumed more than $100,000 of their savings.

Crawford said she didn't want to divorce her husband, with whom she'd raised three children, but it was the only way to preserve what was left of their life savings.

"All along I kept saying, 'Absolutely not. I won't do that,' " said Crawford, whose husband died before the divorce was final. "I was so proud of the fact we'd been married for 42 years."

Trapped by aid-program rules
To understand why Crawford faced such a wrenching decision, you need to understand some background:

Medicare, the government insurance program for people 65 and over, doesn't cover long nursing-home stays.
But Medicaid, the federal health program for the poor that does cover such care, generally requires people to exhaust their financial resources before they can qualify for help.
When one spouse gets sick, many married couples face the uncomfortable prospect of having to "spend down" most of their assets to qualify for Medicaid, leaving little for the healthy spouse to live on. If the spouses divorce, however, the healthy spouse may be able to preserve more of the couple's assets.Elder-law attorneys suspect that's among the reasons the proportion of people over 65 who list their marital status as "divorced" has risen nearly 60% since 1990, compared with an 8% rise in the proportion of divorced adults overall.

The attorneys fear the trend may accelerate in coming years, at least in some states, because of recent changes in Medicaid laws that make it tougher to qualify. I outlined some of those changes in "Feds target Grandma's Medicaid."

I concur with the author's sentiments that our federal laws should not encourage divorce.

Kentucky: Grandparent Visitation

This case is not yet final.
Vanwinkle v. Petry, __ S.W.3d __ (Ky. App. 2007), 2007 WL 121965 (Ky. App.)

Trial Court ordered that Grandparents were to approve any change in Mother’s visitation with children, though Mother and Father shared joint custody. Trial Court also, sua sponte, increased maternal grandparents’ visitation with minor grandchildren from one to two weekends per month.

Issue One: May the Court, sua sponte¸ award visitation to grandparents?

More Discussion About Grandparent Visitation

The Family Law Prof Blog reports: "Many thought the U.S. Supreme Court had essentially settled this issue in 2000 when it ruled that Tommie Granville, a mother in Washington state, could limit to once a month her two girls' contact with their paternal grandparents after the girls' father had committed suicide. But the issue is flaring anew. The highest courts of Pennsylvania, Utah and Colorado recently ordered grandparent visits in disputes strikingly similar to the 2000 case." They link to a USA Today.com Yahoo news report of October 5, 2006, Court Fights Hurt Children.
We posted about these cases here. Marcia Oddi at IndianaLawBlog posted about them here.

Two New Post-Troxel Grandparent Cases

Two More State Supreme Courts Uphold Grandparent Visitation Laws - Despite the Supreme Court's Holding that They Can Be Unconstitutional is an online article by Joanna Grossman posted yesterday. In it she digests the recent Utah and Pennsylvania cases upholding grandparent visitation along with links to them, to Troxel and to other post-Troxel cases
"Importantly, though, the Troxel Court did not rule in such a way as to necessitate the invalidation of grandparent visitation laws nationwide.
Granted, some third-party visitation statutes have been struck down under Troxel. Iowa, for example, struck down its law, criticizing the legislature's substitution of "sentimentality for constitutionality," to the detriment of parental decisionmaking.
However, within the last two years, California and Ohio have both upheld their state's laws against similar challenges, and, within the last month, Pennsylvania and Utah have joined them.
The Pennsylvania Supreme Court ruled, in Hiller v. Fausey, that a state law permitting grandparent visitation over the objection of the child's sole living parent was constitutional -- even without any showing that denying grandparent visitation would cause harm to the child...."
The Utah Supreme Court ruled similarly in Uzelacv. Thurgood, another case in which a father denied visitation with maternal grandparents after the mother's death."
It's a useful article to save in your brief bank.
UPDATE: Indiana Law Blog has a number of posts on this issue as well.