Robin Patricia Graham v. Christy M. Woffard, now Gonzalez, and Sid Gonzalez

Pauls Valley, Oklahoma, family law lawyers represented the partings in a grandparent visitation case.

In 1994, pursuant to 10 O.S. 1991 §5, the district court, using the best interests test, granted the maternal grandmother, Appellant Robin Patricia Graham (Grandmother), visitation with the minor child from one o'clock till five o'clock the first and third Sunday of each month. After the Oklahoma Supreme Court's decision in Herbst, the parents, Christy and Sid Gonzales (Parents), moved to terminate the order. We affirm the trial court's termination of the order.

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"At common law grandparents had no legal right of visitation with their grandchildren over the objection of the parents." Brooks v. Parkerson, 454 S.E. 2d 769 (Ga. 1995). Courts have recognized that "mandating the introduction of a third party, even a grandparent, into a family unit is state action limiting the parents' liberty." Herbst, 971 P.2d at 398. The Tennessee Supreme Court, grounding its decision in a privacy interest derivative from a liberty interest, stated:

We, too, agree that neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions. In so holding, we approve the logic of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982), which applied a two-step process to child neglect cases leading to foster family placement. In Santosky, the Supreme Court approved New York's bifurcated proceeding requiring the state first to establish parental unfitness before placing a child in foster care. This procedure assures parents that a 'best interests of the child' analysis will not pit them against potential foster parents; rather, the state cannot consider a child's 'best interests' until the natural parents have been declared unit.

Hawk v. Hawk, 855 S.W. 2d 573, 581 (Tenn. 1993).

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"Harm to the child" does not equate to "beneficial to the child." In many cases children benefit from relationships with their grandparents. However, unless something in the nuclear home harms or threatens to harm the child, the State may not interfere. The paradox is that if the harm is great enough for State intervention, the issue should not be grandparental visitation, but custody of the child. If grandparents presented evidence to a court that the grandchildren were in harm's way in the nuclear parental household, the court would, because the Oklahoma's Children Code is to be liberally construed3 , "notify the appropriate county office of the Department of Human Services that the child may be a victim of abuse or neglect."4 Whenever a court is presented with evidence that a child is being harmed, it will act.

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The Oklahoma Supreme Court held that because our grandparental visitation statute, as applied to objecting parents of an intact family, did not require a showing of harm before applying the best interest of the child test, it was an unconstitutional intrusion upon the fundamental rights of parents. Statutes allowing grandparental rights visitation are State action. The State may not intervene in the family absent a showing of significant harm or threatened harm to the child.

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We hold that when an order has been entered allowing grandparental visitation, even if entered before Herbst, then the objecting parents of an intact, nuclear family need only show the court two factors: (1) they object to grandparental visitation; and (2) they exist as a nuclear family. Upon such showing, the court should terminate any prior order of grandparental visitation based upon 10 O.S. Supp. 1996 §5.

Affirmed