Brave New Statutes: Grandparent Visitation Statutes as Unconstitutional Invasions of Family Life and Invalid Exercises of State Power

Abstract

This article will demonstrate that these open-ended grandparent visitation statutes are unsustainable under either of two theories of law. The first theory, a traditional rights theory, is based on the constitutional recognition of a right to family integrity. This article takes the position that open-ended grandparent visitation statutes are unsustainable under the traditional rights theory because grandparents cannot be included in the family as it is defined by tradition and constitutional law.

Under the second theory, a state power theory, grandparent visitation statues are unsustainable because they do not fall within the range of permissible action by political authority in a free society. Grandparent visitation statutes are unjustifiable under a police power theory of political authority, and, since they impact fully functional intact families, they cannot be justified as an exercise of parens patriae power. Instead, they represent ill advised experiments in social psychology.

Keywords: grandparent visitation, grandparent visitation statutes, family life, unconstitutional invasions of family life, invalid exercises of state power, parens patriae power, social psychology

JEL Classification: K10, K19, K39