June 2003

Many Americans must face the breakup of a child's marriage. A parent may remain friends with a former daughter or son-in-law but there is often little interest in the relationship. Other times, a lot of hostility develops. It may become impossible for the former spouse and the "ex" in-laws to have any relationship at all.

The general rule on visitation is the parent with custody has the right to decide who can visit with and influence the child. The State of Iowa used to allow exceptions to this general rule for grandparents and great-grandparents. Two recent court cases have made changes in this area of the law.

In 2001, the Iowa Supreme Court found part of the Iowa Code dealing with grandparent visitation to be unconstitutional. The Santi case involved married parents who lived together with their children. The parents decided together not to let the grandparents see their grandchildren. The Court agreed with their right to do this and the grandparents did not prevail when they tried to secure the right to visit the grandchilden.

In May of this year, the Iowa Supreme Court ruled again on part of Iowa's grandparent visitation law in the Howard decision. The case involved divorced parents. The father had supervised visitation due to his refusal to go through drug treatment. The paternal grandparents had voluntary visitation for a time, but the mother and her mother were present. Overnight visits were not offered. The husband's parents tried to expand their visitation. The father thought this was a good idea, but his wife did not agree. The Supreme Court said the parent with custody is the one who can decide what is in the "best interests" of the child as far as visitation is concerned.

The court said the grandparent visitation law does not comply with the Iowa constitution. In order for the law to be constitutional, it would have to apply only in cases where a parent has been found unfit. Otherwise, the court finds the decision by the parent to permit or limit grandparent visitation should not be second-guessed by a judge. Although the case dealt with only one part of the law, it appears the decision will be applied to other areas of the grandparent and great-grandparent visitation law. This includes when:

• Parents never married deny visitation;
• One parent dies, and the surviving parent denies visitation;
• The child is adopted by a new spouse of the custodial parent and visitation is cut off; and
• A petition for divorce is filed, and visitation is cut off while the divorce is pending.

Based on these two cases, it appears that grandparents and great-grandparents no longer have rights to visitation under Iowa law. The only exception might be where the child has been placed in a foster home. As a practical matter, grandparent visitation is now at the discretion of the parent.