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BOSTOl^
PUBLIC
tlBRARY

GRANDPARENTS: THE OTHER VICTIMS
OF DIVORCE AND CUSTODY DISPUTES

HEARING

BEFORE THE

SUBCOMMITTEE ON HUMAN SERVICES

OF THE

SELECT COMMITTEE ON AGING
HOUSE OF REPRESENTATIVES

NINETY-SEVENTH CONGRESS

SECOND SESSION

DECEMBER 16, 1982

Printed for the use of the Select Committee on Aging
Comm. Pub. No. 97-372

U.S. GOVERNMENT PRINTING OFFICE
16-112 O WASHINGTON : 1983

SELECT COMMITTEE ON AGING
CLAUDE PEPPER, Florida, Chairman

EDWARD R. ROYBAL, California

MARIO BIAGGI, New York

IKE ANDREWS, North Carolina

JOHN L. BURTON, California

DON BONKER, Washington

THOMAS J. DOWNEY, New York

JAMES J. FLORIO, New Jersey

HAROLD E. FORD, Tennessee

WILLIAM J. HUGHES, New Jersey

MARILYN LLOYD BOUQUARD, Tennessee

JIM SANTINI, Nevada

DAVID W. EVANS, Indiana

STANLEY N. LUNDINE, New York

MARY ROSE OAKAR, Ohio

THOMAS A. LUKEN, Ohio

GERALDINE A. FERRARO, New York

BEVERLY B. BYRON, Maryland

WILLIAM R. RATCHFORD, Connecticut

DAN MICA, Florida

HENRY A. WAXMAN, California

MIKE SYNAR, Oklahoma

EUGENE V. ATKINSON, Pennsylvania

BUTLER DERRICK, South Carolina

BRUCE F, VENTO, Minnesota

BARNEY FRANK, Massachusetts

TOM LANTOS, California

BOB SHAMANSKY, Ohio

RON WYDEN, Oregon

DONALD JOSEPH ALBOSTA, Michigan

GEO. W. CROCKETT, Jr., Michigan

WILLIAM HILL BONER, Tennessee

MATTHEW J. RINALDO, New Jersey

Ranking Minority Member
WILLIAM C. WAMPLER, Virginia
JOHN PAUL HAMMERSCHMIDT, Arkansas
MARC L. MARKS, Pennsylvania
RALPH REGULA, Ohio
HAROLD C. HOLLENBECK, New Jersey
NORMAN D. SHUMWAY, California
OLYMPIA J. SNOWE, Maine
DAN LUNGREN, California
MILLICENT FENWICK, New Jersey
JAMES M. JEFFORDS, Vermont
THOMAS J. TAUKE, Iowa
THOMAS E. PETRI, Wisconsin
JUDD GREGG, New Hampshire
DAN COATS, Indiana
GEORGE C. WORTLEY, New York
HAL DAUB, Nebraska
LARRY E. CRAIG, Idaho
PAT ROBERTS, Kansas
BILL HENDON, North Carolina
GREGORY W. CARMAN, New York
COOPER EVANS, Iowa
MARGARET M. HECKLER, Massachusetts

Charles H. Edwards III, Chief of Staff

YosEF J. RiEMER, Deputy Chief of Staff

James A. Brennan, Assistant to the Chairman

Paul Schlegel, Minority Staff Director

Subcommittee on Human Services
MARIO BIAGGI, New York, Chairman

JAMES J. FLORIO, New Jersey
WILLIAM J. HUGHES, New Jersey
STANLEY N. LUNDINE, New York
BRUCE F. VENTO, Minnesota
DONALD JOSEPH ALBOSTA, Michigan
GERALDINE A. FERRARO, New York
WILLIAM R. RATCHFORD, Connecticut
GEO. W. CROCKETT, Jr., Michigan
WILLIAM HILL BONER, Tennessee

MATTHEW J. RINALDO, New Jersey

Ranking Minority Member
JOHN PAUL HAMMERSCHMIDT, Arkansas
NORMAN D. SHUMWAY, California
OLYMPIA J. SNOWE, Maine
DAN LUNGREN, California
THOMAS J. TAUKE, Iowa
THOMAS E. PETRI, Wisconsin
LARRY E. CRAIG, Idaho

Robert B. Blancato, Majority Staff Director
John E. Vihstadt, Minority Staff Director

(II)

CONTENTS

Members' Opening Statements

Page

Chairman Mario Biaggi 1

Matthew J. Rinaldo 4

WilUam J. Hughes 6

Norman D. Shumway 8

Geraldine A. Ferraro 9

Tom Lantos 10

Barbara A. Mikulski 11

Chronological List of Witnesses

Hon. Dolores G. Cooper, assembl5rwoman, district 2, Atlantic City, N.J., pre-
pared statement submitted by Hon. William J. Hughes, a Member of Con-
gress from the State of New Jersey 7

Panel 1 — Social issues:

Gerrie Highto, Baltimore, Md 12

Mr. and Mrs. Max Chasens, founders. Equal Rights for Grandparents 16

Mr. and Mrs. Lee Sumpter, founders, Grandparents/Children's Rights,

Inc., Haslett, Mich 20

Mr. and Mrs. Harvey Kudler, Flushing, N.Y 32

Mrs. Henry Engle, Larchmont, N.Y 40

Panel 2 — Psychiatric viewpoint:

Dr. Arthur Kornhaber, Mount Kisco, N.Y., psychiatrist and founder,
Foundation for Grandparents; co-author, "Grandparents-Grandchildren,

the Vital Connection" 50

Dr. Andre Derdeyne, professor of psychiatry, director, Division of Child
and Family Psychiatry, University of Virginia School of Medicine,

Charlottesville, Va 68

Panel 3 — Legal viewpoint:

Judith Areen, professor of law, and professor of community and family

medicine, Georgetown University Medical Center 73

Richard S. Victor, attorney. Oak Park, Mich 83

Appendix

Additional material received for the record:

Doris Jonas Freed, chairperson. Committee on Child Custody Section of

Family Law, American Bar Association, prepared statement

Bettie J. LaMotte, prepared statement

121
125

(III)

GRANDPARENTS: THE OTHER VICTIMS OF
DIVORCE AND CUSTODY DISPUTES

THURSDAY, DECEMBER 16, 1982

U.S. House of Representatives,

Select Committee on Aging,
Subcommittee on Human Services,

Washington, D.C.
The subcommittee met, pursuant to notice, at 9:35 a.m., in room
2261, Rayburn House Office Building, Hon. Mario Biaggi (chairman
of the subcommittee) presiding.

Members present: Representatives Biaggi of New York, Hughes
of New Jersey, Ferraro of New York, Rinaldo of New Jersey,
Shumway of California, and Craig of Idaho.
Also present: Representative Lantos of California.

OPENING STATEMENT OF CHAIRMAN MARIO BIAGGI

Mr. Biaggi. The hearing is called to order.

As chairman of the Subcommittee on Human Services I am
pleased to convene this morning's hearing entitled "Grandpar-
ents— The Other Victims of Divorce and Custody Disputes."

I also conduct this hearing as a grandfather with six grandchil-
dren.

The House Select Committee on Aging is charged with the re-
sponsibility to "conduct continuing comprehensive study of the
problems of the older American, including . . . participation in
family and community life." Our subcommittee is exploring the
problem and issue of providing grandparents with the visitation
rights under law after marital dissolution.

During the course of today's proceedings, we hope to address four
basic questions:

What legal rights do grandparents have to visit their grandchil-
dren after divorce and custody settlements and other forms of
marital dissolution? What are the obstacles to enforcement?

Should a Federal law be enacted to guarantee these rights in the
eight States which have no laws?

Is a Federal law needed to help bring uniformity to the 42 large-
ly different State laws which govern grandparent visitation rights?

Are grandparents being afforded equal protection under existing
State laws which govern visitation rights?

Today in America, approximately 70 percent of older people in
the United States have grandchildren. Statistics reveal that women
become grandmothers at approximately 50 years of age, and men
become grandfathers around age 52. Based on current life expec-

(1)

tancy, this can leave as much as a 20- to 30-year period for the de-
velopment of meaningful relations between grandparents and
grandchildren. That is the positive side of the coin.

On the negative side, over 1 million children a year experience
the divorce of their parents; a startling 48 percent of those who
married in 1970 will eventually divorce. Most people who get di-
vorced will remarry in many instances within 3 years. These con-
temporary shifts in divorce and remarriage are radically changing
the character and structure of the family as we know it. In 1978, 10
million children lived in a household with one natural parent and
one stepparent. Today we have far more than the traditional
grandparenting. We now have the stepgrandparent and the multi-
ple grandparent family. What we seek to address today is what
rights will these grandparents as well as biological grandparents
have to visit their grandchildren after marital dissolution.

Our hearing is structured so we may examine the issue from
three perspectives— social, legal, and psychological. Our first panel
of witnesses could be best described as advocates. A testimonial to
the degree of interest which this issue has generated has been the
establishment of at least four national grandparents' rights organi-
zations. We are proud this morning to have the founders of three of
them with us today. These witnesses, who themselves are grand-
parents, will address the problems associated with the 42 State
statutes on this subject as well as the lack of judicial decisiveness.

Some of our witnesses have incurred enormous personal ex-
pense—as much as $60,000 in one instance— simply to acquire basic
visitation privileges with their grandchildren. An issue we must
raise today— what does a grandparent without financial resources
do— are they being denied equal protection under the law? Finally,
this first group of witnesses will offer their views on what role, if
any, the Federal Government should have in this area.

Our second group of witnesses are noted psychiatrists in this
field who will address the importance of grandparent and grand-
children relations, as well as problems which can ensue from ad-
versarial court battles. These witnesses will also discuss this issue
from the standpoint of what is in the child's best interest in award-
ing grandparent visitation privileges.

Our third and final group of witnesses are lawyers who will try
and tackle the complex legal issues before us today. The most fun-
damental of these is: Is there a Federal role in this area, and if so
what is it? Further, does the existing lack of uniformity among the
42 State laws on grandparent visitation impact adversely on the
implementation of these rights by the affected grandparents? Is
there a denial of equal protection under the law by virtue of exces-
sive costs which certain States require in order for a grandparent
to gain visitation privileges? Finally, when determining the legal
status of grandparent visitation privileges— how is "best interest of
the child' standard applied?

One of the most remarkable developments— that has occurred
since this hearing was announced several weeks ago — has been an
influx of calls and letters from across the Nation from grandpar-
ents and others concerned with this issue we will raise today. Here
is a folder of all of those letters, and the office has been besieged
with phone calls, and I expect that it will develop into an ava-

lanche as a result of these hearings. These letters — which total
more than 100 — address themselves to the major issues we will dis-
cuss today.

Many of those grandparents who wrote shared similar problems.
The diversity of State laws seemed to be a major problem. A den-
tist, from El Cajon, Calif., who has been involved in litigation for
2 ¥2 years to be granted the right to visit his 4-year-old grandson,
writes:

I know the situation is not too unlike hundreds of others in a changing world.
Families falling apart and little children losing contact with sometimes the only
stable relationship in their lives. There seems to be no coordination between our
States regarding this seriously overlooked problem. We worry that the court order
we have here in California would not be worth a thing if our grandson were taken
out of the State.

The costs involved in litigation was another common complaint.
A letter from grandparents in Fullerton, Calif., who have been
denied visitation privileges to visit their only granddaughter after
their daughter died in 1981 wrote:

We tried to get an attorney but he discouraged us by telling us it could cost up to
$10,000 and we could not be assured of any results. We do not have this kind of
money but whatever we have it will go to our granddaughter.

The son of a Lincoln Park, Mich, couple died in March 1977.
Since then the daughter-in-law has remarried and adopted their
grandson. They wrote:

We have been in and out of the courts — and spent thousands of dollars on lawyers
and still are not seeing our grandson.

The emotional strain of both, the lack of uniform laws and the
cost of litigation was evident in almost all of the letters. There was
a notable concern about the effect it was having on the children. A
grandmother from Lansing, Mich, wrote:

Our grandson is probably unaware of all our attempts to get him back. Gifts, let-
ters and cards have gone unacknowledged. To me, this is child abuse.

A grandmother from Wheeler, Wis. writes:

It took us 14 hard, long, and painful months to get to see our grandson after the
divorce. We couldn't even stand to go into stores and look at children's clothes. It
just hurt too much. Why should the grandchildren and grandparents pay for mis-
takes the parents make?

As I have stated before — our purpose today is to focus national
attention — if you will — launch a national debate on the issue of
grandparents and their visitation privileges to see their grandchil-
dren in the event of a marital dissolution.

Our other purpose is to listen carefully to testimony on recom-
mendations of experts and others concerned with this topic on the
delicate issue of which level of government should assume responsi-
bility for the enactment and enforcement of laws on behalf of
grandparent visitation. It is evident that State governments have
assumed some responsibility with 75 percent of them having en-
acted statutes. However, if there is in fact a Federal question in-
volved we would like to know about it and then proceed in the
usual bipartisan manner which characterizes our committee's
work.

The only recommendation I do offer is, in order to bring a sense
of uniformity to the 42 State laws which have been adopted, to

have the diversity-of-State-law issue be referred to the National
Conference of Commissioners on Uniform State Laws for their eval-
uation and ultimate action. This non-Federal Government entity
was established in 1892 and is vested with the responsibility to pro-
mote uniformity in State laws on all subjects where uniformity is
deemed desireable and practical.

Let me close my statement with a poem that was written about
an 82-year-old grandfather who has been denied the right to see his
only granddaughter, Kim.

Grandpa, can I see you?
Could you take me to the fair,
Would you read me a little story,
And tell me that you care.

Grandpa, would you walk with me?
Or hold me on your knee?
I wish that I could talk to you,
Grandpa, why can't it be?

Grandpa, do you love me?
Yes, I love you too.
I dream of us together,
Do dreams ever come true?

Grandpa, I keep praying
We'll be laughing very soon
And someday we 11 be singing
A simple little tune.

Grandpa, can I see you,

I know this isn't fair;

But things will soon be changing,

And we can be a pair.

Grandpa, we'll be together
Just wait a little while.
Grandpa, don't stop trying,
I want to see you smile.

— by Susan Vaughn.

I recognize the gentleman from New Jersey, Mr. Rinaldo.

STATEMENT OF REPRESENTATIVE MATTHEW J. RINALDO

Mr. Rinaldo. Thank you very much, Mr. Chairman.

I want to take this opportunity to commend Chairman Biaggi for
convening this hearing today, and also my distinguished colleague
from New Jersey, Congressman Hughes, for initiating this hearing.
I think the issue of visitation rights for grandparents and their
grandchildren is a national problem, and as such deserves this type
of national attention.

With our thoughts turning toward our families as the holidays
approach, we are reminded that grandparents and grandchildren
are indeed a vital connection. I was thinking as I was coming up to
the hearing this morning of my own family situation. My father is
retired now, just celebrated his 73d birthday. My mother does not
tell anybody her age, but it is close to that. I know that I have a
total of 10 nieces and nephews, and they just about live and exist
for those children. He is in perfect health, but he will drive from
Union, N.J. to Maryland to visit the grandchildren. He will call
them up, and that is what they spend most of their time doing and
they would rather do that than go on a vacation to Hawaii or any-
where in the world. I would just wonder what would ever happen

to them and to their Hves and their willingness to even live if
something happened where they were cut off and could not for one
reason or another visit their grandchildren.

I recognize the problem. I also recognize that it is a widespread
problem, and as a result of that at least four organizations have
been formed to aid grandparents and their grandchildren in their
quest to continue relationships threatened by death, divorce, or
other family upheaval.

I understand that Mr. and Mrs. Max Chasens of my home State
have founded a group called "Equal Rights for Grandparents." I
am pleased that they are here today and are going to testify and
tell us about their own personal struggle to see their grandchil-
dren.

As grandparents assert their rights, it is encouraging to note
that some progress has been made. According to an American Bar
Association survey, 40 States, including New Jersey, have enacted
laws to grant grandparents visitation rights under certain circum-
stances. Clearly, the States and the courts are beginning to recog-
nize the psychological and social benefits coming from protecting
and nurturing the relationships between grandparents and their
grandchildren.

In any judicial proceeding there are competing parties with com-
peting interests. Too often, in order to frustrate the award of a
State decree granting visitation rights, the child's custodian may
unilaterally remove the child across State lines. In order to deter
this type of thing, facilitate the enforcement of custody and visita-
tion decrees of sister States, and to promote secure and stable
family relationships for the child. Congress passed the Parental
Kidnaping Prevention Act of 1980. Now when a State's decree pro-
vides grandparents visitation rights, those rights are fully enforce-
able as a matter of Federal Law in the courts of any other State of
the Union, so long as the requirements of the act are met. This act
also authorizes the FBI to assist State law enforcement authorities
in the investigation of interstate child-stealing cases.

Mr. Chairman, I am hopeful that by your taking the lead, by the
initiative of Congressman Hughes in seeing to it that this hearing
was convened, we will be putting the spotlight on the problem
today. I am hopeful that our hearing will encourage enactment of
grandparents' visitation rights statutes in the minority of States
which do not have them. If it is appropriate for the House Aging
Committee to examine this issue, as it is, from the perspective of
the grandparent, perhaps it is equally appropriate for the newly
constituted House Select Committee on Children, Youth, and Fami-
lies to explore this problem from other perspectives when the 98th
Congress convenes next year.

Given the vast variations among existing State laws on this sub-
ject, I join you, Mr. Chairman, in urging that the National Confer-
ence of Commissioners on Uniform State Laws also consider the
issue. If it is appropriate, Mr. Chairman, perhaps we could send a
letter, this committee, to the National Conference of Commission-
ers requesting that they take action. At this point I would like to
request unanimous consent that we do that and have the letter
prepared by staff and available for signatures by as many members
of the committee as would be willing to sign it.

Mr. BiAGGi. You were not here, but clearly it was part of my tes-
timony that indicated that is exactly what we are going to do. That
is what I intend to do after the conclusion of this hearing.

Mr. RiNALDO. I want to commend you for that action, because I
certainly think it is appropriate, it is something long overdue.

I want to welcome the witnesses here this morning, and hope
that your testimony will lead to the type of results that we all
desire.

Thank you, Mr. Chairman.

Mr. BiAGGi. Thank you. Before I introduce my colleague, Mr.
Hughes, let me say that what we see happening here is an area of
neglect. It is really part of the aging problem, because the aged
have been neglected traditionally, and more and more we have
been focusing attention on their concerns. This is part of their con-
cerns, and we are just catching up to this facet of their lives. There
is no doubt in my mind that by having this hearing, focusing atten-
tion on this problem, working together and projecting it into the
spotlight so that it would be given its rightful place in the minds
and hearts of America, that there will be some response. It is
really an extension of the aging problem. We have been fortunate
so far in the progress we have made through the full committee
under the chairmanship of Claude Pepper. This committee has
been responsible for most of the Federal legislation that has re-
dounded to the benefit of the aging.

I would like to introduce my colleague from New Jersey, Mr.
Hughes. He has been a most valuable member of this committee,
and has expressed early interest in this problem.

STATEMENT OF REPRESENTATIVE WILLIAM J. HUGHES

Mr. Hughes. Thank you, Mr. Chairman.

Let me echo the sentiments of my distinguished colleague from
New Jersey and the ranking minority member of the full commit-
tee, in saying thank you for scheduling this hearing. I too think it
is a serious subject. I will make my remarks brief, because I know
we are anxious to hear the witnesses.

The heartbreaking difficulties encountered by grandparents who
attempt to secure the right to visit their grandchildren in the wake
of marital dissolution were recently brought to my attention by
Hon. Dolores Cooper, an assemblywoman from Atlantic County,
N.J., whose testimony, unfortunately, we will not have the privi-
lege of hearing this morning because business in New Jersey pre-
vents her from being with us. However, we do have two very distin-
guished Atlantic Countians, Mr. and Mrs. Max Chasens, who have
been involved with such a visitation case. I first learned of their
plight a number of months back after talking personally with Mr.
Chasens and seeing accounts of what occurred, and I became very
interested in seeing the focus of a hearing spotlighted on this par-
ticular problem.

The termination of a marriage, whether it be a result of death,
divorce, or separation, is a tragic event, especially if there are chil-
dren involved. Magnifying the sorrow of this situation by destroy-
ing the precious and unique relationship between children and
their grandparents is, I believe, something that should be avoided

if at all possible. At the same time, however, we must be sure to
observe the delicate balance that exists between the best interests
of the children, parents, and grandparents involved.

I am pleased that New Jersey is among the 38 States which now
have statutes granting grandparents the right to petition the
courts for reasonable visitation rights. I am concerned, however,
over the disparity among these States, and the lack of similar stat-
utes in the other 12 States.

I am confident that the distinguished witnesses we have here
today will provide us with answers on how to best address the com-
plex issues surrounding grandparents' visitation rights. I look for-
ward to hearing their testimony.

I might say in passing that I too know that my own mother
would be absolutely destroyed if she could not meet and love and
understand and see her grandchildren grow and prosper. In my 25
years of practicing law, I think one of the most disturbing things to
me was to see the breakdown in that relationship. It probably got
to me more than anj^hing else, because you could see the young
people suffer because of that lost relationship. So I look forward to
hearing the testimony. I have a statement that the Honorable Do-
lores Cooper has provided for us, and I would like permission to
insert that into the record.

Mr. BiAGGi. Without objection.

[The prepared statement of Hon. Dolores G. Cooper, assembly
woman. District of Atlantic City, N.J., follows:]

Prepared Statement of Dolores G. Cooper, Assemblywoman, District 2
(Atlantic), Atlantic City, N.J.

Honorable Mario Biaggi, and members of the Select Committee on Aging: I am
deeply grateful to all of you for giving me the opportunity to address you today,
through the efforts of our Congressman William J. Hughes, an elected official sensi-
tive not only to the needs of his constituents, but to all honorable people — in this
case, the grandparents of the United States who are being denied the greatest
reward of their golden years — the right to cherish and to love their grandchild or
children.

However, the speaker of the New Jersey Assembly has called the final session of
the legislature this morning, Thursday, making it totally impossible for me to be
with you this morning inasmuch some legislation affects Atlantic City, Atlantic
County was well as my co-sponsorship of several bills.

Therefore, I am requesting your permission to accept my humble testimony
through Max Chasens, the first grandparent in Atlantic County who alerted me,
more than two years ago, of this growing social problem, one which, obviously, legis-
lation, as it presently exists in 38 States, has not found a satisfactory solution and
must, as soon as possible, be guided by Federal guidelines issued to State legisla-
tures.

We are aware if the growing divorce rate, with statisticians telling us that by
1990, one out of every two marriages will terminate in divorce, or, a complicated
separation. Who bears the scars of this terrible statistic? Yes, a mother and or a
father, the ex-husband or ex-wife, to an extent, but it is the child of this unhappy
marriage. The grandparents — one, two, three or four persons who have given this
child, or children, pure, unadulterated love. In the many cases that I have re-
searched, I have found that the grandparent/ parents have extended the only emo-
tional stable relationship that the child experienced. Grandparents have become the
confidantes, the substitute parents in many instances, and offered the child the only
encouragement to look at life through normal eyes and emotions with love and com-
passion rather than the hatred and rancor experienced in the home.

Testimony has continued endlessly, and you have heard witnesses and presenta-
tions concerning the wretched experiences the grandparents have suffered at the
hands of these vindictive ex-daughters and sons-in-law.

Now I request, members of the Ck)mmittee on Aging, that you examine the laws of
the 38 States who have some guidelines in this direction, and consolidate these di-
luted, antiquated pablum-type laws and statutes into strong, meaningful guidelmes
protecting the innocent and injured. .. o. . • j- ■ i

My dream is for creation of Federal guidelines handed down to the btate judicial
system creating firm, enforceable guidelines not to keep grandparents in limbo, or
appearing constantly in court to explain their crime— the crime of wantmg to see
and touch a grandchilu, to love and to cherish.

I am not a grandparent at this time of my life. But I hope that God will grant me
that category some day. I have already shared the tears and heartaches of those
who have such an abundance of love to give— don't deprive them of this one remain-
ing factor in their life— the touch of the child, the sweetness of a kiss, the emotion
of sharing— the generation of a name—

From the State of New Jersey, I gladly accept any responsibility m enabling you
to make this dream a reality, and with wisdom, and God's help, show our love for
the grandparents of the United States. Thank you.

Mr. BiAGGi. Mr. Shumway.

STATEMENT OF REPRESENTATIVE NORMAN D. SHUMWAY

Mr. Shumway. Thank you, Mr. Chairman. I appreciate your con-
vening this hearing. It is a very timely subject and most appropri-
ate that we have an airing of it here in our Nation's Capital. I
would like to welcome each of the witnesses on this panel and the
panels that will follow and extend my appreciation for your being
available and presenting testimony to us here today.

Mr. Chairman, the American family is both aging and changing,
and I commend you and think it most important that we focus not
only on grandparents but on intergenerational families. I look for-
ward to working with you in the future, and I particularly would
like to express the appreciation that I feel for the role that my
home State of California has played in this subject. California has
been on the leading edge in terms of both statutory change and
case law in developing some innovations and new ideas on this sub-
ject. I hope that that particular process continues to unfold in Cali-
fornia as well as in other States across the Nation. Perhaps what
we do here today will be the impetus for that kind of action occur-
ring.

I would like again to express my appreciation to you, and ask
your permission to extend my full remarks in the record.

Mr. BiAGGi. Without objection, so ordered.

[The prepared statement of Representative Norman D. Shumway
follows:]

Prepared Statement of Representative Norman D. Shumway

Chairman Biaggi, I wish to commend you for convening today's hearing on Grand-
parents—The Other Victims of Divorce and Custody disputes. I want to welcome
each of today's witnesses to the subcommittee and extend to you my appreciation
for the enlightening testimony you will present today. Mr. Chairman, the American
family is both aging and changing, and I commend you for focusing not only on
grandparents but on inter-generational families. I look forward to working with you
on a responsive solution to the plight of grandparents and the future of the family.

One of today's witnesses. Dr. Kornhaber, has characterized grandparents as emo-
tional guardians of the young, as living ancestors who provide us with a sense of
history and commitment to family roots. Grandparents are valuable mentors for
teaching ethnic heritage, religious faith, and moral and cultural values to their

grandchildren. , . , . . , „ ,.

The pressures on today's extended family, such as the high incidence of divorce,
job transfers and economic conditions, often victimize the most vulnerable members
of society — children and grandparents.

Today the subcommittee will review judicial and legislative solutions to the prob-
lem of grandparent visitation rights. I trust that we will also look beyond legal in-
tervention into family situations and consider efforts that would promote a greater
public awareness of grandparenthood and inter-generational families. Hopefully, we
will also look at the value of psychological research and family counseling as an
alternative to judicial and legislative solutions. I trust that the subcommittee will
also consider the sjmaptoms to some of the major causes of this problem, such as the
rapid rise in the divorce rate in the past two decades and the erosion of not only the
extended family, but the "nuclear" family structure.

The problem with grandparent visitation rights occurs primarily in the event of
death, divorce or sepaiation of the parents. The rapid rise in the divorce rate during
the last decade, especially in families with young children, results in injustices to
the victims — old and young alike.

Before 1940, the divorce rate was approximately 2 per 1,000 in population. It
reached a historic level of 5.1 per 1,000 in 1978. There were 1.1 million divorces and
2.2 million marriages in that year. It is not surprising that if this rate of divorce
continues on a lifetime basis, the proportion of marriages ending in divorce may be
close to 40 percent.

The impact of divorce is significant: the number of children involved in divorce
tripled in two decades from 361,000 in 1956 to 1,117,000 in 1976.

The impact of the divorce rate has a great impact on the basic family unit. Since
1960, there has been a far more rapid increase in the number of 1 parent families
than two parent families. By 1978, 19 percent of all families with sons and daugh-
ters under 18 years of age were maintained by 1 parent, 17 percent by the mother
and 2 percent by the father.

I trust that the subcommittee will look at these demographic trends as they relate
to the problems that grandparents are experiencing as family members.

Today we will hear testimony on legislative and judicial remedies to the problem.
The State of California has had several significant court cases based upon common
law as well as State statutory law that apply to grandparents visitation rights.

California was one of the first six States to enact statutes providing the legal
means for grandparents to bring suit for visitation privileges. Currently, California
law allows trial courts to award visitation to interested parties (including grandpar-
ents) if it is in the best interests of the child. California law also specifically allows
grandparents and other relatives to seek visitation rights in the event of death of
the parents.

Currently, 40 States have statutes conferring grandparents standing to seek court
visitation rights under certain circumstances.

There is also great judicial awareness of the importance of existing associations
and inter-generational contacts as in the best interest of the child.

In California, a series of cases have been decided on several emergent issues, such
as the effect of adoption on grandparent visitation privileges, the impacts of animos-
ity between the custodian and the grandparent seeking visitation, and the health
and best interest of the child.

Mr. Chairman, I look forward to today's hearing and testimony from grandpar-
ents themselves, who will give us a first hand account of their experiences with this
important issue. I look forward to working with Chairman Biaggi in developing an
appropriate solution to the plight of grandparents in our society.

Mr. Biaggi. The gentlelady from New York.

STATEMENT OF REPRESENTATIVE GERALDINE A. FERRARO

Ms. Ferraro. I want to congratulate you for holding the hearing.
When I had my children I thought I had achieved the ultimate as
far as family life was concerned, until my mother said wait until
you are a grandmother. I do not want to hurry that, but I am wait-
ing and I am looking forward to that day. We have talked about
what occurs when grandparents lose the right of visitation and
what effect that has on the grandparents. I received a letter from a
constituent indicating what happens to the children. I would like to
read to you one paragraph:

ance and cohesiveness as possible, and grandparents who nurture and give of their
experience and wisdom are a vital factor.

Families are an integral part of society's salvation.

Sincerely yours, Edith L. and Henry W. Engel, grandparents of four— two we are
devoted to and loved by; two we are fighting for visitation rights.

They bring the approach to the problem from the viewpoint of
the needs of the child, and I think that is something that we must
look carefully at. When families are disrupted, that is when chil-
dren need that warmth and affection and understanding that
grandparents can so readily provide.

I too congratulate you on these hearings, Mr. Chairman, and I
look forward to hearing from our witnesses, particularly our wit-
nesses from Queens County, N.Y.

[The letter follows:]

December 12, 1982.

Congresswoman Geraldine A. Ferraro,
House of Representatives,
Washington, D.C.

Dear Congresswoman Ferraro: May we urge you to address Congressman Mario
Biaggi with respect to his serious consideration on Thursday, December 16, of the
vit^ need for legislation on a Federal basis to insure Visitation Rights for grandpar-
ents.

In so many cases with divorced children unforeseen hostility with one of the par-
ents destroys family relationships and prevents needed contact and supportive
warmth. Particularly at that time of disruptiveness children require as much reas-
surance of cohesiveness as possible, and grandparents who nurture etnd give of their
experience and wisdom are a vital factor.

Families are an integral part of society's salvation.
Sincerely yours,

Edith L. and Henry W. Engel.

Grandparents of four — two we are devoted to and loved by; two we are fighting
for visitation rights.

Mr. Biaggi. Mr. Lantos.

STATEMENT OF REPRESENTATIVE TOM LANTOS

Mr. Lantos. First, Mr. Chairman, allow me to make a personal
observation. I have watched and participated in many congression-
al hearings over the last 30 years, but this is the first time I saw
the chairman of the committee conducting the hearing fighting
back his tears as he finished testimony. And I noticed that several
people at the witness stand were doing the same. So was L

We are dealing with an issue of monumental importance. Grand-
parents in many instances are the only stable unit in a family. And
while the hearing is focused on grandparents and their rights,
what we are really dealing with fundamentally is the grandchild,
because my approach to this issue, which is an issue I have been
deeply interested in for many years, is not from the point of view
of the grandparent. All of us who are grandparents have had
enough anguish and suffering in our lives, so we can take some
more. But the injustice, the unfairness, the outrage of denying
little children the love, the affection, the care, the concern of the
grandparent is something that even a society such as ours — where
the family has disintegrated to such an extent — should not allow.

Usually it is customary at the beginning of a hearing to be or to
pretend to be open-minded. Usually it is customary to say that we
want to hear and see all the evidence before we make up our

minds. Well, this Member of Congress has his mind made up.
There is not the slightest doubt in my mind, Mr. Chairman, that
strong Federal legislation is called for. I intend to pursue strong
Federal legislation, and I intend to make that strong Federal legis-
lation my top legislative priority in the upcoming session.

We are dealing with anguish and suffering ranging from the tin-
iest of grandchildren to the 82-year-old grandfather whose poem
you read, and if this body is not prepared to address that issue,
then our preoccupation with the nuclear freeze or the MX missile
or the 5-cent gasoline tax will sound very hollow indeed.

Thank you very much.

Mr. BiAGGi. Thank you, Mr. Lantos.

We have the panel consisting of grandparents, and this morning
one of our colleagues, a very outspoken and very concerned
Member, Barbara Mikulski, is recognized.

STATEMENT OF REPRESENTATIVE BARBARA A. MIKULSKI

Ms. Mikulski. Thank you, Mr. Chairman. I am here to introduce
one of my constituents who has been a leader in Maryland in orga-
nizing for legislative change to bring about grandparent visitation
rights. In Maryland, women being outspoken is not limited to
Members of Congress, but certainly more so at the grassroots con-
stituency.

However, Mr. Chairman, I would like to thank you and this com-
mittee for convening this hearing and once again providing a na-
tional forum to people who have either been denied it or who have
had to fight to get it.

If one takes a look at the men and women at the table today, you
would see that they have probably had eight quarts of water wait-
ing to talk. Are they nervous about speaking today? They are. Why
are they nervous? Because these are people who are strong organiz-
ers and accomplished in their right. It is because they have been
used to running into rejection, hostility, and the trivialization of
their issue. They are so used to being in a negative environment
that they think they are going to be grilled like ethnic hot dogs
today. I have been telling them what a terrific committee this is,
Mr. Chairman, your leadership and Mr. Hughes and others. The
committee should be thanked enthusiastically for providing a
forum for my constituents to tell their stories in their way.

Senator Rosalie Abrams, our majority leader, introduced legisla-
tion in Maryland in 1975 to deal with the issue. It was decided it
was not as important as dealing with banks and land development
and providing more and more opportunities for condo conversion. It
was ignored as one of those silly family issues that we do not have
to pay any attention to. But this is one grandmother who took her
personal anguish and turned it into a grassroots action in Mary-
land. When I asked her what was the name of your group, she said,
"I did not have a group, all I had was me, and I stood alone until
the petitions, the buses started rolling to our State capital." This is
the woman who singlehanded organized the grandparents

Mrs. HiGHTO. With my husband.

Ms. Mikulski. With her husband. As we know, every good
woman has a good man behind her.

Mr. BiAGGi. I thought the more contemporary view was that the
man was beside her.

Ms. MiKULSKi. When we get the equal rights amendment, Mr.
Chairman. That is the story of Mrs. Highto. I am pleased to intro-
duce her to the Members of the Congress here today, because I
know she is representative of many others. My own support for
this legislation is just right there. When my mother had her triple
b3TDass this summer and the family pitched in, it was her grand-
children from age 5 to 14 who were ready to move in with granny,
help with the housework and do the errands. Whether you were 5
and could dust the baseboards or 14 and could run the errands, we
were there.

Not long ago my house was broken into. It was not because they
took the clock-radio or the TV that I was upset. They took things
my grandfather had given me. What my grandfather gave me was
more than a few coins. He gave me a sense of identity. He told me
the stories of Poland and where we had come from. He taught
where we had come from and what this country meant.

As a youngster I was working with my grandmother out of our
ethnic baker shop. When I ran for Congress they said if you are
half as good as your grandmother's cookies, you will be an excel-
lent Congresswoman.

I treasure the relationship I had with my grandparents, and I
can assure Mr. Rinaldo and other members of the committee, I
hope to be on the Select Committee on Children, and then intend
to pick this up from the standpoint of the children. But I can only
say that you have my wholehearted support, and I know Mrs.
Highto here will blast the networks right off because of what she
has to say.

Thank you very much, and I look forward to hearing the testimo-
ny.

Mr. BiAGGi. Mrs. Highto.

PANEL 1— SOCIAL ISSUES, CONSISTING OF GERRIE HIGHTO, BAL-
TIMORE, MD., MR. AND MRS. MAX CHASENS, FOUNDERS, EQUAL
RIGHTS FOR GRANDPARENTS, MR. AND MRS. LEE SUMPTER,
FOUNDERS, GRANDPARENTS/CHILDREN'S RIGHTS, INC., HAS-
LETT, MICH., MR. AND MRS. HARVEY KUDLER, FLUSHING, N.Y.,
AND MRS. HENRY ENGLE, LARCHMONT, N.Y.

STATEMENT OF GERRIE HIGHTO

Mrs. Highto. Thank you very much.

Honorable chairman and honorable members of the Select Com-
mittee on Aging, my name is Gerrie Highto. I am from Baltimore,
Md. I am here to testify in regard to the areas of domestic human
relations concerning the aging and the issue of visitation rights for
grandparents.

The issue of grandparents' rights to visit with their grandchil-
dren is one issue that has, unfortunately, been totally neglected.
With the divorce rates exceeding 50 percent and where grandchil-
dren are involved, some grandparents are completely shunted
aside. Unfortunately, I know too many grandparents who are in
this position today, simply because of the hostilities of the divorc-
ing couple who use the children as pawns, in an effort to get even

with each other. This issue exists also among grandparents whose
natural children, whether they be divorced or not, become angry
with their own parents and they, too, will spitefully withhold the
children from seeing their grandparents. Another situation which
involves grandparents, and this happens quite often, is the untime-
ly death or disappearance of the noncustodial parent. When this
happens, the custodial parent may, for whatever reason, withhold
the grandchildren from seeing their grandparents, who have abso-
lutely no rights whatsoever, and completely destroying the poor
grandparents.

The churches, synagogues, schools, family and children services
are keenly aware of this matter, but the only thing they can offer,
depending of course on the State, is compassion for the grandpar-
ents. Is compassion to take the place of your feelings, your roots,
the age-old dream of begging God to allow you to live your remain-
ing years with your grandchildren? Some States have passed legis-
lation allowing grandparents to petition the courts for visitation
rights, and the decision is left to the discretion of the presiding
judge. The Maryland State Legislature passed senate bill 333 spon-
sored by Hon. Senator Rosalie Abrams, who is the majority leader
in the Maryland State Senate. The bill really is not strong enough.
It should be much stronger if it is to be of any help whatsoever and
not just to pacify.

Many people who are aware of the unique relationship between
grandparents and grandchildren are trying desperately to involve
them in everyday activities. Just recently my grandson s school ini-
tiated, for the first time, a grandparents' day, a day devoted pri-
marily to the grandparents and grandchildren. The faculty were
completely overwhelmed by the grandparents, who came out in
droves, far exceeding their greatest expectations. It was a marvel-
ous day. Both grandparents and grandchildren were so excited that
it brought tears to the eyes of the participants, young and old
alike.

I have found that whichever parent has assumed custody, in
many cases, the noncustodial grandparents are often given a most
difficult time. Unless you have experienced this personally or if it
happens in one's family you cannot possibly know the heartaches
caused by the cruelty, hatred, and vengeance manifested against
grandparents by some custodial parents. It is unbelievable. This
became an issue with me almost as a preventative one, while my
daughter was going through a divorce. Also, a very close friend of
mine and her husband — would you believe that they had to hide in
bushes and foliage near the school that their granddaughter at-
tended just so they could see her. They were not allowed to visit or
even speak to her.

My involvement began when I read a newspaper article on the
subject, which was very apropos. I immediately called the State leg-
islature in Annapolis in an effort to find what laws the State of
Maryland had regarding this situation. To my dismay I found that
there was absolutely nothing on the books relating to grandpar-
ents. I did find that Hon. Senator Abrams had been sponsoring a
grandparents' bill since 1975, and every year it was brushed aside
as not important enough. I then spoke to the senator and offered
her my assistance. With the aid of my husband, family, and friends

we then took to the road. We proceeded to get petitions on a
statewide basis, which I must admit was a very difficult job, espe-
cially as a daily routine. Fortunately, when people realized what
was involved, they not only stood and waited to sign, but offered
help of all kinds. Word spread fast and it was picked up by the
newspapers and magazines in Baltimore City. The phone kept ring-
ing continually with offerings to help. A restaurant called and
asked us to send them petitions for their customers to sign. On the
day of the hearing of this bill my husband and I rented buses to
transport people to Annapolis. They filled so quickly that we had a
cavalcade of cars follow us.

Mr. BiAGGi. Miss Highto, forgive me for interrupting, but those
bells control our lives.

Mrs. Highto. I thought I was getting the gong.

Mr. BiAGGi. No. The second ringing of those bells means we do
not have much time, so we will have a temporary recess. We will
resume as soon as we get back. We want to hear what you have to
say, although I read what you have to say at 3 o'clock this morn-
ing.

[Recess.]

Mr. BiAGGi. The hearing is called to order.

Mrs. Highto.

Mrs. Highto. I left off where I said that a restaurant had called
us and asked us to send them petitions for their customers to sign.
I found out later that they too were in the same position. Every-
time we received several hundred signatures, they were Xeroxed
and taken to every delegate and senator in Annapolis. It got to the
point where I walked down that hall, I heard, "Oh, no."

At this stage of the game the State of Maryland had no laws
which gave grandparents any legal or moral rights, and absolutely
no recourse should the custodial parent refuse to allow them to see
or even to speak to their grandchildren. I can assure you that the
effect of this upon grandparents is complete devastation. I can
assure you that you cannot imagine what effect that this would
have and does have on a young child, especially if the child has
spent a close loving relationship with his or her grandparents.
What does a 5-year-old child think when he is suddenly cut off, as
you sever an umbilical cord, from the most unselfish love he will
ever know?

I can think of two of the most difficult and heartrending re-
marks. How would you feel if your grandchild looked up at you and
said, "Grandma, why can't I sleep at your house anymore?" What
can you say to this loving child after he has spent practically half
of his life at your house? Then after a difficult time trying to
answer, he bursts into tears and yells, "Nobody cares about me." I
beg of you, is it not traumatic enough for a young child to be sepa-
rated from one of his parents without shocking him further by
alienating him from the unselfish love of his grandparents whom
he has loved all his short life, thus giving him the feeling that no
one cares for him. The frustrations of we grandparents are only
overshadowed by the terrible injustices being done to children all
over this country.

We almost faced this tragedy along with countless other grand-
parents and their grandchildren, who really need each other. How-

ever, as I stated earlier, Hon. State Senator Abrams, with our help,
did manage to get the bill passed in the State of Maryland. As of
now I understand that about 40 States have also passed some form
of grandparents' visitation rights bill. I have no idea what these
other States' bills contain, but I do think that if 40 States have
passed a bill of this type, then the need must be real and on the
ascension.

I believe a uniform Federal law should be passed protecting all
grandparents and their grandchildren regardless of the reasons
that brought about their children's separation or divorce. As a gen-
eral rule, grandparents are the last people who want to see their
children divorced, aiid suffer the most when it does happen.

I am well aware that many attorneys and judges are afraid that
these bills will overburden the courts. If this is so, it will only
prove that something must be done. If this issue really gets out of
hand, then I strongly suggest that a committee be set up for this
purpose, and since I have had firsthand knowledge of the situation,
I would be delighted to serve on such a committee.

This bill gives the aged their moral rights and the children the
unconditional love of their grandparents. Please, keep one thing in
mind, we have chosen you to be our lawmakers, and we live by the
laws you pass. In a sense, we are your suppliants and you are our
conscience. If we cannot come to you for succor, then to whom shall
we go? We are not radicals. We do not advocate radical law
changes. We are human beings in the twilight of our years seeking
what little happiness we garner from our grandchildren.

My personal views on the subject may be redundant to some of
the above, but, nevertheless, I would like to say that we do not
wish to overburden the courts but to produce a generation of chil-
dren who will have real roots and stability. We provide a support
system and another means of identification when such a trauma
hits. We as grandparents give the gift of self-worth, the gift of
caring, the important gift of heritage, the gift of special memories,
the gift of sharing experiences, and last but by no means least, the
gift of love and acceptance. A child needs a sense of continuity, es-
pecially with the divorce rate being upward of 50 percent in this
country. Let us not forget that we are their roots and do what we
can to protect them. Remember, for whatever reason a marriage
terminates, there is no such thing as an ex-grandparent.

We have already asked God for his help, now we ask you for
yours. Remember, where would we all be if it were not for our own
grandparents? There is no love that can replace the very special
love of the grandparent and the grandchild, and how sad it is for
the grandchild who never knew or does not remember his grand-
parents.

I thank you for your most kind attention.

Mr. BiAGGi. Mr. Hughes.

Mr. Hughes. Mr. Chairman, I am pleased to introduce and wel-
come to the committee my constituents, Mr. and Mrs. Max Cha-
sens, who have had a terrible, heartrending experience in their
own right. They have actively pursued visitation rights through
litigation. They have founded an organization. Equal Rights for
Grandparents, to try to do something about what is indeed a na-
tional problem. I am privileged to welcome them here today.

Mr. Chasens.

STATEMENT OF MR. AND MRS. MAX CHASENS

Mr. Chasens. Mr. Chairman, I know all the attention is well
meaning. Our tale of woe is no different from any other grandpar-
ent. We lost our daughter, and we do not want to lose our grand-
daughter.

I submit in evidence a letter, rather a newspaper clipping, that
Alice Eckerson wrote. I think it tells the whole story, and I would
like to

Mr. Hughes. Mr. Chairman, it is an article written by one of our
fine reporters for our newspaper circulating in the south Jersey
area. I ask that it be included in the record.

[The clipping follows:]

[From the Press, (Atlantic City) Apr. 13, 1982]

Grandparents Fight For Visting Rights

(By Alice Eckerson)

Courtroom B, 10 a.m.: Lawyers, judge, and litigants are locked in an emotional
battle over a 7-year-old child. The plaintiff wants to see the child; the defendant,
who has custody, says no.

But this is not a custody battle between parents. The plaintiffs in this case are the
child's grandparents. Like thousands of other grandparents across the country, they
are not allowed to see their grandchild. Unlike most, however, they are fighting
that decision in court.

Max Chasens of Margate is such a grandparent. The retired businessman spent
seven years in Atlantic County courts and more than $18,000 to get the right to see
the child of his daughter, Viclu, who died eight years ago.

"We lost our daughter; we didn't want to lose our grandaughter, too," said Cha-
sens who filed suit in 1975 after his former son-in-law refused him permission to see
his granddaughter. After seven years of interim orders for visitation and other court
actions, the Chasens were granted the right to see their granddaughter, now 10.

But Chasens is not happy with the decision because it does not set specific times
for visits. And he thinks it is ridiculous that a grandparent should have to spend
$18,000 to be allowed to see a grandchild.

As a result, he founded an organization. Equal Rights for Grandparents (7408
Ventnor Ave., Margate, 08402), to lobby for laws more favorable to grandparents
and to help others who have been denied the right to see a grandchild.

"This is everybody's cause, not just mine," he says. "Not many older people can
afford the luxury of going to court like I did."

Like Chasens, angry grandparents in other areas have united in such groups as
Grandparents Anonymous, Grandparents-Childrens Rights, the Society for Grand-
parents and the Foundation for Grandparenting. Like Chasens, most activists think
there should be a uniform national law that spells out specific grandparent visita-
tion rights.

Becoming a grandparent is an honored tradition that Superior Court Assignment
Judge Philip A. Gruccio calls "a blessing." When the expected relationship is imped-
ed by circumstance or animosity, however, grandparents had no recourse until re-
cently when they began turning to the courts.

"We have seen an increasing number of grandparents (coming to court) either be-
cause of divorce or the death of a parent," Gruccio says. "Generally, they have
rights and (can have) visitations."

Pity the poor judge, however, who Solomon-like, must carve up a child's time be-
tween warring factions that have difficulty passing a civil word between them. The
best solution, according to District Ck)urt Judge Richard Williams who heard Cha-
sens' suit, is one worked out not by the judge but by the litigants.

"When the parents and grandparents fight . . . basically it is the child who gets
hurt," he said. "The best were can do is choose the course that is least detrimental
to the child."

That many older Americans are strangers to their grandchildren is undisputed.
Often the reason is distance; sometimes it is lifestyle. The primary cause for es-

trangement between the generations, however, is divorce and death of a natural
parent.

The reasons for such decisions vary from honest disagreement about the grand-
parent's role or behavior to bitterness and mutual dislike. Whatever the reason, the
results can be tragic both for the grandparents and the child who psychologists say,
are better off spending time with a grandparent.

"Something terrific happens between a grandparent and grandkid," says Arthur
Kornhaber, a New York psychiatrist who wrote "Grandparents/Grandchildren, The
Vital Connection." "Grandparents add another dimension to their grandchildren's
lives."

Grandparents give their grandchildren unadulterated doses of love and care
which they do not have to earn — a developmental bonus that should not be under-
rated, Kornhaber says in the book. The good flows two ways, he says, because the
relationship makes grandparents feel loved and needed when society and their own
children may no longer need them.

The doctor feels so strongly that the older and younger generations should be to-
gether that he sometimes testifies in court for grandparents suing for visitation
rights.

"Grandparents and grandchildren have a specific bond between them; is second
only to the emotional bond between parent and child." he says. And no child should
have to choose between parents and grandparents.

"Optimally, grandparents and children should have free access to one another
and should live nearby," he says.

He recommends that families who cannot work together get a minimum of 15
hours of joint counseling. Kornhaber founded the Foundation for Grandparenting
(R.R. 1 Waccabuc, South Salem N.Y. 10590, 914-736-5478).

When grandparents are denied access to their grandchildren, the solution, in-
creasingly, is the courts. No one thinks it's a good solution.

As one grandfather put it: "How do you regulate love; it's impossible."

However, a grandparents' "right" varies from state to state and often requires
money, time and tenacity to enforce — something the reformers want to eliminate.
Chasens says he spent more than $18,000; another grandfather says he spent $6,000.

In New Jersey, state law grants visitation rights to the grandparents of a minor
child whose parent or parents are deceased, divorced or separated. However, that
law, statute 9:2-7.1, gives the granting of that "right" to the judge who is instructed
to make that decision "as the best interests of the child may require." This does not
mean the best interests of the grandparent or parent.

Still, what's "best for the child?"

Everyone has a different idea. The dispute may be sincere or may be prompted by
dislike and distrust between the generations.

For instance, a mother with custody may deny her ex-husband's parents permis-
sion to see their grandchildren because she disapproves of their religion, their
morals or their attitudes. Or she may want revenge for real or imagined insults by
the parents or her former husband.

In another case, a widower who remarries may choose to cut all ties with the nat-
ural mother's family. A step-parent who adopts a child may resent reminders of the
natural parent. A father may honestly think the grandparents are a poor influence
on the child.

Paul D'Amato, an Atlgmtic City attorney, has sympathy for the judges who, in the
face of rancor and disagreement, must resolve the conflicts.

"They realize that no matter what happens, no one is going to be happy," he says.
"If the child or children are mature enough that they can express an opinion, the
judge will (interview them before deciding). '

Because the courts often decide visitation with grandparents is good for the child
despite the objection of a natural surviving parent, the question becomes how much
visitation.

"A couple times a week, overnight, a couple times a month? How much is
enough? I believe a grandparent should have an active role in the life of a child,"
D'Amato says from the view of his Italian-American heritage. ". . . but not everyone
agrees with that philosophy. It's a very difficult job that a judge has to determine
the balancing."

More than 40 states now have laws giving grandparents specific rights that vary
from visitation in divorce cases to visitation with the children of a deceased child.
Some extend the visitation right to other relatives. In some states the law makes it
clear that adoption does not terminate a grandparent's right to visitation.

Frequently, only the grandparents who were closest to their grandchildren and,
therefore, have the most to lose, invoke the law when they are denied access to

their grandchildren. But, according to Lee Sumpter of Michigan who founded
Grandparents-Children's Rights Inc., (5728 Bayonne Ave., Haslett, Mich., 48840,
517-339-8663) many grandparents are afraid to come out of the closet.

"They are afraid to make waves," he says, "because if they do, they may be
denied visitation rights altogether."

Others, he says, are ashamed.

"They think they are the only people who have the problem."

Often, these are the grandparents who cared for their grandchildren for months
or years before a natural mother or father reasserted parental rights and cut off the
grandparents relationship with the child, Sumpter says.

"Sometimes, it's a live-in girlfriend or boyfriend who denies visitation. . . . Some-
times, it's because of a custody fight between parents ... or because of a divorce. . . .
or they don't let you because somebody looks crosseyed at somebody else."

Whatever the reasons, the consequences are endured by grandparent and grand-
child alike.

"It is slow torture (not being able to see a grandchild)," Chasens says. "Nobody
knows what it's like. Something should be done for all grandparents."

Sumpter concedes there are some grandparents who should not be allowed to see
their grandchildren.

"But most of them are more than worthy," he says. Kornhaber says dislike be-
tween grandparent and parent is not a valid reason; only grandparents who are
mentally ill or very physically ill should be kept from their grandchildren.

With more and more children being raised in single-parent or step-parent fami-
lies, the bond between the generations should be encouraged, say the activists for
grandparent rights. Grandparents and grandchildren, they say, have ever3i;hing to
gain by being together.

Mr. Chasens. Nobody makes you a grandparent. You have paid
your dues to society. When asked in court, we have gone through
so many pages of deposition, I want to impress you, I have dragged
this thing from one room to the other, and here it is, almost 15
pounds of deposition, court orders. We have been in and out of
court, and it is heartache and aggravation, and has deprived us of
the most precious thing of our lives, our grandchild and visitation
rights.

We have been to Judge Francis, and we had to go there because
of a letter sent to us by my ex-son-in-law, who remarried and took
it upon himself to restrict us as far as visitation rights are con-
cerned. We do not know why. However, we had to go to court, and
I feel sorry for the people in New Jersey, the visitation rights are
very, very limited in New Jersey. In fact they are third-rate, and
we would like to see them updated or something done nationally.

Judge Francis in his infinite wisdom saw we needed visitation
rights and he recognized the need for that, and he gave us the first
Sunday of every month and a telephone call. We got the child from
10 in the morning until 7 o'clock at night. We had to go back in
court, and part of the deposition, they violated the court order. We
went in front of Judge Grucio, a family-oriented man who under-
stood our plight, and he said there is no evidence where the child is
unhappy with her grandparents. Instead of fining them monetarily,
I do not see why the child cannot visit with the Chasens from 4 to
7:30, and also the first Sunday of every month on a flexible basis.
That would be on Wednesday, and if this continued, fine. This con-
tinued for 3y2 years, and this was pendente lite and the trial came
up

Mrs. Chasens. It was December and January. It was finished
January.

Mr. Chasens. I can say unequivocally, and I have stated in my
articles, if you are in front of a compassionate judge who under-

_ -— 19

stands your plight, I do not care, you can have a young clerk in
there pleading your case, you will win. I could have had Louis
Nizer, F. Lee Bailey, Mr. Garrison, and I went in front of a young
judge, Richard Williams, and he did not understand our situation.
He could not hang his hat on anything in the New Jersey law. All
the pleadings and animosities that went on between us and the ex-
son-in-law and the new mother, it is ridiculous.

In deposition my attorney came up and said, "What is your feel-
ing, Mr. Baylon, as far as the Chasens are concerned? You said in
1976 you did not care whether they live or die." It did not bother
the judge. On deposition again he said, "How do you feel about
them today." My ex-son-in-law said, "If I saw their names in an
obituary column it would not bother me."

Now, you cannot use a child as chattel. First and foremost, we
must be gentleman and ladies, law-abiding citizens, honest, sincere,
with the utmost respect for human dignities. Otherwise you cannot
be a judge. I served in the Army. I took my orders, but if this is
what our courts do and this is what we have to go through as
grandparents, the fabric of our society is going to decay. It seems it
is good against evil, and evil prevails. We have to go to court time
and time again. It is not right.

I feel sorry for those people who cannot afford the money to
squander for courts and court orders. We could have made an
appeal, $8,000 more. Who in the United States, who in this country
would challenge people, and I am sure people of lesser means love
their grandchildren almost as much as we do. The cruelty that we
went through and the humiliation is a sin against God and coun-
try. I can see it no other way.

It is mental cruelty, child abuse, all these things have been rep-
etitions. The chairman stated most of them. The other people on
the panel will give you the same song, it is cruel. But the worst
part of it is this is what your life is about. I have been in business,
lost money and made money that rightfully belongs to me. I should
not have to go to court and be deprived of my bloodline. We are
victims of the feelings and emotions of one judge against another.
That is why we are here today, to solve this problem.

We pray we set an example here for all grandparents. Every
time a child is born, so is a grandparent. There is no denying that
she loves us and we love her. It is part of our heritage.

I made a chart. I asked what is your idea of a grandparent.
When you are a parent it is 80 percent work and 20 percent pleas-
ure. When you finally achieve the blessing of being a grandparent,
it is a blessing, but to be a great-grandparent is a miracle.

My mother-in-law was 81, passed away recently, could not have
the pleasure of seeing her great-granddaughter. Now that is cruel.
You can do many things, but the fact that you have something that
you cherish and you see and it reflects in your life and your being,
you should not be deprived of it. We represent all grandparents
and are making a plea on their behalf. It is a moving subject. I do
not know how I could empty my heart out to you people anymore.
It just takes a judge with kindness, consideration, that is all you
need. Ninety-nine percent of the people agree yes, I never heard of
anything like this. And as I say to you, we do not have a patent on
brains, I do not think you have, but somewhere, somehow, some-

body has a better solution than 15 pounds of deposition, $18,000,
court costs, aggravation — you do not know what it means. Every
time we had to go on a court order, the child was supposed to be
there on Wednesday. If I saw her away from home at school, we
were punished. The child was instructed to run away. The child is
happy with us. I am making this appeal on behalf of all grandpar-
ents. We are not selfish. It is 8 years of aggravation, we advanced
backwards because of the Jersey law. God bless you in your efforts.

Mr. BiAGGi. Once again we have a short recess. I tell you, Mr.
Chasens, we are aware. I think Mr. Lantos said it clearly. We are
not here with open minds in a sense, we are here to find a solution.
We know the problem. I will tell you this, I have been here 14
years, and this is the most emotionally strenuous hearing that I
have ever participated in, and I just do not look forward to hearing
the rest of the testimony, frankly. I will be here, but I do not look
forward to it.

Mr. Chasens. May I apologize?

Mr. BiAGGi. No need to apologize.

Mr. Chasens. If I have said anything

Mr. BiAGGi. You do not have to apologize. You said it most elo-
quently and most impressively.

[Recess.]

Mr. BiAGGi. Mr. and Mrs. Lee Sumpter.

STATEMENT OF MR. AND MRS. LEE SUMPTER

Mr. Sumpter. Mr. Chairman, members of the committee, we
deeply appreciate the honor you have given us today. I have tried
to answer the information that was given to us in a letter and
avoided repeating what we sent to you beforehand, so there will
not be much repetition here.

Grandparents — Children's Rights, Inc. was incorporated on July
8, 1981, by Lee and Lucile Sumpter, and an interested grandmother
who does not have a visitation problem. It is a nonprofit Michigan
corporation.

Its goals are to seek adequate laws to protect the visitation rights
of grandparents and children in every State, and to organize active
contact groups in each State to work for a national children's
rights law.

It gathers information to share with concerned grandparents and
others in the 50 States. To date we have received 844 letters or
telephone calls from 48 States. One grandmother telephoned from
Ontario, Canada, and a father wrote from Venezuela.

There are no rules or dues involved, and we are usually available
24 hours every day.

We have been contacted by 42 organizations, television networks,
radio stations, local and national newspapers and magazines.

The Family Weekly article, "Visitation Rights for Grandpar-
ents," written by Roslyn Kramer and Dolores Walker that was
published in the western States on November 29, 1981, and again
in the remaining States on December 27, 1981, caused us to receive
652 letters and telephone calls.

I will divert to the map here. It seems everybody wants to know
what it is all about. I started that because of the Family Weekly

article and as time went on I added more pins to represent the
number of letters we have received from other grandparents not
connected necessarily with the article, and there are 844-some-odd
pins in that map. As of the Family Weekly article, California led
the pack with about 70 letters, and Michigan was second. I do not
have all the pins in the map that indicate the number of grandpar-
ents who have a problem from Michigan, because there really
would not be enough room for the map. There are about 200 of
them. I wanted to apologize to Mr. Hughes because I had to put
him out in the Atlantic Ocean. New Jersey was not big enough to
represent everyone.

The blue pins indicate States who do not have visitation laws, in-
cluding Washington, D.C., right here.

I have just been handed a document from the Family Law Re-
porter representative who says that five more States have enacted
laws of some kind, so that makes 45 States who have laws, and 7
who do not. No, five who do not. I will continue with my testimony
here.

Thousands of children have been placed in the care of paternal
or maternal grandparents from x number of months to x number
of years by parents who could not look after their children for
many reasons. The children and their grandparents develop a close
and loving relationship.

One form of abuse is when these children are suddenly uprooted
from a secure environment and they are placed in a strange and
insecure situation. They are almost immediately prohibited from
associating with their grandparents in any way. The grandparents
have reached a point in their lives where the denial of seeing a
grandchild is an emotional trauma. It is usually unexpected, unex-
plained, and indefensible. The children are confused because they
do not understand why they cannot see or talk to their grandpar-
ents. They develop mental and emotional problems because they
cannot fight back, and they have no one to defend them. There is
no place for a young child to go to for help.

Grandparents can readily detect child abuse, and they could pre-
vent much of it if social service agencies and child abuse centers
would respect their reports. Courts habitually place abused chil-
dren in foster homes rather than with grandparents with whom
the children desire to live. The courts usually claim that the grand-
parents are too old to look after the children, yet these same grand-
parents were not too old to babysit for free for years.

The denial of visitation or token visitation with humiliating limi-
tations destroys all semblance of family life. All relatives are af-
fected— parents, children, grandparents, aunts, uncles, cousins, and
even close friends. It affects your mental processes, health, and
ability to function normally. Unless you have personally experi-
enced this heartbreaking phenomenon, you cannot understand or
comprehend the extent of the damage it causes. Peace must begin
with people — children are people. What is their adult generation
going to be like when child abuse is at an epidemic level now?

Any involved grandparent will gladly tell you their problem in a
private conversation. If many of them go public there are several
things that might happen:

One, it will harm their litigation if they are fortunate enough to
be engaged in such.

Two, if they have any visitation at all, it will be cut off, and they
are so informed.

Three, if they do not have any visitation, they know that they
will never obtain visitation if "they make waves."

Four, many parents inform the grandparents that they will leave
the State if any effort is made to get visitation. Many parents do
move to States that do not have adequate laws.

I believe that reciprocity is not common in very many States,
hence a national law would indeed help if each State elects to
adopt it. All of our knowledge about this problem comes froni per-
sonal experiences in our family, in the families of our close friends,
and from the hundreds of grandparents who have written to us. All
of the problems are similar — some are more heartbreaking than
others. We will not stop striving for normal relations between
grandparents and their grandchildren and other children's right
until we get too old to work or run out of money.

We have received letters on the same day from Maine, Florida,
California, Washington. These people did not know each other,
they did not know they were writing us or writing anybody else for
that matter, but the story is the same, Kansas, Missouri, anywhere
you go, the letters read the same.

Grandparents, who have been informed about the hearings that
are being held this morning, hope and pray that an adequate na-
tional law will be enacted soon enough for them to celebrate a
merry Christmas with their grandchildren before they are too old
to share this blessed holiday. Many grandparents are even denied
the right to send cards or gifts to their grandchildren.

How would you feel if you were told that you could see your only
grandchild for 2 or 3 hours on Christmas Eve— that it can never
come back to your house, yet that same parent has placed this
child in your care for 5 of its 10 years on this Earth? The grand-
child lives 500 miles away from you, and the parent expects some-
body to drive that far for 2 or 3 hours on Christmas Eve.

Thank you, sir.

Mr. BiAGGi. Thank you.

[The prepared statement with attachments of Mr. and Mrs.
Sumpter follows:]

Prepared Statement of Mr. and Mrs. Lee Sumpter, Grandparents— Children's

Rights, Inc., Haslett, Mich.

Grandparents are and always have been a vital link in our society. They are the
unwritten history of our families, towns, states and nation. They are the unrecog-
nized therapy that our children need. They are the safety valves for the troubled
families, and the cheering section for everyone's progress. Grandma and Grandpa
are the repository for tall tales, good advice, dubious guidance depending on who
asks for what and under what circumstances.

Our very limited experience with grandparenting has shown us that grandparents
are very disturbed if they do not or can not function in this rightful role. I strees
rightful simply because we believe that grandparenting is a Right and not a privi-
lege. The judiciary in our country does not have a very good concept of the rights of
grandparents. After reading many case histories of grandparent visitation court de-
cisions, gathering information from hundreds of letters and comparing similar expe-
riences with other concerned grandparents across the states, the courts strongly
agree that grandparents have no rights.

How much of this heartbreaking dilemma that has been created is our fault? We
choose to believe that the majority of the grandparents have been unjustly denied
the right to visit their grandchildren. Dr. Arthur Kornhaber, co-author of "Grand-
parents— Grandchildren, The Vital Connection", has evidence that some grandpar-
ents do not care to see their grandchildren, and this is very difficult for us to under-
stand, but we do admit there are grandparents who should not associate with their
grandchildren because they do upset the equilibrium of families and they create
senseless problems. Time, distance and economic play a big part in restricting fre-
quent visitation, and anyone can accept those reasons for not being able to visit
grandchildren.

We must establish a basis for our visitation problems. A child is brought into the
world, and normally both parents share their love with it. Because of death, divorce
or separation, one parent is gone. The remaining parent takes the child to live in
the home of maternal or paternal grandparents where they may remain for months
or for several years. Because the parent may be away during most of the child's
waking hours of the day, the child will develop a secure and loving relationship
with its grandparents who care for it. Later the parent will take the child to live
with a step-parent or a live-in girl or boy friend. The step-parent or friend will
decide that the child is not to visit the grandparents anymore. "Why", you ask? We
do not know. They do not know, or they will not tell you. We believe that they are
jealous of the child's love for the grandparents. The parents are insecure and imma-
ture. In many cases they are self-centered, selfish, egotistical and mentally ill. 'They
have no deep love for the child, and do not care that it is being deprived of a loving
relationship with its grandparents. The child has no rights either.

We have developed several categories of grandparents who are being denied visi-
tation with their grandchildren. Circumstances are created which lead to denial
based on divorce, death of one parent, a custody battle with one parent denying one
or both sets of grandparents, live-in partners deying one or both sets of grandpar-
ents, outright denial of visitation without any reason, and cult membership. The
step-parent adoption is the most vicious because judges are telling the grandparents
the children have too many grandparents, or that, they the grandparents have no
rights. These grandchildren are the blood relatives of the grandparents.

There are three stages grandparents involuntarily experience when told the glori-
ous news "You can't see them anymore." You are shocked, really can't believe what
you are hearing. Especially if you have had a loving relationship with the child for
X number of months or years. Next, self-pity sets in, or what did I do to my children
to make them treat me this way? After you realize that you did not do anything,
you get angry. This anger becomes a permanent state of mind. It will not go away,
and it is not a hate feeling, but a seething frustration. Every time another confron-
tation occurs, that incident merely fuels the anger.

We have a very difficult time finding grandparents with a visitation problem.
Many are reluctant to speak about it because it is a family problem, they are
ashamed of it. Many do not consider that anybody else could have the problem. And
third, if they are having any contact with the children at all, they are afraid that if
they make waves they will be cut-off completely. We have been told this by lots of
grandparents. Grandparents cannot go public, cannot go to court, and in the process
go through considerable humiliation at the hands of their children. These parents
grew up in the sixties and seventies. They want it all their way, want it now, and
finally realize that adulthood is too much for them. The run the full range of
mental disorders from chronic manic depressives, to schizophrenics, to paranoids,
and ego maniacal selfish immature people.

The grandparent visitation problem is a national disgrace. Forty states have laws
in varying degrees allowing grandparents access to courts to petition for visitation.
We have copies of all forty state laws and are constantly updating them. In the past
four years, eighteen states have passed legislation in some form. Dr. Kornhaber rec-
ommends mediation on a mandatory basis of eighteen to twenty-four months. We
know that this is the best solution. The courts do not have the expertise to handle
family matters. Divorce, yes for the adults, but who thinks or cares about the chil-
dren. The mediation recommended must be backed by law, required by law, and ad-
ministered by the law. Grandparents are ignored by the judiciary. Parents lose their
children and grandparents are not allowed to adopt, have custody, or even visit. The
worst circumstance is adoption by step-parents. Many state laws prohibit grandpar-
ent visitation after adoption. Children that are being emotionally, mentally, phys-
ically and sexually abused are usually being denied the right to see their grandpar-
ents. Children as young as 4 or 5 years old try to run away to the homes of their
grandparents for safety. Younger children are also committing suicide.

The mediation panel would consist of professional people in the medical, social
sciences, and mental health fields. We might have to launch the concept as an ad-
junct to a court. The children would certainly be a part of the process.

The state laws dealing with visitation are widely divergent. Some allow for visita-
tion based on the death of a parent, a custody case, or in a divorce. Some states
combine all of these in one law. One state allows grandparents a voice in the adop-
tion procedure. Pennsylvania has a law to cover all categories of grandparents men-
tioned earlier, and for all situations now prohibiting visitation. Delaware has five
sentences in its law, and it covers the entire problem.

Grandparents-Children's Rights, Inc. is actively assisting involved grandparents in
each state to seek adequate laws to protect the visitation rights of grandparents and
children, and to organize active contact groups in each state to work for a national
children's rights law. A national mailing list is being compiled to allow grandpar-
ents to share information. We must be able to communicate with one another across
town, county, state and nation. We have received 820 letters and telephone calls
from grandparents, 94 letters from professional persons and others who are interest-
ed in this problem. Eight negative letters have been received from parents and
others who resent what we are doing. If we are to have a national law, we will need
much help from concerned grandparents and their friends in every state to lobby
for this badly needed law. As we travel in different states, we call grandparents who
have not added their names to the mailing lists, and we also talk with those who
are against visitation laws. We need one contact leader in each state. One grand-
mother in Illinois worked alone for two and one-half years to lobby for a law before
she found out there were 40 more grandparents in Illinois who had similar prob-
lems. It will take much time, effort and money to obtain a national law, and every
grandparent is indebted to Dr. and Mrs. Kornhaber for the time, work and money
that they have donated to this problem and for founding the Foundation for Grand-
parenting.

I would like to close by telling about a young mother who lives in Detroit. She
telephoned us to please find some grandparents who would allow her to legally
adopt them for her three small children. She also wanted the name of a lawyer who
would take her case. The children's natural grandparents did not want to be both-
ered with their own grandchildren. We have sent letters to the Michigan mailing
list to try to find grandparents for those children.

D'-cember 1982

ThiB compilation Indicates the categories that grandparents nay
petition their state courts for visitation rights otherwise denied to
them by members of their immediate family or by others.

I. Reasonable visitation rights of any maternal or paternal
grandparents.

1. Connecticut A. New York

2. Delaware 5. West Virginia

3. Idaho 6. Pennsylvania

II.

III.

The court has jurisdiction to grant visitation privileges
to grandparents or to anyone else when it deems such
privileges are appropriate.

1. Hawaii

2. Missouri

3. J.'evada

4. Ohio

5. South Carolina *

6. Utah

7. Virginia *

8. Washington

Visitation rights of grandparents involved with death,
divorce or custody.

IV.

Alabama

10.

Iowa

19.

New Mexico

Alaska

11.

Kansas *

20.

North Carolina *

Arkansas

12.

Louisiana *

21.

Oklahoma •

California

13.

Maryland *

22.

Oregon

Colorado

14.

Michigan

23.

Rhode Island

Florida *

15.

Minnesota

2A.

Tennessee

Georgia *

16.

Montana

25.

Texas

Illinois '*

17.

New Hampshire

26.

Wisconsin

Indiana *

18.

New Jersey

Pending legislation

1. Arizona

(Maine and Mississippi plan to introduce grandparent
visitation bills in January, 1983-)

No laws or pending legislation.

1. Kentucky

2. Maine

3. Massachusetts
A. Nebraska

5. North Dakota

6. South Dakota

7. Vermont

8. Wyoming

9- Mississippi

10. Washington, D.C.

^Improved a law in I98I or 1982
If you need a copy of the law, write to:

might

Ask for a copy of any law or pending legislation that
. have concerning the visitation rights of grandparents.

GRA\'DPAREriT3 -- CHILDREl^l'S RIGIITS, irJC.
5728 Bayonne Avenue
Haslctt, Michlp;an A8840

Contacts

Arkansas

Sharon Pallone, L.H.D.

SCAN AMERICA, I!JC. ( Suspected Child Abuse and Neglect)

P.O. Box 74A5

Little Rock, Arkansas 72217

l-BOO-6'!43-&7£''4

California

Vivian Doering

King Features Syndicate

P.C. Box 591

Sscondido, California 92025

7H_72,6-0970

Ed Klostcr

"Fa-nily Circle Magazine"

1196 Hamilton Avenue

Palo Alto, California 9^301

9I6-567-IO89

Gerald Tellers

c/o Family Counseling Services of the Superior Court of California
325 S. Melrose Avenue Mr. Tellers wrote: "l had never heard
Vista, California 92083 about this problem until I read the
71-^-758-6526 "Family Weekly" article. (87 letters and

telephone calls have been from Calif. )

Stepfamily Association of America, Inc.

900 Welch Road, Suite AOO or 3001 porter Street, N.W,
Palo Alto, California 9^504 Washington, D.C. 20008
415-328-0723 202-966-1258

No. 101

Colorado

Margaret Carlln
Rocky_Mouj2taln_NewB
Denver, Colorado
303-892-5321

Barbara ?.1cCornack

Dept. of Human Development and Family Studies

Colorado State University

Fort Collins, Colorado 8O523

Dave Siriani

Fathers for Equal Rights

3016 Ivy

Denver, Colorado 80207

303-333-3773

■Vanhi:ir*>»-.n, D.C.

Helra R. Graham

National Committee for Adootion

Suits 326

1346 Connecticut Avenue M.W.

Washington , D.C. 200^6

202-463-7559

Georgia

I;!iko Goldgar
Grandnarents Day
P.O. Pox 490022
Atlanta, Georgia 30349
404-457-9662

Illinois

Phil Donahue Segment of the Today Show

c/o W G N - TV, Attention Shcri Singer, Producer

2501 Bradley place

Chicago, Illinois 6O6I8

312-883-3427

The Honorable Donald W. Dean
State Representative
426 South John Street
Bloomfield, Indiana 47424

Kansas

The Honorable Anita Niles

State Representative

Route 2

Lebo, Kansas 66856

316-256-6262

Massachusetts

Massachusetts Parents Anonymous

Statewide Resource Office

120 Boylston Street

Boston, Mass. 02116

800-882-1250 (Toll free only in iilass.)

617-482-4695 c/o Julie

Michigan

Gene B. Wilson, Director
Ann Arbor Public Library
343 S. Fifth Avenue
Ann Arbor, Michigan 48104
313-994-2333

Margaret Bubolz, Ph.D.
College of Human Ecology
Michigan State University
East Lansing, Mich. 48824

■;.■■. I. L.D. (A Conmlttee to l^elp Institutions Litigate Divorce. Tho

=ob Allers, Ph.D., ChairoGrson primary concern is v;ith the

S770 Jewell " best interest of the Chi_la)
Co:nstock Park, i.'ichlran 49A21

Luella Davison
C-randDarents Anonymous
536 V/'. Huron
pontiac, ".'Ich. 48053

FATHERS FOR r;QUAL RIGHTS OF A.'>!SRICA, IMC.

Alan Z. Lebow, Executive Director
'.Vayne-Cakland-Macomb Chapter
30233 Southfield Road, Room 208
Southfield, Michigan 48076
313-354-3080

"K I N D E R" (Kids in >3eed Demand Equal Rights)
Renee' patten ,
177 Lincoln Court
Rockford, Michigan 49341
616-866-0441 (8:00 A.M. to 3:00 P.M.)

Mrs. Leslie Campbell (Parent of a Snatched Child)

S.W. Iv'ichifran Friend of Child Find

10937 Red Arrow Hv;y.

Mat taw an, Mich. 49071

616-668-3733

Phyllis C. ycMillen

Attorney at Law

Senior Citizen's Law Center

C-enesee County Legal Aid Society

352 S. Saginaw street 4th. Floor

Flint, yich. 48502

313-234-2621

Vewsweek

"Tr. Gibney, Detroit, Mich.

313-259-4833

OSA (Office of Services to the Aging
300 E. r.'.ichipan
P.O. 30X 30026
Lansing, Mich. 48909

5TEPFAMILY ASSOCIATIOt! OF MICHIGAN-OAKLAND COUNTY, INC.
1366\'. Fairview Lane
Rochester, Mich. 49063
313-642-2340

Gary Stollak, Ph.D.
Department of Psychology
129 Snyder Hall
Michigan State University
East Lansing, Mich. 48824

'.VDI"-XBC Sonya
622 S.W. Lafayett
Detroit, •.'ichifran 48251
313-222-0AA2

WJIM - Radio The interview and WJIK - TV
2820 E. Saginaw
Lansing, Mich. 4890A

WIE^.I - TV

Ellen E. Jones, Mews Reporter (Tape available)

Broadcasting Division, Weredith Corp.

P.O. Pox 551

Sacinaw, :.'ich. -'+8606

517-755-8191

WUC:-,5-TV Day By Day, Andy Rapp

Delta College

University Center, I/.ich. 48710

'.VXYZ - TV Kelly and Conr.any
20777 W. 10 Wile
Southfield, Mich. 48057
515-827-7777

Ohio

Pauletta Bro.vn, Director

Dept. for the Elderly

Catholic Social Services, Diocese of Toledo

1955 Sriielbush Ave.

Toledo, Ohio 45624

419-244-6711

Cheryl Jensen, writes a weekly column, "Caring" , for ^^^ plain^_pealer
12700 Lake Avenue, ,-72205 in Cleveland, Chio
Lakewood, Chio 44107
216-226-8990

IJew Jersey

Alice Eckerson

Atlantic City press

Devin Lajie

Pleasantville, New Jersey 08252

Ken Paulson

Courier 'Jews

Brid^ev.ater , Mew Jersey 08807

201-722-8800

new York

Peggy Clausen Jody Abramson

He.7 3v;cek Newsv;eek TV

T^ZTZT^iadison Avenue 212-350-1969

Mew York, N.Y. 10022
212-550-2507

Tjnnise Decker

Senate Reaearcli f:'.:i'VLce

Senate chamber

State Capitol

Albany, Nev; York 12247

5I8-A55-2139

Linda Villarosa, Research La>v section--"Visitation Rights

Family Weekly, Inc. For Grandparents" (11-29-31 and

The Newspaper Magazine 12-27-Sl), written by Dolores

6^1 Lexington, Ave. Hew York, N.Y. 10022 Walker, Esq. and Roslyn
212-980-0500 Kramer

Dr. and Mrs. Arthur Kornhabcr

FOUNDATION FOR CRANDP^;^'■■;^JTI\'G

10 West Hyatt Avenue

Mt. Kisco, Mew York IO5A9

91A-2A1-0682

Pennsylvania

FACE (Fathers' and Children's Equality)
District VII, York County Chapter
Hr. Elmer Lvle, jr., President
P.O. Box 933
York, Penn. I7AO5

Texas

Sterling Municipal Library, :-,:rs. :,;ervin Rosenbaum
Public Library Avenue
Bay town, Texas 77520
A27-7331

TEXAS FATHERS FOR EQUAL RIGHTS Grandparents write to:

Wives and Grandparents Coalition Hr. and Mrs. Thomas M. Hughes
San Antonio Chapter 607 W. Gerald

P.O. Box 3AOI7I San Antonio-, Texas 78221

San Antonio, Texas 7823A 512-922-559A

512-653-2669 (2A hr. service) (Self-addressed, stamped,

legal size envelopes are
requested, please)

!;:a';y of the parents who deny visitation rights to the
cra'idparents of their children belong to "this new

GEl'JERATICN".

ri^\^S NbWS n-3i1'SI l^a^r^^^^f-^r^Sj^^^^ ^K^t'A.

Baby boom casualties

By AL ROSSITER

Vniled Pro' International

The children of the post-war
baby boom have come of age
and health authorities report
the increase in young adults in
the United States is accompa-
nied by a new generation of se-
verely mentally ill young
people.

This new generation of men-
tally ill has been described as a
rootless, unemployed class who
use alcohol and other drugs
heavily and who strongly resist
help.

Many of them have

never seen the inside of a men-
tal hospital and are more likely
to call themselves social casual-
ties than victims of mental ill-
nesses or personality disorders,
aaording to Dr. Bert Pepper,
director of the Rockland County
(N.Y.) Community Mental
Health Center.

He said these patients in
their 20s and 30s have a variety

of diagnoses but share many of
the same problems — their vul-
nerability to stress, their diffi-
culty in making stable
relationships, their inability to
get and keep something good in
their lives and their repeated
failures of judgmeiit.

"Most have been able to make
only transient, unstable, unsat-
isfactory relationships with peo-
ple their own age," Pepper
wrote in the current issue of
llotpilal & Community Piychia-
try. "Their friends and lovers
are often other marginally
functional people with equally
uneven life courses and du-
bious prognoses."

Pepper, who also is pro
fessor of psychiatry at New
York University School pf Medi-
cine, said since many of these
mentally ill young people do not
view themselves as patients,
they are reluctant to acknowl-
edge a need for treatment.

He said they are just as likely
to blame mental health profes-
sionals for their problems as
they are to turn to them for
help. .

Pepper said a review of 900
patients seen in a three-monlh'
period last year at the Rockland
County center indicated thai
294 were members of a group
called chronic young adull pa--
tients. Fifty-seven percent were
diagnosed as schizophrenic and
7 percent were manic depres-
sive. The others had personality
or behavior disorders, neuroses,
drug or alcohol dependence and'
other disorders.

"We estimate that for every
dysfunctional young adult we
see, there are two to 10 in the
community who never arrive al
our doorstep but are hidden in
dysfunctional families or in
jails, or wander unnoticed on
city streets," Pepper said.

Of those who arc seen
in mental health centers, he
said few show marked im-
provement.

"Instead they become, mvi-
dually and collectively, our alba-
tross. They are functioning
persons only in the marginal
sense. They manage their lives
tenuously at best and disas-
trously at worst."

O't'TH.^O^

Tlioo^^ Uj2^Xf//f^7 7c^«iyyj«»ii, TS-^i-rt.. 31>6 6;l

Mr. BiAGGi. Mr. and Mrs. Kudler.

STATEMENT OF MR. AND MRS. HARVEY KUDLER

Mr. Kudler. Members of the committee, 2,700 years ago King
Solomon made a pilgrimage to Gibeon. He "asked of God the gift of
an understanding heart so that he could judge well between good
and evil." We all know how well God granted that request. When
Solomon decided which of the two women who came to him — in a
dispute over a baby — was the true mother, his decision made the
King's name synonymous for all time with the word "wisdom."

Today, my wife and I come before this committee with a horror
story involving our legal rights as grandparents to visit with our
dead daughter Judy's two children, Brian, 13, and Vanessa, 10.
These children have been abducted by their natural father in 1979
from New York, where we had been granted visitation rights by
the State supreme court, to Colorado, where we have been stripped
of our New York State visitation rights, in defiance of both State
and Federal law. We have not been allowed to see, talk to, nor
write to our grandchildren for more than 3 years.

We think you Members of Congress are as wise as Solomon and
that you will cut through the chains of redtape that keep a genera-
tion of suffering grandchildren apart from their grieving grandpar-
ents.

The problem we bring you is nationwide, involving what the New
York Times described as the child-snatching of 100,000 children a
year.

I show the committee a number of petitions we have brought
here from Queens County. They total 553 signatures. Each bears
the relationship of the signer to a child. They include many grand-
parents, parents, friends, rabbis, and teachers: people who know
and love children. In fact, my wife and I and our friends have not
yet met a single person who would not sign our petition to Con-
gressman Biaggi and this committee asking that grandparents' visi-
tation rights be enforced on a national level.

What we bring you is one family's story. But in the past 3 years
we have received letters, mail, and phone calls from dozens, if not
hundreds, of grandparents and other relatives across the country
who share our problem and our pain.

In the past 5 years my wife and I have appeared in 10 different
courts in two States and the District of Columbia fighting for our
visitation rights and our grandchildren's rights. We intend to con-
tinue to fight until our problem and those of other unfortunate
grandparents are solved here in Washington.

We estimate that these court struggles have cost us more than
$60,000 to date. We are in debt. I am an English teacher in a New
York City junior high school. In 1980 I borrowed $5,000 from my
pension fund to pay a New York attorney who was representing
the children in a Federal suit. Every paycheck we received for the
past 3 years has included a $35 weekly deduction to pay off this
loan. We owe attorneys an additional $7,000, and we have received
bills every month for the past 3 years. At present we cannot afford
an attorney.

We are not alone. We know a retired railroad worker in Pennsyl-
vania, a grandparent, in the same predicament, who spent his life
savings in a similar struggle, and he still cannot visit with his only
granddaughter. This man's daughter, like our daughter, Judy, is
also deceased.

You cannot measure the anguish and psychological distress we
have suffered, knowing that we are being forcibly kept by a Colora-
do court ruling from our New York visitation rights. We fear for
our grandchildren's psychological and physical well-being, as we
learn they are constantly "punished," including being beaten with
a belt, by their natural father.

We welcome this opportunity to testify here today, for we feel
the answer to this national problem is here in Washington with
the Congress and with Mrs. Nancy Reagan and her foster grand-
parents program and her personal influence — with the U.S. Attor-
ney General, William French Smith, and the Justice Department's
refusal to enforce the Federal Parental Kidnaping Prevention Act
of 1980 passed by the Congress, but not enforced but for one case
we have read of out of hundreds of thousands.

Here is what happened to us. Our late daughter Judy, 18, and
her husband, Mallory Smith, 19, married in 1968. Mallory had a
felony drug conviction in Nev/ York. He served 4y2 years on proba-
tion for selling LSD to an undercover policeman. He also had other
arrests. Two children were born of this marriage: Brian, in 1969,
and Vanessa, in 1972. I have a picture of these children.

Mr. BiAGGi. Bring that up here.

Mr. KuDLER. Take the picture up to the Congressman, Marcia.

Mr. BiAGGi. When did you see them last?

Mr. KuDLER. Three years ago, just about this time, for a few min-
utes in Colorado. I am going to tell you about that.

In 1974 the couple separated. We took the children into our
home. Mallory even called me one night and told me that if I did
not take the children into my home he would put them into a
foster home.

We took the children and raised them for 5 years. We were given
legal custody — with the consent of both parents. Two years later,
Judy died by suicide. The following year Mallory remarried. He
took us into a different court and eventually was given custody, al-
though the court-appointed psychiatrist wrote the judge that Mal-
lory had a personality disorder and should not be given the chil-
dren. Dr. Brodsky testified that my wife and I had now become the
psychological parents of Brian and Vanessa. The judge also ruled
that, although the children told him they wanted to remain with
us, he did not care what they said.

Mr. BiAGGi. How old was the judge, roughly?

Mr. KuDLER. Judge Angelo B. Graci was approximately 60 years
old.

Mr. BiAGGi. I wanted to see if it followed Mr. Chasens' testimony.

Mr. KuDLER. Approximately 60 years old.

Judge Graci granted my wife and me visitation rights every
other Sunday from 10 to 6. Within 3 months of taking custody,
Mallory prepared to flee New York State. A hearing was held. He
swore to Judge Kunzeman that he would return after a brief vaca-
tion of 6 weeks, and he would give us 5 full days with the children.

The judge believed him. That night Mallory fled the State, taking
the children out of school — in a motor home — and vanishing.

We found him by the use of private detectives in Denver, Colo.,
in December 1979. We now had a warrant for his arrest, in New
York, from Judge Kunzeman. It is still good.

This time, Mallory swore in Denver that he would let the chil-
dren visit us in New York. The judge allowed us 4 hours with
them, and that was the last time we saw Brian and Vanessa. One
attorney, in Denver, suggested we "kidnap" the children, but we
said we had "clean hands" and we believed in the law.

A hearing was held in one day in Denver on June 13, 1980. Mal-
lory lied to the judge about his address. We found that out after
the trial, of course. He swore that my wife and I were anti-Catho-
lic, antiblack, too intellectual, antisports, and were upsetting to
Brian and Vanessa. The judge believed him. I have been teaching
in New York City schools for 21 years, in the same school for 20
years. I hold a Ph. D. in English from St. John's University. I was
active too in scouting for 12 years.

There were no other witnesses against us except Mallory and his
wife. There were no documents submitted in evidence, no corrobo-
ration of any kind. Yet the Denver judge refused to recognize our
New York warrant for Mallory's arrest. He told us to leave Denver
and to give up all communication and contact with the children.
Mallory's new wife has parents. The judge told us that Brian and
Vanessa now had new grandparents and to forget about the chil-
dren. We appealed for our visitation rights through the Colorado
courts and then to the U.S. Supreme Court, asking that our New
York visitation rights be honored under the full-faith-and-credit
clause of the U.S. Constitution. We also cited Public Law 96-611.
Two months ago the U.S. Supreme Court refused to hear our case.

After Mallory's flight from New York in 1979, we went to the
local city. State, and Federal authorities.

We now raise these questions to this committee: Why did John
Santucci, the Queens County district attorney, take tapes of testi-
mony concerning irregularities in the custody trial for 10 hours
from myself, my wife, my mother-in-law, my youngest son, and my
grandson Brian, and do nothing about apprehending the children's
father? Why would he not indict Mallory for perjury for lying to
the judge and saying he was coming back? Why did Ed Koch, the
mayor of New York, say he was going to investigate this case and
check with the New York City Department of Investigation which,
again, took written testimony from me, my wife, my mother-in-law,
and my youngest son and did nothing?

Why did the special prosecutor of the State of New York investi-
gate this case and do nothing?

Why did the Federal Bureau of Investigation in 1979 send agents
to our house, take statements and documents, interview our attor-
ney— tell us the U.S. Attorney General was sending a representa-
tive to our house, and then nothing happened?

Why did the judge in Denver ignore the fact that my wife and I
have lived a life built around home, school, community, and syna-
gogue, and take the word of a convicted felon, a man who is
wanted now in New York State for arrest, and strip us of our New

York visitation rights under a loophole he found in the Colorado
Grandparents Visitation Act?

We cannot answer these questions, but we hope you will try to.
Every grandparents' visitation rights case is different. But there is
a common denominator running through many of them. Our
daughter Judy's social security benefits of more than $600 a month
are being paid to the children's father. He lives with them — his
new wife and their two children — in a trailer camp. We have re-
ceived letters from other grandparents who say this is a common
situation today.

The benefits grandchildren now receive from social security for a
deceased parent makes these children very valuable to natural par-
ents, who may then refuse to allow these children to visit their
grandparents.

Nor does the Social Security Administration bother to check and
see if the benefits are actually being spent on the children. You
can multiply this case by tens of thousands.

For example, while the children's father was in hiding, he did
not collect their social security benefits for more than a year. After
the trial, he received $4,000 to $6,000 in one lump sum from the
Social Security Administration. We believe this money was used to
pay an attorney in Denver who argued in the court there that we
be denied our New York visitation rights. We ask the committee to
investigate this alleged misuse of social security benefits in our
case and others.

In our written testimony to this committee we have asked that a
Federal family ombudsman and a law guardians' panel be set up in
every State.

No machinery now exists to help grandparents after a parent
kidnaps a grandchild across a State line.

As Americans, my wife and I think of the impact that the trage-
dy of young Anne Frank has made upon the world.

We ask the committee: Can America now afford to raise an
entire generation of Anne Franks — forgotten grandchildren — held
as hostages — denied visitation by the grandparents who love them?

We call on the Congress, on Mrs. Nancy Reagan and her foster
grandparents plan, and on Attorney General William French
Smith to help grandparents and grandchildren to see each other.

This is what the Congress intended when, on December 28, 1980,
it passed Public Law 96-611.

My wife, Marcia, would now like to say a few words to the com-
mittee.

Mrs. KuDLER. Ladies and gentlemen, how can my husband and I
tell you in 15 minutes what we and our family have suffered these
past 5 years? I am here today not only for my husband, Harvey,
but for my 82-year-old mother, my three sons, my two youngest
grandchildren, my dear dead daughter, Judy, and for her children,
our grandchildren, Brian and Vanessa. We are not lawyers. We do
not know a great deal about the law, but we do know that we and
our grandchildren have the right to see and communicate with
each other.

We love Brian and Vanessa very much. We brought them up for
almost 5 years. They lived with us. We had full legal custody by

agreement with both parents. Why should procedures have to
stand in our way? Under the law don't we have this right?

We think it was the aim and the spirit of the Congress that
grandparents and grandchildren should have interstate visitation
and communication. Are not New York and Colorado part of the
United States of America? Why should the haven State of Colorado
be allowed to destroy visitation rights granted to us by our home
State of New York? Why shouldn't our warrant from a New York
State Supreme Court judge issued in 1979, be honored or at least
recognized in 1980 by a Colorado court judge?

We think the U.S. Court of Appeals Fifth Circuit ruling of 1980
and 1981 in the case of Johns v. the U.S. Department of Justice in-
dicates that a 5-year-old girl was entitled to due process, her civil
rights and counsel under the U.S. Constitution. Doesn't mean that
Brian and Vanessa are entitled to their rights, too? We have been
blocked by procedures and technicalities for more than 3 years, but
we stand here today in Washington before this congressional hear-
ing because we believe that right must prevail. We have not been
allowed to see our grandchildren in more than 3 years.

Why can't the facts be heard, at long last, by elected representa-
tives of the people? In the name of justice, please listen to the
facts. Are these children American citizens entitled to civil rights,
or are they just things? Who speaks for Brian and Vanessa? Who
speaks for other grandparents and grandchildren? God knows we
have tried to get justice in this case. All we ask is that the children
be allowed to visit us in our home in New York. We may not know
the law, but we do know what is right. We beg you, please help our
family and other families. Let your sense of justice guide you.

[The prepared statement of Harvey and Marcia Kudler follows:]

Prepared Statement of Harvey and Marcia Kudler, Flushing, N.Y.
"Grandparents Rights to Visitation"

(A SOLUTION TO AMERICA'S MOST-IGNORED PROBLEM)

A solution to America's most-ignored problem

James Fenimore Cooper, in one of his novels, describes how a group of pioneers
copes with an engulfing prairie fire. Cooper's hero, a plainsman, uses a trick he
learned from his Indian friends. He starts a second fire which burns out a strip
where the pioneer band can stand in safety.

We feel that now tens of thousands of America's grandparents and grandchildren
are being engulfed in a similar fire of cruelty and legal indifference. We hope that
the Human Services Subcommittee of the Select Committee on Aging will start a
backfire that will ignite the Congress to take action.

The United States Supreme Court has indicated in several recent cases, notably
Moore vs. the City of East Cleveland, that grandparents have constitutional rights to
a relationship with their grandchildren. In Smith vs. Organization of Foster Fami-
lies, the U.S. Supreme Court recognized the fact that children can be raised by "psy-
chological parents" who are not the children's natural parents. In this case, the dis-
trict court appointed law guardians for the foster children.

In 1980 and 1981, the United States Fifth Circuit Court of Appeals, in Johns vs.
Department of Justice, ruled that an American child has a constitutional right to
counsel ; before it can be deprived of its family. And, most importantly, on December
28, 1980, the Congress enacted a bill which states that no one, in America, can de-
prive a parent or grandparent of his custody or visitation rights by fleeing across
state lines. (Public Law 96-611: Section 1738A U.S. Code 28) And that last law, our
greatest bulwark against the erosion of the American family — through parental kid-
naping— is deliberately not being enforced by the United States Department of Jus-
tice.

Something must be done; and done immediately.

Speaking for other American grandparents, we ask the Committee to look at the
facts. Firstly, there is a New York State law, Domestic Relations Law; Section 72,
which states that the parents of a dead parent have special rights to see their
grandchildren. The reasoning behind this is self-evident. When a parent dies, the
only direct contact that a child has with his or her roots are his grandparents. The
Bible understood this simple but basic connection and many cultures in the world
today stress the importance of family continuity.

It was no coincidence that, in 1980, when Colorado passed its own Grandparents'
Visitation Act, that great state, like New York, wrote an almost identical visitation
clause, granting grandparents special visitation rights.

Yet a terrible thing happened to my wife and to me, on Black Friday, June 13,
1980, in a Colorado state court. First, the judge refused to honor our visitation
rights; granted in 1978 by a New York State Supreme Court judge. Secondly, he ig-
nored the fact that the father of my grandchildren has a bench warrant for his
arrest, outstanding in New York.

(Throughout the proceedings in New York, the father hid his plans to flee the
court's jurisdiction, knowing that we had no legal remedy. Colorado ignored the
New York court order and extinguished our relationship with Brian and Vanessa.
Bear in mind that we had cared for them, in our home, for an uninterrupted period
of five years. During this time, we had legal custody of the children; with consent of
both parents. During this period, our daughter, Judith Bess, the children's mother,
passed away.)

My wife, Marcia, and I have raised our four children in our community. We have
lived in the same home for thirty-two years. I have been a teacher in the New York
City school system for twenty-one years. I have a Ph. D., in English, from Saint
John's University. I was a Cubmaster and Scout leader, for twelve years, taking my
sons and my grandson, Brian, into Scouting.

My wife was president of the Parent-Teacher Association in our public school. She
was a Girl Scout leader and led our late daughter, Judith, and our granddaughter,
Vanessa, into Girl Scouting.

We are life members of the Hillcrest Jewish Center and are leaders in synagogue
activities. Our three sons earned college degrees and they hold responsible jobs.

Our oldest son, Harold, 29, is completing a residency, in Psychiatry, at the Yale
Medical Center. He is married and lives in Connecticut, with his wife and two chil-
dren. Our second son, Howard, 28, has a Master's Degree from Saint John's Univer-
sity and works for a Wall Street firm. Our youngest son, Harley, 26, works for the
New York Telephone Company. He is doing graduate work, at night, in Special Edu-
cation, at Saint John's University.

When the attorney we hired, in Denver, told the local judge that my wife and I
also had visitation rights under Colorado's own Grandparents' Visitation Act, the
judge used a loophole to strip us of our visitation rights. This was done, ignoring the
father's criminal record. (He served four-and-a-half year's probation, in New York,
on a felony charge of selling drugs.)

We appealed that decision through the courts of Colorado up to the United States
Supreme Court. In October, 1982, the highest court in the land refused to hear the
case.

For the last two years, since the Congress passed the Federal Parental Kidnaping
Prevention Act of 1980, we have been looking to the United States Justice Depart-
ment for help. But the Justice Department is, in effect, overriding the will of the
American people by practicing "selective enforcement" of Section 1738 A of the U.S.
Code. 28.

How "selective" is this enforcement? In the two years since the law was passed
and hailed by the New York Times, in an editorial (January 10, 1981: "The Feds
Pursue the Child Snatchers,") we are aware of its being enforced only once. On Sep-
tember 2, 1981, the Times reported that Bruce Wettman, a Family Court judge in
Houston, Texas, was the first judge in America to honor the new Federal parental
kidnaping law. Judge Wettman honored the custody claim of a father from New
York who had invoked the new Federal law.

Only one case reported enforced; even though the New York Times wrote, in 1981,
that more than 100,000 children a year (2,000 a week) are being kidnapped in Amer-
ica; by vengeful parents. Grandchildren are being deprived of basic family rights.

When my wife and I appeared recently in the office of the United States Attor-
ney-General, in the Eastern District of New York, we were told that the Justice De-
partment, in Washington, does not want to "open the floodgates."

We say to this Committee, "Open the floodgates!"

Because behind those floodgates, are tens of thousands of American grandparents
who are trying to re-establish contact with their own grandchildren — the very
future of America!

This is as important to the Aging as their economic rights so often protected by
this Committee. There can be no golden years without the glow of grandchildren.
We grandparents have been left with the ashes of our memories.

Our First Lady, Mrs. Nancy Reagan, has called for the establishment of a Foster
Grandparent Program.

We heartily endorse this proposal and urge Mrs. Reagan to continue to use her
influence to try and help the grandparents of this country.

The decisional incompetency, capriciousness and indifference of the courts and
the Justice Department, are forcibly keeping grandchildren from their grandpar-
ents.

Here is what we propose: We ask the Congress to appoint a Federal Family Om-
budsman in every state of the Union. If a grandparent feels that he or she has been
wrongly denied or deprived of his or her legal rights to see a grandchild, then that
grandparent could go to the Federal Family Ombudsman. The Ombudsman would
be able to enforce Section 1738A of U.S. Code:28, the three recent Federal court
cased I have cited and any other appropriate new legislation passed by the 97th
Congress. By this process, the children of America would be protected.

The Federal Family Ombudsman should also be assisted by a special Law Guard-
ians' Panel, to be established by law. This panel — in each state — will be made up of
trained people who know and work with children. These experts will be people who
know what truly serves a child's best interests. Such a panel would include; physi-
cians, social workers, teachers, lawyers, clergymen, grandparents, nurses and psy-
chiatrists.

Complaining grandparents would present all the facts in the case directly to the
Ombudsman who would refer the case to the Law Guardian's Panel. The panel
would investigate and then discuss each case on its merits. Then the Law Guard-
ians' Panel would make a recommendation to the Family Ombudsman. The Federal
Family Ombudsman would then decide; based on the findings of the panel, what the
grandparents and childrens' civil and legal rights should be.

These problems cross state lines and only Federal intervention now can rational-
ize the legal rights of grandparents and children. A Federal Family Ombudsman
and Federal Law Guardians' Panel, in every state, would guarantee that the forgot-
ten generation of children who are now being dragged across the state borders of
this country will be protected— under Federal Law— as the 96th Congress intended
they should be, when it passed Public Law 96-611.

This will protect future grandparents from the trauma and heartache we have
suffered. No longer will one state be able to ignore the visitation and custody rights
of grandparents. Future grandparents will not be denied "The Full Faith and Credit
of the United States Constitution" as we were.

Given the harsh ruling by the United States Supreme Court, in our case, on
grandparents' inter-state visitation rights; it is interesting to note the humanitarian
rulings by this same court in Kent v. U.S. and in re Gault where juveniles were
charged with crimes. The highest court has ruled that a youngster accused of the
smallest juvenile crime is entitled to counsel. But as yet, any child who, as one at-
torney put it, has his whole life-to-be endangered, in a custody case, is not granted
counsel by state court judges.

For example, when my wife and I offered to pay for counsel, on the record, in
Queens Supreme Court, for my grandchildren — these children were denied counsel.
They stood, as some psychologists have said, unprotected against the state's will.
And, we think, their civil rights were violated.

This country has got to gets its priorities in order. Our children and grandchil-
drend are our most priceless heritage. Their futures are too precious to be put in
the hands of state court judges who do not know enough about family life to realize
they are destroying children's futures. We have seen a judge, in Colorado, sentence
hand-cuffed criminals, even as he then passed judgement — without help of outside
agencies — on the lives of two innocent children. In short, both grandparents and
grandchildren are having their civil rights, constitutional rights, religious rights
and the right to be free of kidnapping all violated; while the U.S. Department of
Justice; charged by law with protecting these rights, sits idly by, or worse, places
roadblocks of delay in the paths of grandparents seeking have their legal rights en-
forced.

We ask the Committee on Aging to "Open the floodgates." Behind those gates
stand America's older and wiser people, begging for help.

My wife, Marcia, and I are working with our local Holocaust Memorial Commit-
tee in the temple in which we are life members. As American Jews, we saw what
happended to millions of our brethren — men, women and children, when Western
Civilization, in World War II, turned its back on Anne Frank and her friends.

Must similar horrors be perpetrated on American children by massive bureaucrat-
ic indifference to the rights and future of a generation of forgotten children — torn
by cowardly and vengeful people from the arms of their grandparents who love
them?

We do not believe that the American people or their elected representatives will
allow this to continue.

We have already heard too many horror stories about American children who
have lost a mother or a father and whose re-married parents collect hundreds of
dollars a month in Social Security benefits that should be spent for the children.

These children are then passed from new spouse to new spouse and the benefits
continue to pour out of the coffers of the Social Security Department — making these
children very valuable hostages; while the Social Security Department does not
check to see if this money is truly being spent, as Congress meant it to be, for the
children's best interests and not for the benefit of their latest guardian.

Many grandparents are being denied access to their grandchildren lest they sound
the alarm that a fraud is being perpetrated on the tax-payers who give their money
to the Social Security Department, as we do; while that Department does not bother
checking to see whether the children's benefits are being spent properly.

Again, we hope the Committee investigates this national problem thoroughly.

Charles Dickens, who himself spent time in a debtor's prison, with his father; and
who was forced, as a child, to slave in a blacking factory, left a picture of horrors
done to children that has made the names of Oliver Twist, Tiny Tim and Fagin im-
mortal.

We say that the horrors being done to American children, in this, the Computer
Age, far surpass anything even Dickens could imagine. The Computer Age, far sur-
pass anything even Dickens could imagine. The recent award- winning film "Kramer
vs. Kramer" raised the consciousness of America as to the shock of a custody battle
and its terrible effect on parents and children. The producers were careful to give
the film a relatively "happy ending," lest the audience flee the theater in droves.

In today's world of Reality, there are no happy endings for either grandparents or
grandchildren who are caught up by judicial ignorance, indifference or favoritism.

In March 1982, my wife and I made oral argument, along these lines, to a panel of
three Federal judges in the Second Circuit Court of Appeals, in New York. One of
these judges was a woman; a district court judge. She literally wept as my wife
made her oral argument. The two men on the panel were obviously deeply moved
and the chief judge said the court "was touched." But that high panel did nothing;
despite the patent violation of my grandchildren's civil rights and our civil rights.

We call the current state of affairs in which grandparents are denied access to
their grandchildren— while the Federal government watches with massive indiffer-
ence— "America's Most Ignored Problem."

In Asian and African cultures, the Family comes first. Wisdom and Love, personi-
fied by grandparents, are respected and revered.

Has this country sunk so low, do we so worship Money, Oil and Munitions that we
put them ahead of our future generation of children? Are Americans now so con-
cerned with themselves alone that they are willing to turn their backs on a whole
generation of forgotten, exploited, rootless and suffering children?

Will we stand idly and helplessly by while grandchild and grandparent are kept
separated by bureaucratic red tape and official indifference at every level of state
and Federal government?

We look to this Committee on Aging and to its Subcommittee on Human Services
to continue to investigate the horrors we have experienced first hand and which
mgmy others are living across the length and breadth of this great land.

We also look to Mrs. Nancy Reagan and her humanitarian interest in grandpar-
ents and grandchildren. We hope that the free press of this country will investigate
all the ramifications of this, America's most ignored problem, bar none, and that,
for once, the interests of voiceless children will be heard and listened to first ... in
America, instead of last.

Mr. BiAGGi. Ms. Ferraro?

Ms. Ferraro. When I made an opening statement I read from a
letter received by my office from Mr. and Mrs. Engel. As I was
going out to cast my first vote of this morning, a woman stopped

me on the way and identified herself as Mrs. Engel and indicated
she was here to hear what was going on during the course of the
hearings. I ask unanimous consent that she be permitted to address
the committee to share with us a little bit of her experience.
Mr. BiAGGi. Without objection.

STxiTEMENT OF MRS. HENRY ENGEL

Mrs. Engel. Thank you very much.

It has been 4 years since we have seen our two grandchildren.
We have tried persistently. Our daughter also Judy by coincidence,
is not a suicide victim as was the Kudlers' daughter, but destroyed
by her marriage. She is a runaway mother because she was afraid
of abusing the children and herself and ran away to give her hus-
band an opportunity to find a more supportive nurturing parent as
a mother. We entreated the custodial parent, the father, to have
some communication with the children.

After his remarriage, the relationship, which had been cordial
and warm and supportive, came to an abrupt halt. We found there
was vicious propaganda expressed against us and lies we heard ex-
pressed in court when we went to court. The judge in our case was
a woman, herself a grandmother, and on the basis of the testimony
by a psychologist whom the father had called in after he did not
like the findings of the court-appointed psychologist — he examined
the children for 10 minutes, one child for 10 minutes — and then
stipulated on the stand at $100 an hour, and he must have spent
about 10 hours there, that the child was fragile as a result of
having gone through the traumas of a runaway mother and having
been left and abandoned. Any visitation rights granted to us would
increase the hostility of the custodial parent to such an extent that
the child's mental health would be threatened.

We had only arrived at the decision to go to court after months
of entreaty, letters. We finally persuaded our ex-son-in-law when
we found where he was — he had been gone 9 months — to meet with
us at a neutral place on Long Island. They are now back from
Mexico where they were for 6 years. He said at that time, "I will
not countenance negotiations to see your grandchildren. It is my
decision. I do not care if the children hate me, I do not care if they
suffer for it, there is to be no relationship and no contact hereaf-
ter."

Prior to that, in the hope that there would be some opportunity
to do something for the grandchildren other than just being a
grandmother, I took a course on learning problems because the
older of the two children is dyslexic. As a result of taking that
course, and of trying to learn something to help this child I became
involved in producing a book that has come out on the subject. The
book is a big success. My attempt to help the child is not. We have
seen the children once, since 1977, for about 3 seconds as they were
waiting to be called into the judge's chambers. I could not bear to
look at them in the sense that I did not know whether I would ever
see them again. The child, the older of the two children with whom
I had had a special relationship because I used to send letters to
Mexico — she was an artist, and I sent things for her to use in this

special skill— she was sneaking looks at us, very surreptitiously,
afraid of her father.

The decision went against us. The judge ruled that it would be
dangerous to the children, particularly to the older of the two with
whom this relationship had been established, but she said that ap-
plied only at the present time. Since that decision we have written
to the father, who is now on Long Island, asking that he cease his
opposition to us. We are the only grandparents in this area. The
stepmother has parents, grandparents in Mexico. His father is in
North Carolina. It was maintained that because we could not have
contact with the children for 5 years we had not established a
meaningful relationship. The father of our ex-son-in-law main-
tained in a letter that the new grandparents are supportive and
loving and have wonderful contact with the children. But they are
in Mexico. We are within an hour of them now.

We are searching desperately for a means to go back to make
our point known. We decided to go into legal action when I came
upon the book "Grandparents, the Vital Connection, Grandchil-
dren." In the course of this book there are drawings made by
grandchildren in connection with their relationships with their
grandparents. The decision to go into court was based upon a draw-
ing by a child who had been cut off from her grandparents and the
family of her mother, as ours have been. The child drew an empty
outline of a back.

We determined we would not let these children think we have
abandoned them. We have love, but the hostility of the custodial
parent has prevented us from letting them know it— we have writ-
ten to him since and asked for notes about the children, how they
are doing, pictures. We have no knowledge what is going on with
them at all. He has not answered anything. I feel the only recourse
we have for the children's sake, because the children are the most
important parts of our society, they are our future and the family
is important as a whole structure, is this Federal legislation where
the grandparents have the right inherent to them in the relation-
ships of birth and roots.

Ms. Ferraro. Thank you very much.

Mr. BiAGGi. Clearly you have established an emotional back-
ground and factual background for furtherance of our concern in
this issue. I know you represent an infinitesimal part of the entire
picture. To say it is outrageous is I think a moderate expression. It
can be infuriating, frustrating, all of the negatives one might apply
to a situation, certainly inconsistent with America's philosophy of
concern for human rights.

As you were testifying, I could not help but reflect on the effect
of such a denial if Mrs. Biaggi and myself were denied visitation. I
know you have experienced it. It is like dying a little, and you are
right. Being a grandparent gives you an opportunity to, well,
maybe compensate for what you did not do for your own children
in time and effort. The expression was said, when a child is born, a
grandparent is born, and there is no such thing as an ex-grandpar-
ent. You are dealing with deep, emotional, loving feelings, and to
deny a child the benefit and advantage of a stable relationship
with a grandparent is to deny a child a very important element in
that child's growth.

I guess I could talk ad infinitum in connection with this, but the
issue is plain. The facts speak for themselves. The grief that you
have been subjected to, frankly, is of such a magnitude it defies de-
scription. How you bear up under it is beyond me, without becom-
ing psychotic. It is testimony to your own strength and commit-
ment. It is the commitment to know one day that you will see them
again. I think we are coming to that day, and this is another step
forward.

The fact that we have some 42 States with laws — I know some-
times they are not always properly applied, and there are some in-
justices and there are some aberrations, but we do have some 42
States that have recognized the problem, and to me that is quite
encouraging. Now it is up to us in the Congress to talk about uni-
formity so there will not be loopholes and there will not be a sem-
blance of statutes that are faulty in their provisions. And enforce-
ment is critical. Every level of government has a responsibility to
enforce the law and not to be selectively engaged in this type of
practice. And to deny one person, one grandparent his or her right,
that is sufficient justification for proceeding. That to me is prob-
ably more important, enforcing the law that applies to that area is
more important than even some of the minor crimes that are being
prosecuted every day, because in the ultimate, most of those crimi-
nals are permitted to walk in the street even without serving a day
in jail an)rway.

Here we have law-abiding, loving parents who are being denied a
birthright, a birthright, and you have children who are being
denied a birthright. It is a human right. Someone said child abuse.
Yes, that is a form of abuse. We will look into that, too. But it is
certainly a fundamental human right that should be made availa-
ble to every person, not only in this country but in the world. But
let us deal with our Nation first.

Let me first acknowledge that Mr. Petri was here as a Member
of Congress and had to leave.

You stated something about the Justice Department, Mr. Kudler,
refusing to prosecute. Would you elaborate on that a little bit?

Mr. Kudler. Yes, sir. What I tell you may not make much sense.
I have gone over it, over it, and over it, with the Justice Depart-
ment people in New York and Washington. They assure me that
what I am telling you is the truth. Through the offices of Senator
D'Amato in New York we had an appointment with a young man
named Lawrence Zweifach in the intake division, the criminal de-
partment. Eastern District of New York in Brooklyn. He read a 67-
page chronology that we submitted and then he reported to Wash-
ington.

And at the interview, Mr. Biaggi, he said, "Were you aware that
the Justice Department was in effect practicing selective enforce-
ment?" He took out a manual, the kind we used to see in the
Army, and it had the U.S. Seal on the cover. He opened it to some
blue pages and these were house rules of the Department. He said
the Justice Department sometimes decided when to come into a
case like this and when not to. He used the words "green light"
and "red light." He did not explain to us what the rules were. He
said he would have to go to his superiors in Washington.

And we went to our rabbi, who explained what was going on, and
the rabbi said, "Find out who gives the green Ught and who gives
the red Ught."

We got a phone call and a letter from Mr. Zweifach, and he said
the counsel in the criminal division here, headed by a Mr. Law-
rence Lippi, had decided based on house rules, Mr.- Zweifach said,
they were keeping "the floodgates closed." Marcia and I and all the
people at the table are behind the floodgates. They did not want to
open the floodgates. The ruling is as of last week, and we have an
appointment with these gentlemen tomorrow. What they said was
that if you know where your ex-son-in-law is, we cannot help you.
It is a catch-22 situation. But if you do not know where he is, we
can ask the FBI to find them. We know that President Reagan
signed the National Parental Locator Act recently, which they will
not enforce for 2 years because it is too expensive, and who cares
about children's votes, anyway? Children do not vote.

Mr. BiAGGi. Grandparents do.

Mr. KuDLER. Yes, sir. And they said to us, Mr. Chairman, they
said to us that we will be happy to come into this case if you will
go to your State prosecutor or your local district attorney and get a
felony indictment against your ex-son-in-law. Then we will bring
the machinery of the FBI into effect. And then when we went back
to the State people, who have turned a cold ear to our pleas for all
these years, they said "No, go down to the Justice Department and
tell them to enforce the law." We are caught between the two, nei-
ther of which want to help us or anybody at this table.

Mr. BiAGGi. We will pursue this, Mr. Kudler. I will assign Dr.
Statuto to accompany you tomorrow when you visit.

Mr. Kudler. We are grateful for that, because two people alone
are helpless against a Federal bureaucracy.

Mr. BiAGGi. Dr. Carol Maria Statuto just joined our committee
and comes as a Congressional Science Fellow sponsored by the
American Association for the Advancement of Science and the So-
ciety for Research in Child Development.

Dr. Statuto received her doctorate in early childhood education
and psychology from Columbia University, where she has also
served as a faculty member. She established a program in child ad-
vocacy in 1977 at Marymount Manhattan College in New York, the
first of its kind in the country. Dr. Statuto received post-doctoral
training in child development and social policy from the Bush pro-
gram at the University of Michigan. We welcome her to the com-
mittee.

I want each and every one of you to know that every point that
you made today will be followed assiduously and relentlessly.

Mr. Shumway.

Mr. Shumway. Thank you, Mr. Chairman. I see the bells have
rung again. We will soon have to recess once again. I apologize for
that. The testimony here this morning has been very touching, and
I am sure each of us who have heard it have been affected by it.

In my own case, I am the father of six children, and only newly a
grandfather. Our first grandchild was just born last September. As
each of you testified about how dear those grandchildren are to
you, it is easy to personalize one's own situation. I could very much

empathize with your feelings knowing how I feel about my grandfa-
ther.

I am a former lawyer and participated in several custody cases in
California. I am familiar with how emotional those cases can be
and how difficult those rights are to determine. Each of you in tes-
timony seem to make reference to what has happened to you in
court and how certain judges have reacted to your pleas. In some
cases the judges have abused discretion, and in other cases they
have adopted views sympathetic with yours.

The concern that I have as a Member of Congress in considering
this in a national light is how we can structure a body of law, as-
suming we have the right under the Constitution to do so, that
would apply to each of the varied situations that you have illustrat-
ed here this morning. Obviously there have to be feelings that have
to be accounted for and emotions on all sides that have to be taken
into consideration. Yet, when we put something into statute we try
to invoke a sort of mechanical kind of situation that would perhaps
overrule some of the abuses of discretion you have been confronted
with in your court exposures.

My question is how to develop a law that would apply to this im-
portant area that would be mechanical enough to address your
needs but yet human enough to allow some of these important fac-
tors to be taken into consideration. It is a difficult mix to come up
with, but we are saddled with that responsibility because we have
to have it down in black and white. It has to be codified, and the
needs that you have referred to here this morning need to be ad-
dressed. It is something that is very difficult, and I just want you to
know that that is a task that we face that is not a very easy task to
resolve. Certainly if you have in your experience and within your
organizations and your communications, if you have the key to re-
solving it, we would be happy to hear further from you.

A second general area that I had concern with is if we are indeed
going to recognize grandparents' rights and the custody, when do
those rights take effect, and how should they be put into effect?
Would any of you expect that when a divorce occurs and a custody
dispute is handled by the court that the grandparents at that point
enter in as parties to the legal proceedings and that their rights be
determined then? Or would there be some kind of a subsequent
proceeding that would be triggered by incapacity of parents, and if
so, what would trigger that? Those are questions that I think need
to be resolved. I guess as we go on with the hearing we can come
up with answers, but if any of you have solutions, I would be happy
to hear from you.

Mr. BiAGGi. Thank you, Mr. Shumway. You raise problems that
are very significant. Those are problems that we will have to wres-
tle with in the crafting of legislation. The suggestion of whether or
not a grandparent should be sitting in at the dissolution of a mar-
riage is very commendable, but interestingly enough, there is one
State that permits that. Very interesting.

Mr. Chasens. I have a suggestion. I think the bloodline ought to
take priority. It is your body heir. These people have money set
aside. We have. We are fortunate, and if we look at it like chicken
soup, you think about it, it is healthy for you and will do you good,
but if you are thinking about it will help, it will help. Our mental

attitude has to change. Ninety-nine percent of the people say we
are right, but where do we go?

Mr. BiAGGi. You are moving. You are progressing. I am optimis-
tic. I think it is a right that should not be denied.

We will have to cut you short because we have bells, and I know
Ms. Ferraro wants to comment.

Ms. Ferraro. Mr. Chairman, I ask that you have the panel
remain until we come back from the vote, because I do have ques-
tions for the panel.

[Recess.]

Mr. BiAGGi. The hearing is called to order.

Ms. Ferraro.

Ms. Ferraro. Thank you, Mr. Chairman.

After listening to the panel, I cannot get over the frustration
that you people must feel, especially those people who have actual-
ly lost their children to death. I as a mother can think of absolute-
ly nothing worse than losing a child, except if it is compounded by
losing the child's children after that, and you have literally lost
those as well.

Mr. Kudler, I wanted to talk to you a little bit about what oc-
curred in Queens County. Before I ran for Congress, I was a super-
vising trial attorney at the district's attorney's office in Queens and
worked for John Santucci and practiced before Judge Kunzeman.
You indicated that you were in his office for 10 hours. What
bureau were you dealing with there?

Mr. Kudler. Mrs. Ferraro, before I speak, I may say something
that may sound intemperate. It is very hard for me to discuss this,
and I do want to answer your question. I would like to swear that
everything I am going to tell you is the absolute truth.

Ms. Ferraro. I have no doubt about that.

Mr. Kudler. I worked personally with Mr. Santucci's first assist-
ant, Mr. Joseph Fisch. The 10 hours were logged. He asked me to
bring Brian to him and he taped him. Then he introduced us to a
gentleman who never said anything, Mr. Fisch called him Mr.
Berg, and said he was their special investigator. Mr. Berg sat si-
lently and I believe the day that my mother-in-law, my wife, and
my son Harley were there, Mr. Berg was there also.

Ms. Ferraro. When you finished your testimony, was there an
attorney assigned to the case besides Joe Fisch?

Mr. Kudler. No, ma'am. Joe Fisch told us as he was taking the
testimony that it might not help us. But the information we were
giving, he said, was very important to the district attorney's office.
I told the Justice Department in Brooklyn what it was, and they
wrote it down. I believe they forwarded it to Washington. I do not
know if you want to hear me say these things, because we do not
want to color what you are hearing with the political climate of
Queens County.

Ms. Ferraro. The arrest warrant outstanding, was that issued by
Judge Kunzeman?

Mr. Kudler. Yes.

Ms. Ferraro. Thai was issued prior to your going to the DA's
office?

Mr. Kudler. No, ma'am.

Ms. Ferraro. It was issued after?

Mr. KuDLER. Yes, ma'am. I believe as a result of our having gone
to the district attorney.

Ms. Ferraro. You went to the special prosecutor?

Mr. KuDLER. Mr. Lankier, I believe after Mr. Nadjari left office,

Ms. Ferraro. Mr. Duffy is

Mr. KuDLER. Yes. We are interested in any help you can give us.

Ms. Ferraro. Has his office done an investigation in this matter?

Mr. KuDLER. No, the special prosecutor would not touch the case
with a 10-foot pole.

Ms. Ferraro. Because he feels with law enforcement officials
and members of the judiciary who have gone outside the scope of
their authority— he probably felt it was outside his jurisdiction.

Mr. KuDLER. I do not know. I would like very much for him to
talk to us. This is several years later, and we believe there have
been complications that changed the situation.

Ms. Ferraro. When you saw your grandchildren for the 4 hours
that you were there that last time, what was the reaction of the
children?

Mr. KuDLER. I will tell you my reaction, and I would like my wife
to tell you hers because we do not always see things the same way.
When we picked them up at the school, we had a warrant, and this
is the truth, we had not seen this girl in 6 months and she was 6
years old. She did not know we were coming. She ran to us and
after she said hello, the first thing this 6-year-old child asked us is,
"Where is Mrs. Corrado?" And Mrs. Corrado was her attorney in
Queens County. We think she wanted to go home with us.

Ms. Ferraro. Is that Pearl Corrado?

Mr. KuDLER. Yes, ma'am, that is Pearl Corrado.

Mrs. KuDLER. The children were shocked and Vanessa said,
"Where is Mrs. Corrado," because she felt Mrs. Corrado was her
savior. We had another attorney with us because Mrs. Corrado was
by then a judge.

We said, "She is not here."

She said, "Are we going home now? Should I get my coat or will
you take me like this?" We did not know what to say.

Brian came down the hall. I did not know him. He had lost a tre-
mendous amount of weight. He did not look like Brian, but he was
stunned and I really did not know who he was. He got close and
said, "Mammy"— that is what they call me. I said, "Brian, I did not
know it was you. Of course he hugged me, and he said, "I cannot
believe it. I was just talking to my teacher about you this morn-
ing." He was so flabbergasted. Of course it was a shocking experi-
ence, but those children wanted to come to what they call home
and visit with us and be with us and our family, and it was quite a
time.

Ms. Ferraro. I guess the question I would ask of all of you is one
that I guess is — it is hard for a parent, and I could imagine it is
equally as hard for a grandparent— if the courts found fairly, and
obviously from the testimony we have had today, many of you do
not feel you have been given a fair hearing either because the
judge did not understand or because there was insufficient testimo-
ny or in an instance where it was given and the child taken
away — if the court found fairly that it was in the best interests of

the child not to have you visit, would you accept that? I am going
to ask each one of you that.

Mrs. KuDLER. Who would decide this?

Ms. Ferraro. The court.

Mrs. KuDLER. How many people on the court?

Ms. Ferraro. If it were a fair hearing with a fair judge.

Mrs. Kudler. No, not one man. He cannot play God. It says, "In
God We Trust." We trust God. But in the courtroom its "who do
you know?" We were passed around from judge to judge. Nobody
wanted us. Nobody wanted the case. We were treated like dirt.
Nobody really cared about the children or where they belonged.
Judge Joan Durante — my grandson was walking down the steps of
the courthouse and he said, "I want to go back." Mrs. Corrado said
"Why?" "Because Judge Durante told me I should go to my father
for three Sundays". And she gave him cookies, and he said, "I do
not want to go, but she bribed me." That was the word he used.
"He realized what had really happened, and every judge had said,
"Do it for me, do it for me." They do not care what the child says.
No one judge should decide this, no, ma'am.

Mr. BiAGGi. Would the gentlelady yield?

How about a mediation panel?

Mrs. Kudler. Yes, made up of psychiatrists, social workers, and
other child experts. The family court is the most decent. They have
understanding. The Queens Supreme Court really is not interested
and they do not want us. I can tell you case after case, friends of
ours from our little area in Queens, one just yesterday had Judge
Graci

Mr. Kudler. Judge Bushman.

Mrs. Kudler. She got Judge Bushman and she was hysterical
last night when we called her.

Mr. BiAGGL The Sumpters, you prefer a mediation panel?

Mr. Sumpter. Yes, sir.

Mr. BiAGGi. Mrs. Engel.

Mrs. Engel. We agreed before during the trial that the best in-
terests of the children came first, because that is the priority issue.
When we found out that the best interests of the children were
being threatened by the father but not by us — they might suffer a
trauma of small proportions — mediation, yes, before the trauma,
large or small.

Mr. Biaggl Mrs. Chasens.

Mrs. Chasens. When you talk about mediation, we went to trial,
my husband told you. The judge spoke to my granddaughter in his
private chambers. She loves us, she enjoys being with us, one thing
after another, and after 2 days in the courtroom, this man gave us
a 2-year contract, a judgment for 2 years. We can see her as often
as we like, but that depends on the father. You know, she has no
say in it. She will be 12 in May. But he came back and he told us
all this. Then he gave us a visitation order, no less than four times
in 6 months.

Mr. Biaggl Mrs. Chasens, please just answer the question.

Mrs. Chasens. There would have to be firmer law and mediation
with the right kind of people.

Mr. Biaggl We are talking about the preferred course to pursue.

Mr. KuDLER. Congressman, the judge who took away our grand-
children in Denver was sentencing convicts in between talking to
us.

Mr. Chasens. I have two documents which I would like to
submit. One is a court order from Judge Gruzio, who I said was
family-oriented. This is back in 1976

Mr. BiAGGi. Please do not tell me what he said. Submit it for the
record.

[Material retained in committee files.]

Ms. Ferraro. Let me say that the reason I asked that question
was just specifically to get to an avenue that can be taken so that
we can see where we are going in order to resolve some of these
problems, and obviously, Mr. Chairman, the jurisdiction resting
solely in the courts is not satisfactory. There is no doubt in my
mind that every individual here puts the welfare of their grand-
children above their special needs, but by the same token even
they feel they are not getting a fair shake in the courts. Perhaps
the jurisdictional problem is something that we should look at as
part of our handling of this matter.

I just want to thank you all individually and you for coming
down as well. I am delighted you were able to be here. I will follow
up with some of our people in Queens who are known to me and
see if we can help you out.

I would like to mention the jurisdictional problems that occur be-
tween States. New York State had an arrest warrant and Queens
County has tens of thousands of arrest warrants outstanding. Their
jurisdiction extends to the borders of the county, it does not go fur-
ther.

Mr. KuDLER. This one extends to the State of New York.

Ms. Ferraro. It extends to the State of New York, but not to the
State of Colorado. That is why the frustration is extremely acute,
but whether on this type of thing, I used to be in charge of the spe-
cial victims bureau handling the child abuse cases and elderly vic-
tims and battered spouses. It did not extend beyond, and often we
would have the arrest warrants and have to wait until they came
back to our jurisdiction. We will follow up. I do not know what can
be done in the county, but we will follow up.

Mr. BiAGGi. Mr. Rinaldo.

Mr. Rinaldo. Thank you very much, Mr. Chairman. I was just
listening to some of the statements you made with great interest.
What I want to do is first of all certainly congratulate you all for
coming down here, and then I recognize that it has probably cost —
many of you have been involved in court action — thousands and
thousands of dollars. What I feel is important is, what advice do
you have, and I would appreciate it if you could answer it briefly,
for other grandparents who are interested in pursuing their rights?
There are many cases. I am sure some of these people are probably
reluctant to do so. In other cases perhaps they do not have the fi-
nancial means to be able to take legal action. What would you sug-
gest?

Mr. Chasens. Personally, it is the temperament and the under-
standing of the judge. We are victims of that. I have a statement
which I read from Judge Grucio's order. Judge Francis, they were

very liberal. The young judges are trying to set a precedent or
something, I do not know. This I will quote verbatim,

After years of litigation, I think I have gone along with this enough. If you think I
will not enforce my order, just stick around. You will see that I will enforce it, that
I enforce all my orders. I will enforce Judge Francis' orders. I want to make it per-
fectly clear.

And that is it.

Mr. RiNALDO. What advice would you give if you had to give — in
a sentence or two

Mr. Chasens. Do not go to court unless you have a sympathetic
judge. That is what my article is about. After 8 years, we lost. I do
not want to be the Don Quixote of the grandparents. After the arti-
cle appeared in the paper, I had hundreds of calls and letters and
people said, "What should I do?" Go to your attorney. If you have a
sympathetic judge, fine; if not, you are wasting your money.

There should be an agency set up. What is the necessity of going
to court wasting their time, wasting our time. It is a human need.
You restrict the speed limits to 50. As I said before, we have hopes
and aspirations for our grandchildren. They are a part of our life.
They will always be, whether the ex-husband remarries — there
could be 10 or 12 grandparents, they are still our grandchildren.
Heirs of body should have precedence and consideration. If one
judge in his infinite wisdom gave you x amount of visitation, it is
inhuman and cruel to deprive you of that. After 3y2 years Judge
Grucio's decision was overruled by an inexperienced judge. To
quote, "I needed a heart surgeon; I got a proctologist."

Mrs. Chasens. Max is very emotional, more so than I, because I
know we go back to the same thing all the time. This man is a
father. He is not a grandparent. He has young children. As I think
somebody said down there, "How can they dispense the love and
the understanding? How do they know what it is to be a grandpar-
ent and to want to have visitation rights?" I said that when I was
too long on the comment, that the judge spoke to my granddaugh-
ter and told us she wants to see us, then he gives us four visita-
tions in 6 months. We got on the stand and with our lawyer said
we agreed that we did not want structured visitation any more be-
cause she is older and has different things that she has to do. I am
trying to tell you, it has to be structured in some form. You just
cannot say do whatever you want to do. Here we got an offering
and we cannot see her at any special time or any lenjgth of time.
That is the structured visitation.

Mr. RiNALDO. Mr. Kudler.

Mr. Kudler. What you are hearing is the results of years of
hardship. It makes it hard to answer questions, but I will answer
your question. I would suggest to somebody who was in our predic-
ament, find the best custody lawyer you can find and afford, some-
one knowledgeable about these cases who is prepared to fight for
you and not just take your money and walk away. And then you
better make damn sure that there is no political influence brought
to bear on the court.

Mr. RiNALDO. Thank you.

Mrs. Kudler. I do not think that the age of the judge is a crite-
rion, because it does not really matter.

Mr. BiAGGL The gentleman s time has expired.

Thank you very much, ladies and gentlemen, for your contribu-
tion today. As I said before, it is the basis for this committee
moving forward.

Mr. BiAGGi. The next panel is the panel of psychiatrist, Dr.
Arthur Kornhaber of New York and Dr. Andre Derdeyne of Virgin-
ia.

I have been asked by unanimous consent to insert into the record
a poem by Max Chasens concerning his grandaughter. Without ob-
jection, so ordered.

My Granddaughter

She Doesn't have a Sister or a Brother
And worse than that, lost her real loving Mother,
Yet her eyes are burning eagerly with a deep desire
To kindle that loving flame into a raging fire.

She feels that she must act for two

To ease the pain with a love so true.

And when her small hands caress your face

And pleading eyes say, "please let me try to take her place".

With this great love we have for each other,

"God bless dear old Gramps and my Mother's Mother.

So please don't let me go astray on this or any other memorable day,

I give to them for they are old and hungry for my love

For we are often thinking of our loved one who is watching from above.

PANEL 2— PSYCHIATRIC VIEWPOINT, CONSISTING OF DR.
ARTHUR KORNHABER, MOUNT KISCO, N.Y., PSYCHIATRIST AND
FOUNDER, FOUNDATION FOR GRANDPARENTS, COAUTHOR,
"GRANDPARENTS-GRANDCHILDREN, THE VITAL CONNECTION;"
AND DR. ANDRE DERDEYNE, PROFESSOR OF PSYCHIATRY, DI-
RECTOR, DIVISION OF CHILD AND FAMILY PSYCHIATRY, UNI-
VERSITY OF VIRGINIA SCHOOL OF MEDICINE, CHARLOTTES-
VILLE, VA.

STATEMENT OF DR ARTHUR KORNHABER

Dr. Kornhaber. Honorable Chairman and members of the com-
mittee, thank you very much for inviting me here today. I have
been studying the relationship between grandparents and grand-
children for over 8 years now and have traveled over the country.

I have submitted to Dr. Statuto a paper called Unwilling Grand-
parent-Grandchild Divorce, which examines the issue from a more
objective point of view and, two, emerged from talking to about 30
grandparents and grandchildren and parents involved in this issue.

Ms. Ferraro. Mr. Chairman, might I ask Dr. Kornhaber to give
the committee some idea of his background?

Dr. Kornhaber. I am a child and family psychiatrist and presi-
dent of the Foundation for Grandparenting. I started the Founda-
tion after writing a book entitled, "Grandparents and Grandchil-
dren, the Vital Connection."

I have studied the relationships between grandparents and
grandchildren in great depth. The main conclusions of the study of,
"Unwilling Divorce of Grandparents and Children," is that grand-
parents lose visitation rights with their grandchildren, because: One,
the importance of grandparents to grandchildren is unknown in
our society — and that includes judges and even people in the help-
ing professions; two, our society has no role for the aged, and wor-

ships physical beauty, socioeconomic and political power as an
ethic; three, our society ignores the importance of the family in
general, especially the three-generational family, and it also ig-
nores the role of emotional attachments in human happiness. In
such a society, grandparents and grandchildren are not important.

What I am interested in doing is talking about more than the un-
willing grandparent-grandchild divorce issue. As members of the
committee on

Mr. BiAGGi. Excuse me. Doctor.

You seem to be talking extemporaneously. That is perfectly
proper. Bearing that in mind, we will include your entire state-
ment in the record.

Dr. KoRNHABER. Since you are going to legislate and since you
are in an important position to change the emotional tone of this
country concerning the aged, I think I can give you some reasons
and some support and some ways to do this. I would like to first
share my findings about the importance of the relationship of
grandparents to grandchildren, what that relationship does for
both generations, and why it is important to all three generations.

In the natural order of things, generations emerge telescopically
one from the other genetically, every child is the sum of two par-
ents and four grandparents. The child in the womb possesses in-
stincts, temperaments and emotions that are not his or hers alone.
Psychologically, every child develops not only in the world of its
parents but within the larger world of its grandparents, of its fa-
ther's fathers and its mother's mothers.

There is a natural, organic relationship between the generations
that is based on biology, verifiable psychologically and experienced
as feelings through emotional involvement. What we found in our
8-year study is that our society does not honor this bond.

What I find marvelous about the people who are fighting to see
their grandchildren — of over 1,000 people in our study, only 100
grandparents were interested in grandparenting — is that they are
going against the national trend of shearing grandparents from
family structures.

Our society does not honor this bond. Indeed, many grandparents
have been sheared from the foundation of the natural three-gener-
ational family, leaving the nuclear family with surrogate grandpar-
ents, self-appointed experts, and paid strangers.

Where have all the grandparents gone?

If social theorists and government planners are to be believed,
many grandparents have shed their identities and joined the ranks
of the aged, all the more tragic because there are more grandpar-
ents alive today than ever before. In the next 60 years, demogra-
phers predict, the over-65 population will double. Because of this
graying of America and its effects on the economy, some experts
envision an era of unprecedented intergenerational strife in an
age-segregated society where the aged will no longer have the love,
respect, and support of their juniors. I am concerned about this.

Children who have been abandoned by their grandparents will
not be kindly disposed toward them. The social and emotional re-
sults of this abandonment are evident; a chaotic younger genera-
tion, a confused and harassed middle generation, and an unin-
volved older generation.

Our inquiry into the nature of the relationship between grand-
parents and grandchldren over the past 7 years has shown that not
only are grandparents and grandchildren important to one an-
other, they are indispensable for one another's emotional well-
being.

Three of the most important findings of our study show:

The grandparent-grandchild bond is second only in emotional im-
portance to the bond between parents and children.

Problems that are directly passed on from grandparent to parent
are not directly passed on from grandparent to grandchild. Nature
gives grandparents another chance. I think this is very important
for establishment of a law for this issue, because children will only
have problems with their grandparents for the most part because
their parents have problems with the grandparents. If the children
are isolated from the grandparents and they do not have direct
connection with their grandparents, when you put a grandchild
and a grandparent together, something wonderful happens.

Grandparents and grandchildren affect one another only because

they exist.

Some other findings of the study show that grandparenting is a
natural instinct rooted deeply within our biological make-up and
manifested by thoughts, feelings, and behavior. Before the grand-
child is born, a grandparent undergoes a mental rehearsal for the
role he will play as a grandparent. The way an individual views
grandparenthood is dependent upon his experience as a grandchild
and the way his society views the state of grandparentood.

Grandparenthood is not celebrated in an ageist society. When the
grandchild is born, special thoughts and feelings and behavior are
experienced by new grandparents. There are feelings of joy and a
real internal push to want to hold and to see that child, which is a
very biological need.

The children with vital connections are close to grandparents,
are very special and different from kids without grandparents. The
kids who have a close relationship to at least one grandparent bio-
logically, or even an elderly person, are different. They are deeply
rooted in the family and the culture, more patriotic, do better in
school, are emotionally secure in the knowledge that there are
many people who care for them. They are not ageists because they
have older people who love them. Indeed, they look forward to old
age because they feel there is a role for older people.

They are not sexist because grandmothers and grandfathers do
about the same things. These children have a role model for the
future and therefore do not fear old age. They have a sense of
social immunity, a place to go apart from their parents and the
peer group when they have problems. We call it an emotional sanc-
tuary. They feel a very powerful sense of pride and shame, some-
thing in children today that has disappeared. They know if they
don't do well in school they are going to dishonor their family and
dishonor and shame and pride is an ethic that is disappearing from
the American children because you have to have people to bounce
that off of, and grandparents have time to do this. Thus, these kids
believe in social order.

Grandparenting offers emotional work for the older generation.
This is natural work for older people. In our country we don't have
any other work for the elderly.

Grandparents have roles that are unique. They are similar to the
parent's role because grandparents can fulfill the role of parents.
They are different from parents' roles because a grandparent has
already been a parent, while a parent has not been a grandparent.
Grandparents' roles are diverse and dynamic. With time, their
roles grow in breadth and depth as the vital connection with a
grandchild becomes stronger.

At first, a grandparent's role is titular, conferred by the birth of
a grandchild. Immediately, a grandparent becomes a living ances-
tor and a role model for the child, a future template for the child's
own grandpaternity.

There is a person 94 years old in Appalachia who is wheeled out
to all the family occasions and he just sits there at the table and
blesses everybody. Kids love him. They love to touch him and they
love his wrinkles and he stands for something and doesn't really
have to do anything.

As a mentor, grandparents teach children things that they learn
nowhere else. When the child's parents aren't available grandpar-
ents play the role of nurturer, the second line of defense between
children and social agencies. Grandparents nurture grandchildren
indirectly by supporting their parents in time of need, especially
important in today's society which places great socioeconomic
stress on the parent generation. When grandparents and grandchil-
dren spend a great deal of time together, they become pals.

There is a young man in Nantucket who doesn't go to school be-
cause his grandfather is a fisherman and he skips school and goes
on the boat with his grandpa. His father was upset because his
grandfather took him in a bar and started drinking with him. But
it is an alliance between the generations — the old saying, they have
a common enemy, you know. These roles give fulfillment to elders'
lives. They are the culmination of a lifetime accumulation of
knowledge and wisdom and emotional experience applied to the
rearing of their young. It is, as Erik H. Erikson calls it, generati-
vity in its most basic form.

Concerning grandparent visitation rights, grandparents and
grandchildren belong together because they have a direct relation-
ship, exclusive from their all-important relationship to the middle
generation.

Mr. BiAGGi. Excuse me, Doctor. We are generally going to recess,
but this has been happening all morning and it is consuming an
awful lot of our time. I have read your testimony. I read testimony
at 3 o'clock this morning simply because I could not sleep. I read
everyone's testimony, but the other members and the staff mem-
bers would like to hear testimony. I would like unanimous consent
while we are going to vote that staff be authorized to conduct the
hearings.

Without objection, so ordered.

Mr. Blancato. Please proceed.

Concerning the issue of grandparents' visitation rights, it is
therefore obvious that grandparents and grandchildren have a
right to celebrate their relationship with one another as long as a

grandparent is capable of just being with their grandchild. This is
clear in light of the findings of our studies which show that grand-
parents rarely commit the same mistakes twice, they rarely hurt
their grandchildren.

Most children who were angry at their grandparents felt that
way because their parents were angry at their grandparents. Their
anger was most often due to the fact that they mirrored their par-
ents' perception of their grandparents. Left alone with their grand-
parents they were quite happy, although they were hesitant to
report this to their parents. It is therefore clear that in cases of
family feuds, where death or divorce creates blended famihes that
wish to divorce grandparents from their grandchildren, the law
should support the right of the child to have access to a beloved
grandparent. Thus we support a uniform grandparents' visitation
law for the following reasons: It establishes the importance of the
grandparent-grandchild relationship and the importance of the
three-generational family in American life, and it provides for rec-
onciliation and hopefully a continued visitation of the grandparent
and the grandchild during any type of litigation.

In other words, in no way should the visitation of the grandpar-
ent with the grandchild be stopped, and I strongly feel that the
way to do this is to have a strong grandparent visitation rights law
and subsequently to have any litigants referred to a family court of
people who are learned about the importance of the relationship
between grandparents and grandchildren, that visitation be contin-
ued, and then work from that point.

[The prepared statement of Dr. Kornhaber follows:]

IHE PREPARED STATEMENT OF DR. ARTHUR KORNHABER, MT. KISCO, N.Y., PSYCHIATRIST
AND FOUNDER, FOUNDATION FOR GRANDPARENTS, COARTHOR, "GRANDPARENTS-GRAND-
CHILDREN, THE VITAL CONNECTION."

The Vital Connection
livery time a child is born, a grandparent is born too. In

the natural order of thinps the generations emerge telescopic-
ally, one out of the other. Genetically, every child ia the sum
of two parents and four grandparents. The child in the womb al-
ready possesses instincts, temperament, emotions not his or hers
alone. Psychologically, every child develops not only in the
world of its parents but within the larger world of its grand-
parents, of its "father's fathers'" and its "mother's mothers*".

There is a natural, orgamic relationship between the generat-
ions that is based on biology, verifiable psychologically and
experienced as feelings through emotional involvement.

But unfortunately, for the most part, our society does not
honor this bond. Indeed, many grandparents have been sheared
from the foundation of the natural three-generational family,
leaving the "nuclear" family with "surrogate grandparents",
self-appointed "experts" amd paid strangers.

Where have all the grandparents gone? If social theorists
and government planners are to be believed, many grandparents
have shed their identities and joined the ranks of the "aged",
all the more tragic because there are more grandpgirents alive
today than ever before. In the next sixty years, demographers
predict, the over-65 population will double. Because of this
"graying of America" and its effects on the economy, some ex-
perts envision an era of unprecented intergenerational strife
in an age-segregated society where the aged will no longer
have the love, respect, and support of their juniors. Children
who have been abandoned by their grandparents will not be kind-
ly disposed toward them. The social and emotional results of

this abamdonment are evident; a chaotic yoiinger generation, a
confused and harrassed middle generation and an uninvolved older

(2)

generation. A humane and conscionable society must change

this deplorable state of affairs.

Are grandparents and grandchildren really important to one

another?

Our inquiry into the nature of the relationship between

grandparents and grandchildren over the past seven years

has shown that not only are grandparents and grandchildren

important to one another- they are indispensable for
one anothers emotional well-being.

Three of the most important findings of our study show: *
-The grandparent-grandchild bond is second only in emotional

importance to the bond between parents and children.
-Problems that are directly passed on from grandparent to

parent are not DIRECTLY passed on from grandparent to

grandchild. Nature gives grandparents another chance.
-Grandparents and grandchildren affect one another only

BECAUSE THEY EXIST.

More specifically our study showed that:

Grandparenting is a natural instinct rooted deeply within
our biological make-up and manifested by thoughts, feelings
and behavior. Before the grandchild is born a grandparent
undergoes a mental rehearsel for the role he will play as a
grandparent. The way an individual views grandparenthood is
dependent upon his experience as a grandchild and the way his
society views the state of grandparenthood. Grandparenthood
is not celebrated in an ageist society. When the grandchild
is born special thoughts and feelings are experienced by
Tiew grandparents. They also experience an overwhelming urge
to see and hold their grandchild. . .or to see a photograph
if they are far from the child. When these powerful feelings
are followed, and the new grandparent shares the child's
early life, and helps the childs' parent- a vital connection
is formed... an enduring emotional bond that is cemented
by time together and emotLclnl committment.

*For details see"Thc Vital Connection. Grandparents/
Grandchildren" by Arthur Kornhaber M.D. and Kenneth L.
Woodward. Doubleday /Anchor .

(3)

Children with vital connections to grandparents are special.

Chi| dren who have close relationships to at least one
grandparent arc different from those children with
intermittent or infrequent grandparent contacts Not only
are these youngsters deeply rooted in their family and their
culture, they are emotionally secure in the knowledge that
thef:E are many people who care about them. They are not
ageist because they have older people who love them. They
are not sexist because grandmothers and grandfathers do
about the same things. These children have a role model
for the future and therefore do not fear old age. They
have a sense of social immunity- a place to go apart from
their parents and the peer group when they have problems.
Grandparents offer grandchildren an emotional sanctuary from
the everyday world. Loved grandchildren feel a deep sense
of pride in their families and their nation. Thoy know
that their behavior reflects upon the many people who care for
them. Thus they are highly socialized.

Grandparents roles offer "emotional" work for the older
t^oncration.

Grandparents roles are unique. They are similar to the
parents role because grandparents can fulfill the role
of parents. They are different from parents roles because a
grandparent has already been a parent^ while a parent has
not been a grandparent. Grandparents roles are diverse
and dynamic. With time, their roles grow in breadth and depth
as the vital connection with a grandchild becomes stronger.
At first, a grandparents' role is "titular" .conferred by the
birth of a grandchild. Immediately, a grandparent becomes a
living ancestor and a role modelfor the child... a future
template for the childs own grandpaternity .
Once an intimate relationship is established grandparents
become family historians and archivists and a living link
to the past. As a mentor grandparents teach children things
that they learn nowhere else. When the childs parents
aren't available grandparents play the role of nurturer-
the second line of defense between children and social
* Only 10°'o of a national sample of over 700 children

(4)

agencies. Grandparents nurture grandchildren indirectly by
supporting their parents in time of need- especially important
in todays society which places great socio-economic stress
on the parent generation. When grandparents and grandchildren
spend a great deal of time together they become cronies-
pals. In a deep relationship grandparents become wizards
in the eyes of their young grandchildren. Wizards make
bread from flour and pull fish from water... and take their te'ith
c/Ut- wondrous things to young children.
These roles give fulfillment to Elders*lives . They are
the culmination of a lifetime accumulation of knowledge
and wisdom and emotional experience applied to the
rearing of their young. It is, as Erik H. Erikson calls it,
"generativity" in its most basic form.

Grandparent Visitation Rights
Thus grandparents and grandchildren belong together because

they have a direct relationship- exclusive from their

all important relationship to the middle generation.

Concerning the issue of grandparents visitation rights it

is therefore obvious that grandparents and grandchildren

have a RIGHT to celebrate their relaticnship with one another

as long as a grandparent is capable of just being with

their grandchild. This is clear in light of the findings of

our studies which show that grandparents rarely commit

the same mistakes twice... they do not hurt their grandchildren.

Most children who were angry at their grandparents felt that

way because their parents were angry at their grandparents.

Their anger was most often due to the fact that they mirrored

their parents perception of their grandparents. Left alone

with their grandparents they were quite happy, although they

were hesitant to report this to their parents.

It is therefore clear that iV cases of family feuds, where

death or divorce creates "blended" families that wish to

"divorce" grandparents from their grandchildren^ the law

should support the RIGHT of the child to have access to

a beloved grandparent, (see proposed Uniform Visitation Rights)

-The role of grandparent is not limited to that of biological
grandparent. Elders can also fulfill a "surrogate" grand-
parent role for the young and for themselves.

Grandparents Must Come Of Age In America

We live in an aging society that has no function for the
aged. Real grandparents- functioning grandparents- offer
many of the solutions to the problems of alienation and
generational separation that plague our society. Our
study shows that grandparent ing is the only human function
that supplies a pattern whereby the elderly, who fulfill
their role as grandparents, biological or not, can be loved

and respected and useful to their society. It is the
true and natural work of old age. Grandparents have only
to assume their rightful position as grandparent to their
family and elder in the community to assure themselves an
important place in their world and a meaning to the latter
part of their lives.

The Foundation For Grandparenting is dedicated to finding
ways to help grandparenthood become a celebrated rite of
passage and to raise the public consciousness concerning
grandparenthood as an important and natural life stage.
In addition we are designing projects that will demonstrate
the value of a multigenerational society where the old
and young work together .( See Centrum Project).
The federal government would do well to energetically
suppport such projects by setting up a department
of Intergenerational Studies and Projects, as a new agency
or under the aegis of an existing one, that would be
dedicated to re-knitting the generations and promoting
healthy and vibrant three-generational families. This
endeavor would not only supply "emotional" work for the
elderly but would create a nation of well-loved youngsters
who could change the emotional tone of America in only
twenty years. Our studies have demonstrated that this is
possible by giving each youngster dedicated and loving
elders and plenty of time with them. This is what the
Centrum is all about. This must be done before we raise a
generation of youngsters whose only knowledge of the elderly
will be the inane images offered to them by television.

Tel. (914) 24l-()682

I ( )l JNI )A I l( )N 1 ( )l< ( ;i<ANI )l 'AMI IN 1 IN< i

i(> Wcsi llyiiii Avcmic

Ml. Kis( (>. Nt'w York

Uniform GrandparentaJ Visitation Rights —

(1) Notwithstanding the award of any child by adoption, dependency,
custody, relinquishment, or otiierwise, ail children shall be entitled to have
reasonable grandparental visitation, and every grandparent shall be entitled
to reasonable visitation rights unless the court finds after a hearing that
visitation by a grandparent would endanger the child's physical health or
significantly impair his emotional development.

(2) The court may make or modify an order grant ing or denying grand-
parental visitation rights whenever such order or modification would serve
the best interests of the child; but the court shall not restrict a grand-
parent's visitation rights unless it finds that the grandparental visitation
would endanger the child's physical health or significantly impair his emo-
tional development.

(3) The term "grandparent" as used in the act shall include all of
the natural and adoptive parents of all of the child's natural and adoptive
parents .

Roger Stevens

Tel. (OI4) 241 (H>M2

i-ODNDAiioN ran {;i<ani)I'ai<i:n i inc;

lO \\«Sl ll>.lll AXCIUIC

MI. Kisco. New ^Ork
l()r>4«>

THE CENTRUM PROJECT

A Five-Year Demonstration Project Of The
FOUNDATION FOR GRAN DPAREN TING

I - The Problem

In contemporary America the generations live in different
worlds. Each generation, isolated within its respected social
stratxm: the young at school or in other caretaking institutions,
the middle generation engaged in the work world, and the elder
generation isolated unto itself. Many of today's children
are in a world peopled by too few adults.

People of different generations spend little time with
one another. The greater part of their time is spent among
their age-peers, thus bringing about an appalling similarity
of experience that fosters "ageism" and places generations in
adversarial roles. Young children are warehoused in day-care
centers at a time in their lives when they need deep, close,
reliable, and long-term relationships. In "centers" and schools
they are exposed to repeated separations from teachers, due to
staff turnover and grade promotion which prevents the forming
of close attachments.

Too often the classroom population is disproportionate
to the affordable teaching staff. The "factory" school system
is the primary mode of education available to our young today.
Childrens' emotional, spiritual and creative needs are not met

by such a system. Human, emotional values are insufficiently
taught in our technologically oriented schools.

The aged are isolated from the young by their own attitudes
and because there is no "life after work" for them. The wisdom
and experience they have accumulated over a lifetime has no
expression in our culture. After work there is little future
or need for elder Americans.

The middle generations are caught between their need to
parent and powerful socioeconomic pressures that often require
both parents to leave home to work - abandoning their children
to "paid strajigers."

With the increasing divorce rate, and more and more
"blended" families, generational stratification is increasing;
more and more grandparents are moving away from their families.
The roles that elders play for the young are being dissolved.
Research shows that language and tradition, hainded down from
grandparent to grandchild during the child's earjy years, is,
for the most part, being lost to the present generation of
youngsters who are being raised in greater and greater isolation
with the television set replacing people in their lives.
Grandparents/Grandchildren; The Vital Connection by Arthur
Kornhaber, M.D. and Kenneth L. Woodward documents these findings
in greater detail.
II - A Solution

The object of the Centrum is to bring the generations
together by fostering personal attachments and free-flowing
communication between the yoxing and the old. This is achieved

■3-

simply by having them all spend a great deal of time together
in the same place. It is in this type of emotional climate
that "vital connections" are formed. Not only are the "aged"
supplied with a "job" but the yoimg flourish and learn from
caring and attentive elders what they can learn nowhere else.
The knowledge that elders have accumulated over a lifetime can
be passed on to those who are more than eager for it.

Numerous other benefits are offered by a Centrum. It
is the optimum social environment for children who need adult
attention, i.e. children with learning disabilities, from
broken homes or no home at all. The "treaters" are the grand-
parents who will have the time to teach, nurture, and serve
as role models for the youngsters.

It is our hope that, one day, the Centrum concept will be
the primary model for elementary school education and for
community care of the young and the old in our society.
A - Structure

The Centriim will be housed in a large building with space
for the activities of several hundred people. This facility
may be a presently existing school or other suitable structure.
The "pilot" Centr\jm will accomodate eighty people. It will
have classrooms, assembly rooms, workshops, kitchen, an "attic"
and a "front porch." It will be near a park and a body of water
(where Grandpa can teach fishing).
B - Operation

Buses will transport the day-care children, school children,

and elders to the Centrum. The Junior High and High School
students who will also participate in Centrum life will be
bused in and out during the day. Parents will supply their own
transportation when they come to assist. The Centrum will
geographically occupy a prominent place in the community, with
easy access to other community institutions.
C - Staffing

The Centrum will be administered by a Director and
Assistant Director who will see to the operation of the
facility, assisted by a full-time secretary. The Director will
also be in charge of the research.

"Teams" of five children and one grandparent will be

formed, and every five "teams" assigned to a teacher. The

demonstration project will include seventy-five children, fifteen

elders, three teacher-supervisors, and one "rotating" teacher.

Of the seventy-five children not more than 30 percent will be

under the age of five. In addition, a volunteer staff from the

community and the junior and senior high and community colleges

will be encouraged to participate.

Grandparents will be encouraged to meet with the families

of their "grandchildren."

Grandparents will stay with the children until the children

are promoted to junior high school. Once promoted, they
will return to the Centrum to work with new youngsters and
to maintain contact with their "grandparents." Thus
children will not have to undergo unnecessary repeated
losses of teachers and grandparents they have come to love.

D - Program

As the Centrum is multigenerational , it will be like a

one-room schoolhouse in spirit:

Academic work will be emphasized, with a focus on doing

one's best rather than in competition with others.

Personal and creative skills - handcrafts, music, painting,

cooking and so forth - will be taught by grandparents.

Social and emotional skills will be augmented using the

grandparent as mentor. Language and ethnic history will be
stressed wherever possible.

Grandparents will serve as tutors for children who need

remedial work. No childs' individual needs will be ignored.
Grandfathers, particularly, will be recruited to supply the
young with the male role models so sorely lacking in our
society.

E - Research Syllabus

Ongoing clinical research will demonstrate the benefit of
the Centrum project. The children's I.Q.'s will be tested, and
other personality factors such as self-image, their feelings
about older people, their degree of alienation and depression.
School performance will be closely monitored.

Elders also will be tested for personality, self-image,
and depression.

Tests will be administered annually during the five-year
span of the demonstration project. The same tests will be given
to a control group of seventy-five children attending a "regular"
school. The control group will be an integral part of the
demonstration project.
Ill - Objective
A - Children

The Centrum's goal is to produce a generation of children

-6-

who have received the attention and caring of elders and who
have newly enjoyed all the benefits that the young reared by
grandparents have previously experienced. We speculate that
children attending the Centrum will feel loved and cared for;
they will be highly socialized aind will feel greater emotional
security and be better rooted in their society than their peers.
They will not be "ageist" nor fear old age. They will be exposed
to ways of doing things other than those offered by their
parents, their peers, or the media. Our research has amply
demonstrated these facts.
B - Elders

Older people will be "energized" by their contact with the
young. They will once again feel useful and needed. The
Centrum can give meaning to their lives , bolstering ego and
self-image, and even offer paid employment for "emotional" work.
C - Parents

The generation in the middle, the parents of the children,
will benefit from the feeling of security in knowing their children
are well tended in their absence. (The Centrum will be open from
81OO a.m. to 9iOO p.m.).
D - Community

The Centrum will become the emotional heart of the community.
We intend that it will reknit the generations and create a true
multigenerational society in which the young, the middle, and
the old mutually nurture and care for one another, each in their
own fashion Eind turn.

Arthur Kornhaber M.D.

K'ATlOrJALLY ACCLAIh.ED

No matter how grandparents act they affect the
emotional well being of their grandchildren, for better or
worse, simply because they exist.

Every time a child is born, a grandparent is born too.

"...a major contribution to self understanding in a world in
which everyone has been left reeling from the pace and
direction of social change over the past two generations."

. . .The Nation

"This is a new gospel song that we out to start singing
more frequently and louder. (The authors) have given us the
words and the music. Now to get them sung.

...Karl Menninger M.D.

"The case studies in this book represent a first foray
in an area left unexplained by developmental researchers.
There are lessons here for social scientists, but even more
for our alienated society."

...Prof. Urie Bronfenbrenner

"...a story of love that is rarely told and never more
convincingly or lovingly." Prof. Phillip Zimbardo

"...a landmark study." Sanford I.Finkel M.D.

"...appealing and timely." Psychology Today

For the first time, Grandparents/Grandchildren examines
the nature of the relationship between grandparents and grand-
children and its expression in contemporary American society. The
Agenda for grandparents is a clarion call for grandparents
to assume their place as the foundation of the three generat-
ional family- and tells them how to do it.

GRANDPARENTS
GRANDCHILDREN

ylTHEViTAL CONNECTION!^

ARTHUR KORNHABER. MP
AND KENNETH LWOODWARD

To order, mail coupon ta ; Please send me copies of

Generations /Js '■ Grandparents/Grandchildren

@ $11.95 per copy and $2.00

P.O. Box 363

Cross River N.Y. IO5I8

Zip Code
New York City residents add sales tax.

for postage and handling.

Nsime

Address

City

Mr. Blancato. Dr. Derdeyne.

STATEMENT OF DR. ANDRE DERDEYNE

Dr. Derdeyne. I appreciate the opportunity to address the staff
members of this committee.

Mr. Blancato. It is no less important in terms of the fact that
the hearing record is complete.

Dr. Derdeyne. Please permit me the joke. This is, however, not a
joking matter. There certainly have been plenty of tears, sadness,
fury, and tales of injustice here. I am a bit concerned in that I see
myself as providing some balance here, which in view of what else
has gone on today, will probably be perceived by some of the people
here as being hostile to the grandparent rights movement. It is not,
but please bear with me.

I am a child psychiatrist. I am director of the child and family
psychiatry training program at the University of Virginia. As time
goes on, my work has revolved more and more about divorce, and
about the complexities of the family regarding divorce. I am pri-
marily a child psychiatrist. On those occasions when I go to court I
make certain that I am a witness for the court. I see all parental
parties. I do not go to <;ourt to help one parent win a custody suit
against another, but in order to do the best I can for the child in-
volved. Preferably, I am able to keep people from litigating the cus-
todial issue. I attempt to make certain the court date leaves us 2 or
3 months so that there is time to work things out with all the
people involved.

grandparents visitation: the spectrum from healthy family
relationships to the exercise of rights

If one leaves the word "right" out of it, the term "grandparent
visitation" has a wholesome sound to it.

Continuing contact between grandparents and grandchildren is
part of the normal course of family life. When we consider grand-
parent visitation as a legal issue, however, the situation changes
markedly. The law of grandparent visitation, as well as other cus-
tody and visitation law, defines the bottom line in relationships.
Law which regulates human regulations is necessarily a blunt in-
strument because it deals in relationships that have failed, where
the finely tuned reciprocal aspects have ceased to function.

Visitation laws and visitation determinations by courts are re-
flective of difficult contentious situations. The visitor is effecting a
forced entry over the resistance of the custodial parent.

Continuing contact of grandparent and grandchild may be in-
sured by successful litigation, but the adults' struggles, anger, or
residual resentment can have some very unfortunate consequences
for the child, which brings us to the central issue which I wish to
bring to the attention of this subcommittee, the conflict of loyalties.

conflict of loyalties

In a book titled "Beyond the Best Interests of the Child," child
psychoanalysts Anna Freud and Albert Solnit, and a professor of
family law, Joseph Goldstein, articulated their concerns about the
loyalty conflict for children after divorce. Their comments pertain

to the parents, but the principle of conflict between a parent and
an emotionally close grandparent would be the same. The authors
state that:

Children have difficulty in relating positively to, profiting from, and maintaining
the contact with two psychological parents who are not in positive contact with each
other.

I might add that in a couple of the cases that people have told
about, at this hearing, were the law to go along with Goldstein,
Freud and Solnit's recommendations about psychological parent-
hood, these cases would not come under grandparent visitation
problems, but under custody issues, and the people telling their sto-
ries here would from the facts presented clearly be given custody of
the child because they were the psychological parents and provid-
ing a good home. These people Goldstein, Freud, and Solnit, are not
as radical as they might seem.

These authors accord to the loyalty conflict such importance that
they would have the custodial parent entirely in control of visita-
tion, whether with the noncustodial parent, grandparents, or
others. This holding has been subjected to considerable criticism. In
the second edition of "Beyond the Best Interests of the Child," the
authors elaborated their position on visitation:

We reasoned, always from the child's point of view, that custodial parents, not
courts or noncustodial parents, should retain the right to determine when and if it
is desirable to arrange visits. We took and continue to take this position because it
is beyond the capacity of courts to help a child to forge or maintain positive rela-
tionships to two people who are at cross-purposes with each other because, by forc-
ing visits, courts are more likely to prevent the child from developing a reliable tie
to either parent; and because children who are shaken, disoriented, and confused by
the breakup of their family need an opportunity to settle down in the privacy of
their reorganized family with one person in authority upon whom they can rely for
answers to their questions and for protection from external interference.

This society and its courts find this view quite unacceptable be-
cause it runs so counter to the interests of the adults to have con-
tact with their children. However, these authors' ideas regarding
children's loyalty conflicts reflect immensely important issues to
any child attempting to relate to important adults who are in con-
flict with each other.

I offer two examples of children involved in their parents' diffi-
culties. The first comes from Henry James in his 1906 work, "What
Maisie Knew". This novel sensitively describes a situation of a
young girl caught in the conflict of her parents. Custody was split
between her parents, 6 months with one and 6 months with the
other.

They had wanted her, not for any good they could do her but for
the harm they could, with her unconscious aid, do each other. She
should serve their anger and seal their revenge, for husband and
wife had been alike crippled by the heavy hand of justice which, in
the last resort, met on neither side their indignant claim to get, as
they called it, everything. If each was only to get half, this seemed
to conclude that neither was so base as the other pretended or, to
put it differently, offered them as both bad indeed since they were
only as good as each other.

The mother had wished to prevent the father from, as she said,
so much as looking at the child. The father's plea was that the
mothers's slighted touch was simply contamination. These were the

opposed principles in which Maisie was to be educated; she was to
fit them together as she might.

The second example is that of a child in my own practice. This
markedly depressed 8-year-old boy had been overwhelmed for the
past 3 years by the intense postdivorce struggles of his parents.
This included things like when his father appeared at the end of
season soccer picnic, his mother became furious and made him
come home.

Upon being asked three wishes, he said that he would like a time
machine in order to go back in time. When I asked if that was so
that he could go back to make his parents' marriage better, he
tearfully responded that it was. He had no other wishes. Instead of
this 8-year-old entering the expanding world of friendships, soccer,
and whatever; he spent most of his time concerned with, preoccu-
pied with, and fearful of the conflict between his parents.

These examples have to do with the divorce of parents; the posi-
tion of the child, however, is similar in any situation where the
child is trying to relate to psychlogically important adults who in
Goldstein, Freud, and Solnit's terminology "are not in positive con-
tact with each other." The child's feelings of distress arise from his
or her internal conflict, which feels the same whether it relates to
two parents or to a parent and a grandparent who are in conflict.

Children caught in even the mildest conflict between their di-
vorced parents frequently volunteer or acknowledge their percep-
tion that their being with one parent makes the other parent mad
or sad. In some more severe instances, the pain to the child of
going from one parent to the other is so great that the child comes
to wish to stay with one parent and not to visit the other because
of the relief from internal turmoil.

WHAT IS IN THE BEST INTEREST OF THE CHILD IN GRANDPARENT

VISITATION

First of all, the ideal situation for the child is for all the adults to
maintain communication with each other and to be able to cooper-
ate with each other with regard to the child. This facilitates the
child's being able to maintain contact with grandparents and
others of importance from the past. If that situation does not
obtain, then the first response might be to seek help from a thera-
pist or another helping person who might be able to gain the confi-
dence of all the adult parties. What is being strongly advocated in
this hearing, of course, is that the grandparent go to legal means to
achieve visitation.

Whether grandparent visitation is awarded or not depends upon
the court's assessment of the value of continuing the child's rela-
tionship with the grandparent weighed against the amount of dis-
ruption to the child's immediate family unit and the amount of
animosity the various adults hold for each other. This approach ap-
pears to me reasonably suited to deal with the major issues in-
volved. However, I think that courts do not sufficiently appreciate
the significance and destructive potential of loyalty conflicts to the
child, whether it is parent against parent or parent against grand-
parent.

Although important relationships between grandparents and
grandchildren can be salvaged by legal means, under these types of
circumstances what is achieved can be far less than ideal. Contact
with grandchildren achieved by less adversary means is surely
more satisfactory and more likely to be maintained through the
years than it is after a successful legal assault.

RECOMMENDATIONS

Concerns grandparents have about losing contact with their
grandchildren after divorce, death, or other family disruption af-
fecting the children's parents are certainly understandable, to say
the least. I remain concerned, however, about grandparents joining
what is all too often a postdivorce legal brawl already involving the
child's parents.

All of you know perhaps personally, and maybe through contact
with friends or other people, what marital separation, for example,
does to many people. How many nice, capable, friends do you have,
who are so distressed, so upset, that they engage in bizarre, angry,
or furious, behavior, which is destructive not just to others but also
to themselves.

The changes in the field of child custody and visitation in the
United States which have occurred over most of the last 300 years
have evolved gradually as part of other social changes. In contrast,
laws upholding grandparents' rights to visitation have burst quite
recently upon the scene.

What happens when grandparents are successful in gaining
access to children, to use the legal term, as a result of emotionally
charged and expensive legal contests?

What happens when they fail? When I wrote this I had not
heard the testimony of this morning, but it is obviously horrifying
to the people who have told their stories in this hearing.

Are there other approaches with less destructive potential than
the legal one?

Dr. Kornhaber has presented his impression that grandparents
as a group are particularly able to remain above the postdivorce
fray and thereby are able to contribute positively to their grand-
children. Indeed, in instances where parental contention is high or
parental functioning is impaired by depression, which are common
situations, grandparents may be in a unique position to provide
their grandchildren a very necessary emotional haven.

In my own experience, grandparents' roles after their child's di-
vorce have varied from very constructive ones to being completely
caught up in attacking their child's former spouse or even attack-
ing their own child, with grave consequences for their grandchil-
dren. What characteristics differentiate grandparents whose roles
are more likely to be constructive from those whose contributions
are more likely to detract from their grandchild's well-being?

In Mrs. Highto's comments earlier, in which she spoke about
grandparent's suffering from the parental generation's cruelty,
hate, spite, and vengeance, she should have included grandparents
exhibiting cruelty, hate, spite, and vengeance also, because grand-
parents have those emotions too. In these types of situations we are
so threatened, we are shaken to the roots of our identity and our

being, and we get extremely mean and irrational, and this capacity
is possible for all of us. We are all human.

THE NEED FOR RESEARCH

In sum, this is an area where the need for scientific study of the
issues far exceeds the need for more changes in the State or Feder-
al legal structure or practice. What is needed at this time is fund-
ing for comprehensive and expert research to provide answers to
some of the questions posed above, and a host of others.

OTHER APPROACHES TO ENHANCING THE GRANDPARENT-GRANDCHILD

BOND

On the other hand, I do not question the value to children of con-
structive grandparental involvement, and see great value in explor-
ing other than strictly legal ways to enhance grandparent involve-
ment and contact with their grandchildren. I see this as psychologi-
cally helpful in most instances to all the persons involved as well
as providing a link with the past which is valuable for individuals
as well as for our society as a whole.

I could also give a speech here about the positive aspects of
grandparents to grandchildren, grandchildren to grandparents, and
a few testimonials from my own family, but we don't need that.
Sufficient to say, these are terribly important issues and horrible
things are lost to everyone when they are lost. My concern is, can
we simply pass a law and regain them?

Dr. Kornhaber has found probably the best way to facilitate the
continuing contact of grandparents and grandchildren. His book is
reminding the lay public as well as therapists of the importance
grandparents and grandchildren can have for each other. This ap-
proach offers an impetus for change which introduces less potential
for mischief than do coercive methods.

I think that in-spite of the pain and hopes of most of the people
in this group here, establishing legislation will not adequately solve
their problems. I must say that in this area, and the area of family
law as a whole, I see too many instances where today's solution be-
comes tomorrow's problem. We are stuck with immensely difficults,
complex human emotions having to do with loss and the inability
to tolerate it, to be very constructive when awful situations occur
such as have been described here today.

I do not think that the major solution is going to come out of the
legal system. I do not see how it can. These are not legal issues.

Thank you.

Mr. Blancato. Thank you. Doctor.

I think under the terms of the unanimous consent agreement
that was made by the chairman, we will assume the definition of
conducting a hearing to be to continue to receive the testimony of
the witnesses. If the two of you can remain behind in the event
that the members when they return would like to ask questions —
or we may ask you to respond to some questions in writing that we
have prepared.

We would like to call the final panel at this point, and, if you
gentlemen can wait, we will reserve some questioning for them.

The legal panel: Mr. Richard Victor and Dr. Judy Areen.

I am going to take the liberty, if I may, to request of the chair-
man and also in appreciation and recognition of Dr. Areen's time
constraints, which have been prevalent for several hours now, that
she precede Mr. Victor in giving her formal statement.

Dr. Areen?

PANEL 3— LEGAL VIEWPOINT, CONSISTING OF RICHARD S.
VICTOR, ATTORNEY, OAK PARK, MICH.; AND JUDITH AREEN,
PROFESSOR OF LAW, AND PROFESSOR OF COMMUNITY AND
FAMILY MEDICINE, GEORGETOWN UNIVERSITY MEDICAL
CENTER

STATEMENT OF PROFESSOR JUDITH AREEN

Professor. Areen. I will present a summary of my statement.

I understand there is permission to submit my full statement for
the record.

Mr. Blancato. Without objection.

Professor Areen. It is with great pleasure that I appear before
this subcommittee because you are dealing with a subject of great
importance — as all our speakers have underlined — ties between
grandparent and grandchild. The Justices of the Supreme Court
have, in fact, recognized the importance of this relationship.

Let me share with you briefly some of their words from a 1977
decision.

. . . Our decisions establish that the Constitution protects the sanctity of the
family precisely because the institution of the family is deeply rooted in this Na-
tion's history and tradition. It is through the family that we inculcate and pass
down many of our most cherished values, moral and cultural.

Ours is by no means a tradition limited to respect for the bonds uniting the mem-
bers of the nuclear family. The tradition of uncles, aunts, cousins, and especially
grandparents sharing a household along with parents and children has roots equally
venerable and equally deserving of constitutional recognition.

If your task were simply to provide support for such extended
family ties in the face of unwanted government intrusion, as was
the case in Moore v. City of East Cleveland, my talk would be
briefer and your day shorter. But you are faced with the much
more difficult problem of deciding what is an appropriate response
by the government when there is a conflict between the members
of a particular family.

As a general guide, I would urge adherence to that familiar
standard of doing what is in the "best interests of the child." While
it has been widely — and I would add appropriately — criticized for
being too vague, the best interests standard does at least direct the
focus of concern to the child who is the person likely to suffer most
when there is a conflict between adult members of a family.

It is possible to apply the standard in ways that make it less
vague, moreover. This is a way to constrain some of the abusive
discretion by individual judges that we have heard described this
morning.

I would suggest that the subject of grandparent visitation might
be addressed by several well-chosen presumptions which are a way
of restraining judicial discretion. For example, when a child has de-
veloped normally, and both parents and all grandparents are fit
caretakers, it would seem sound to presume that a parent's wish to
have the child visit with that parent's parents should be given pre-

sumptive weight even in the face of objections from that parent's
former spouse. Notice that I am recommending a presumption. It
could and should be rebutted in situations in which the former
spouse proves to the court that contact between the child and
grandparents in question would not be good for the child.

Why have I used words like "presumption," "prove," or "rebut-
ted", which all have the ring of courtroom to them? It is prcisely
because the courtroom remains in our system of government the
forum of last resort for families who cannot resolve their disputes
privately.

Clear presumptions that are followed in applying the standard in
courts, of course, can decrease rather than increase litigation, by
making clear to family members beforehand what most probably
would happen if they were to go to court.

Given the cost of litigation in time and emotions, as well as
money — as we have heard described again and again this morn-
ing— many will choose, and I submit that would be a positive
change, to follow the presumptions in their private negotiations.

This is a way mediation might be implemented. If you can medi-
ate a solution acceptable to the parties on the private basis, it is
preferable to going to court.

We also have to consider, however, what happens when the medi-
ation breaks down. That is why the courts are the forum of last
resort.

The proper application of the best interests standard is less clear
when one parent dies, for then he cannot indicate directly his
views on whether his parents should be able to see his child. Indi-
rect evidence may be available, however, and if it demonstrates to
the court that the parent would appear to have wanted contact to
continue after his death, then the same presumption I advocated
above when a living parent supports contact, appears appropriate.

Any presumption in favor of continued contact should be
strengthened, moreover, in my view, when there is evidence that
the grandchild has established a relationship with a particular
grandparent.

For many years, unfortunately, most courts in this country have
held that grandparents may not be granted visitation rights unless
the custodial parent is proven unfit. Fortunately, a growing
number of State legislatures, sympathetic to the value of contact
with grandparents, have passed statutes in the last dozen years
that establish a right of visitation for grandparents. These statutes
do not condition the right on proving the custodial parent unfit,
but only on proving that the visitation is in the best interests of
the child involved.

More than 40 States have now passed statutes on this issue. Let
me refer briefly to three that I set out at length in my written tes-
timony.

California's statute is of interest because it applies not only to
grandparents but to any other person having an interest in the
welfare of the child. There may be situations where it might be an-
other relative or even a biologically unrelated person who has been
so important to that child that visitation is appropriate.

Second, the Connecticut statute anticipates one of the issues
raised earlier this morning by applying to children who are illegit-
imate and acknowledging biological ties even in that situation.

Finally, the Minnesota statute, the most comprehensive of the
three that I include for your information, struck me as important,
first because it applies not only to grandparents, but to greatgrand-
parents.

As someone who has grandparents who are 95 and 93, and in
good health in Vandalia, Ohio, and 2-year-old son, I would want
their rights protected as well as those of my parents.

In addition, Minnesota specifically recognizes strong protection
when the children have lived with their grandparents for a year or
more, a provision that I think would have resolved differently at
least one of the cases we have heard described today.

Until now, I have been addressing the problem of what should
happen when the parents or guardians of a particular child are in
disagreement about whether there should be contact between a
grandparent and grandchild.

The difficult issue of how best to implement such policies re-
mains. We need procedural as well as substantive reforms.

Most courts have not granted access to courts to grandparents
after a divorce. Fortunately, the statutes I have already alluded to
in many States do permit intervention by the grandparents even
after divorce.

Unfortunately, though, a number of these statutes have not yet
addressed the problem of what should happen when a custodial
parent remarries and the new spouse adopts the child. Adoption
statutes, you understand, generally cut off all legal ties to a child's
biological parent and family.

Although these statutes were aimed primarily at resolving issues
of inheritance, a number of courts — mistakenly, in my view — have
construed them to cut off the visitation rights of the grandparents
as well.

A notable exception is a decision of the Supreme Court of New
Jersey, in Mimkon v. Ford, decided in 1975, where that court, faced
with the conflict between, on the one hand, a statute that permit-
ted visitation to grandparents, and, on the other, an adoption stat-
ute that appeared to cut them off, reached the conclusion that visi-
tation should be permitted after adoption.

Let me quote a little bit of their explanation, because it summa-
rizes my own thoughts on the issue.

. . . Interference by a natural parent with the relationship between the child and
the adopting parents introduces alternative and conflicting authority figures in the
child's life, creating tremendous emotional tension on the child and ultimately
threatening to undermine the authority of the adoptive parents and their ability to
make parental decisions. Grandparents ordinarily play a very different role in their
child's life; they are not authority figures and do not possessively assert exclusive
rights to make parental decisions. At best they are generous sources of uncondition-
al love and acceptance, which complements rather than conflicts with the role of
the parents. . . .

It is biological fact that grandparents are bound to their grandchildren by the un-
breakable links of heredity. It is common human experience that the concern and
interests grandparents take in the welfare of their grandchildren far exceeds any-
thing explicable in purely biological terms. . . .

In view of this, we can only say that it is proper that in the unfortunate case of
parental separation or death, grandparents should sometimes have privileges of visi-

tation even over the objections of the adoptive parents. It is not only the grandpar-
ent's continued right to be with him, but also the fact that in such cases, the con-
tinuous love and attention of a grandparent may mitigate the feelings of guilt or
rejection which a child may feel at the death of or separation from a parent, and
ease the painful transition.

I have focused until now primarily on the positive aspects of
grandparent visitation. But even the New Jersey Supreme Court
cautioned that such visitation should be authorized over parental
objections only when it would be in the best interests of that par-
ticular child, warning that courts should not permit visitation by a
particular grandparent when it would undermine the authority of
the adoptive parents or otherwise create psychological conflict for
the child.

Justice Sullivan dissented from the majority position, noting:

Here the trial judge ordered . . . visitation over the objections of the child, as
well as the child's father and adoptive mother who felt that [the grandmother] has
been a disruptive influence in their family unit. ... It may be that the child has
been conditioned against her grandmother. If so, this is to be regretted, but if nur-
turing the relationship between grandparent and grandchild is to be had at the ex-
pense of the child's well being and the family unit in which she now lives, I have no
doubt as to what a court should do.

Justice Clifford, in dissent, added:

Given the objection to visitation — be it well-taken or otherwise — I foresee contin-
ued acrimony between the parties and a tug-of-war with Jill in the middle. . . . Ju-
dicial interference in this sensitive area should generally be undertaken only with
the greatest hesitancy and in this case not at all.

This division among thoughtful decisionmakers should, if nothing
else, caution us against rigid or mechanical approaches to intrafa-
mily conflicts.

To sum up my personal recommendations, I believe the trend of
the last dozen years to permit grandparent visitation when it is in
the best interests of the grandchild should be praised and indeed
extended to those few States that have not yet passed appropriate
statutes.

Indeed, I would recommend amending those existing statutes
which do not at present establish presumptions in favor of visita-
tion in the conditions I have outlined above.

I would also modify existing adoption statutes to permit grand-
parent visitation following adoption by a stepparent, the position
espoused by the majority of the New Jersey Supreme Court in
Mimkon v. Ford.

At the same time, I want to underscore the importance of always
making these decisions in the context of the lives of a particular
child and a particular grandparent. The law can coerce outward be-
havior, but if the price is excessive psychological turmoil for one
child, it is too high.

In view of the complex nature of the issue you are addressing
today, it becomes even more important to determine what is the
most appropriate role for the Federal Government to play. On the
one hand, both the variation in, and relatively recent date of. State
legislative protection for grandparent visitation suggest it would be
easier if we had a single, national standard.

On the other hand, child custody matters have traditionally been
left to the States. The one Federal statute that touches this area
was explicitly intended to avoid inconsistent decisions by the courts

of two or more States involving the custody of one child. The lack
of Federal standards governing custody decisions reflects an impor-
tant constitutional constraint: even if Congress wanted to act, it
does not appear to have the constitutional authority to mandate
standards for child custody or visitation.

There remains the role of providing guidance to States. It has
been proposed, by some, that Congress might fund the drafting of a
model act.

While that step does not pose constitutional hurdles, it also may
not accomplish much other than providing Federal funds to a con-
sultant or two in view of the rather dismal history of model acts
drafted by the Government ever being adopted by States.

There is, by contrast, a quite distinguished record that has been
compiled by the National Conference of Commissioners on Uniform
State Laws, not because they are necessarily any wiser, but be-
cause the very process of working a problem through that body,
composed as it is of judges, law teachers and members of the bar
from each of the States, the District of Columbia, and Puerto Rico,
insures both national exposure, and a test of whether a proposal is
politically viable.

In 1965, the conference began work on a Uniform Marriage and
Divorce Act. Unfortunately, that act, while it establishes standards
and procedures for determining custody and visitation, deals only
with visitation by parents. Visitation by grandparents — or any
other adults who have developed strong ties with a child — is not
discussed at all.

At this point in time, seven States have adopted the UMDA. A
useful next step might be to encourage the conference to revise the
UMDA.

I was delighted to hear the chairman of this subcommittee indi-
cate he was going to use his influence to urge the conference to
revise the UMDA or even to promulgate a separate, new uniform
act that deals specifically with the issue of grandparent visitation.

In the end, our Constitution provides that there is no shortcut to
persuading the legislature and the bench in each and every State,
and the District of Columbia, to provide adequate protection for
grandparent visitation, not simply for the sake of grandparents, or
even because it will benefit the grandchildren, but because we will
all be strengthened in this Nation if we both acknowledge and sup-
port family ties across the generations.

[Professor Areen's prepared statement follows:]

Prepared Statement of Judith Areen, Professor of Law and Professor of Com-
munity AND Family Medicine, Georgetown University, Georgetown Universi-
ty Medical Center

It is with great pleasure that I appear before the subcommittee today because you
are addressing a subject of such great human significance — the ties between grand-
parent and grandchild.

The Justices of the United States Supreme Court, in a plurality opinion, under-
scored this significance in 1977 when they observed:

"... Our decisions establish that the Constitution protects the sanctity of the
fgimily precisely because the institution of the family is deeply rooted in this Na-
tion's history and tradition. It is through the family that we inculcate and pass
down many of our most cherished values, moral and cultural.

Ours is by no means a tradition limited to respect for the bonds uniting the mem-
bers of the nuclear family. The tradition of uncles, aunts, cousins, and especially

grandparents sharing a household along with parents and children has roots equally
venerable and equally deserving of constitutional recognition. Over the years mil-
lions of our citizens have grown up in just such an environment, and must, surely,
have profited from it. Even if conditions of modern society have brought about a
decline in extended family households, they have not erased the accumulated
wisdom of civilization, gained over the centuries and honored throughout our histo-
ry, that supports a larger conception of the family." Moore v. City of East Cleveland,
431 U.S. 494 (1977)

If your task were simply to provide support for such extended family ties in the
face of unwanted government restrictions, as was the case in Moore v. City of East
Cleveland, my talk would be briefer and your day shorter. But you are faced with
the much more difficult problem of deciding what is an appropriate response by the
government when there is a conflict between the members of a particular family.

As a general guide I would urge adherence to that familiar standard of doing
what is in the "best interests of the child." The best interests standard has with
good reason become the universal principle followed by courts in this country for
resolving conflicts over custody of, or visitation with, children. While it has been
widely criticized for being too vague, the best interests standard does at least direct
the focus of concern to the child who is the person likely to suffer most when there
is a conflict between adult members of a family.

It is possible to apply the standard in ways that make it less vague, moreover. I
would suggest that the subject of grandparent visitation might be addressed by sev-
eral well chosen presumptions. For example, when a child has developed normally,
and both parents and al' grandparents are fit caretakers, it would seem sound to
presume that a parent's wish to have the child visit with that parent's parents
should be given presumptive weight in the face of objections from that parent's
former spouse. Notice that I am recommending a presumption. It could and should
be rebutted in situations in which the former spouse proves to the court that con-
tact between the child and grandparents in question would not be good for the child.

Why have I used words like "presumption," "prove," or "rebutted" which have
the ring of courtroom to them? It is precisely because the courtroom remains the
forum of last resort for families who cannot resolve their disputes privately. Clear
presumptions that are followed in applying the best interests standard in courts, of
course, can decrease rather than increase litigation over such issues, by making
clear to family members before hand what most probably would happen if they were
to go to court. Given the cost of litigation in time and emotions as well as money,
many will choose, therefore to follow the presumptions in their private negotiations.

If the parent who opposes contact with a grandparent is the child of that grand-
parent, by contrast, my sense is that the presumption should be against visitation.
Why do I advocate a difference in result depending on which parent opposes? Be-
cause both presumptions reflect the common standard of allowing a parent to decide
whether or not his parents should see his child. This standard in turn is a way of
minimizing interference in a parent's rearing of his child, even by a former spouse.

The proper application of the best interests standard is less clear when one parent
dies, for then he cannot indicate directly his views on whether his parents should be
able to see his child. Indirect evidence may be available, however, and if it demon-
strates to the court that the parent would appear to have wanted contact to contin-
ue after his death, then the same presumption I advocated above when a living
parent supports contact, appears appropriate.

Any presumption in favor of continued contact should be strengthened, moreover,
in my view, when there is evidence that the grandchild h.as established a relation-
ship with a particular grandparent. Conversely, evidence of an especially strong re-
lationship between a grandparent and grandchild might be sufficient to overcome
an objection even by the parent who is the child of that grandparent.

For many years, by contrast, most courts in this country have held that grandpar-
ents may not be granted visitation rights unless the custodial parent is proven
unfit. 1 Fortunately, a growing number of state legislatures, sympathetic to the

> Succession of Reiss, 46 La. Ann. 347, 15 So. 151 (1894) is generally recognl^d as the first
case in which a grandparent actually sued for visitation privileges. The request was denied on
two grounds: (1) a parent's obligation to allow a child is a moral but not a legal one; and (2)
absent a showing that the custodial parent is unfit, the court should not order visitation. For
more recent holdings see, e.g., Jackson v. Fitzgerald, 185 A.2d 724 (D.C. Mun. Ct. App. 1962); Lee
V. Kepler, 197 So.2d 570 (Fla. Dist. a. App. 1967); Smith v. Painter, 408 S.W.2d 785 (Tex. Civ.
Apps. 1966). See generally Note, Statutory Visitation Rights of Grandparents, 26 Cath. U. L.
Rev. 387 (1977).

value of contact with grandparents, have passed statutes in the last dozen years
that establish a right of visitation for grandparents. These statutes do not condition
the right on proving the custodial parent unfit, but only on proving that the visita-
tion is in the best interests of the child involved.

More than forty states have now passed statutes on this issue. A closer look at
three of them will give you a good idea of the range of approaches adopted.

California has two relevant statutes. Civil Code § 197.5 applies when one parent is
deceased. It provides in pertinent part:

"(a) If either the father or mother of an unmarried minor child is deceased, the
children, parents, and the grandparents of such deceased person may be granted
reasonable visitation rights to the minor child during its minority by the superior
court upon a finding that such visitation rights would be in the best interests of the
minor child.

"(b) In granting visitation rights to j)ersons other than the parents of the dece-
dent, the court shall consider the amount of personal contact between such persons
and the minor child prior to the application for the order granting them visitation
rights.

"(c) This section shall not apply if the child has been adopted by a person other
than a stepparent or grandparent. Any visitation rights granted pursuant to this
section prior to the adoption of the child shall be automatically terminated upon
such adoption."

When the parents are divorced but not dead, California provides in Civil Code
§ 4601:

"Reasonable visitation rights shall be awarded to a parent unless it is shown that
such visitation would be detrimental to the best interests of the child. In the discre-
tion of the court, reasonable visitation may be granted to any other person having
an interest in the welfare of the child."

Connecticut, by contrast, provides for grandparent visitation even when the par-
ents are not divorced or dead. General Statute § 46b-59 provides:

"The superior court may grant the right of visitation to any grandparent or
grandparents of any minor child or children, upon an application of such grandpar-
ent or grandparents, whether or not such child or children are legitimate, except
the court may not make an order with respect to the parents of the father of any
illegitimate child or children unless the father has acknowledged paternity in writ-
ing, has been adjudicated the father by a court of competent jurisdiction or has con-
tributed regularly to the support of the child or children. Such order shall be ac-
cording to the court's best judgment upon the facts of the case and subject to such
conditions and limitations as it deems equitable, provided the grant of such visita-
tion rights shall not be contingent upon any order of financial support by the court.
In making, modifying or terminating such an order, the court shall be guided by the
best interest of the child, giving consideration to the wishes of such child if he is of
sufficient age and capable of forming an intelligent opinion. Visitation rights grant-
ed in accordance with this section shall not be deemed to have created parental
rights in the person or persons whom such visitation rights are granted. The grant
of such visitation rights shall not prevent any court of competent jurisdiction from
thereafter acting upon the custody of such child, the parental rights with respect to
such child or the adoption of such child and any such court may include in its
decree an order terminating such visitation rights."

Minnesota has the most comprehensive statute of the three, applying as it does to
great-grandparents as well as grandparents. It also contains special provisions for
deceased parents, divorce, and children who have lived with their grandparents for
a year or more. Specifically, Minnesota Statute 257.022 provides

"Subdivision 1. When parent is deceased. If a parent of an unmarried minor child
is deceased, the parents and grandparents of the deceased parent may be granted
reasonable visitation rights to the unmarried minor child during his minority by the
district or county court upon finding that visitation rights would not interfere with
the parent child relationship. The court shall consider the amount of personal con-
tact between the parents or grandparents of the deceased parent and the child prior
to the application.

"Subd. 2. When parent's marriage is dissolved. In all proceedings for dissolution,
subsequent to the commencement of the proceeding and continuing thereafter
during the minority of the child, the court may, upon the request of the parent or
grandparent of a party, grant reasonable visitation rights to the unmarried minor
child, after dissolution of marriage, during his minority if it finds that visitation
rights would be in the best interests of the child and would not interfere with the
parent child relationship. The court shall consider the amount of personal contact

between the parents or grandparents of the party and the child prior to the applica-
tion.

"Subd. 2a. When child has resided with grandparents. If an unmarried minor has
resided with his grandparents or great-grandparents for a period of 12 months or
more, and is subsequently removed from the home by his parents, the grandparents
or great-grandparents may petition the district or county court for an order grant-
ing them reasonable visitation rights to the child during his minority. The court
shall grant the petition if it finds that visitation rights would be in the best inter-
ests of the child and would not interfere with the parent and child relationship.

"Subd. 3. Exception for adopted children. This section shall not apply if the child
has been adopted by a person other than a stepparent or grandparent. Any visita-
tion rights granted pursuant to this section prior to the adoption of the child shall
be automatically terminated upon such adoption."

Until now I have been addressing the problem of what should happen when the
parents or guardians of a particular child are in disagreement about whether there
should be contact between a grandparent and grandchild.

The difficult issue of how best to implement such policies remains. Certainly, pro-
cedural as well as substantive reforms in state law are needed. If courts do not
grant some grandparents standing to bring their visitation disputes to court, any
such policies are, of course, worthless. For example, the issue of grandparent visita-
tion may not have surfaced during a particular divorce for both parents were then
alive, and both arranged for the child to see their parents during part of their own
time with the child. Later one parent dies. The remaining parent then remarries
and his new spouse refuses to allow the child to see the parents of the deceased
spouse. Unless access to court is available at this time, there will be no way for the
grandparents to bring evidence to court as to why it would be in the best interests
of the child for their relationship to continue.

Most courts have not granted access to courts to grandparents after a divorce.
Connecticut is one of the few exceptions. See Mirto v. Bodine, 29 Conn. Supp. 510
(1972). The same statutes mentioned above that have established the principle in
more than forty states that grandparent visitation can be permitted when it is in
the best interests of the child, however, have also established new procedural rights
for grandparents. Many permit grandparents to bring a habeas corpus proceeding to
argue for visitation when their child has died and the custodial parent refused them
access to their grandchild. Unfortunately, most such statutes do not specify what
should happen when a custodial parent remarries and the new spouse^ adopts the
child. Adoption statutes, you see, generally cut off all legal ties to a child's biological
parent and family. Although these statutes were aimed primarily at resolving issues
of inheritance, a number of courts have construed them to cut off visitation rights of
the grandparents as well.

A noteworthy exception is the decision of the Supreme Court of New Jersey in
Mimkon v. Ford, 66 N.J. 426, 33d A. 2d 199 (1975). Jill Ford was born to Joan and
Donald Ford on July 2, 1966. Her parents separated prior to her birth, and were
divorced November 4, 1968. Jill lived with her mother and maternal grandmother
Rose Mimkon, until Joan died November 24, 1970. Donald then took custody of his
daughter.

In June of 1969, Donald remarried. His second wife, Adele, adopted Jill on August
13, 1971. Rose Mimkon continued to visit Jill until Donald and Adele denied her
further access. She then took the matter to court.

The New Jersey court faced apparently conflicting statutes. One established the
right to authorize visitation by grandparents after death or divorce; the other ap-
peared to cut off legal claims after adoption. The court reasoned, correctly I believe,
that the adoption statute was designed primarily to apply to children placed for
adoption when their biological parents are unwilling or unable to care for them.
Protecting the relationship between the adopted child and the adopting parents
from interference by the biological parents might be wise in most such cases. But
here the deceased mother was a fit parent, the court noted, and moreover it was a
grandparent who sought visitation.

The court continued:

"* * * Interference by a natural parent with the relationship between the child
and the adopting parents introduces alternative and conflicting authority figures in
the child's life, creating tremendous emotional tension on the child and ultimately
threatening to undermine the authority of the adoptive parents and their ability to
make parental decisions. Grandparents ordinarily play a very different role in their
child's life; they are not authority figures and do no possessively assert exclusive
rights to make parental decisions. At best they are generous sources of uncondition-

al love and acceptance, which complements rather than conflicts with the role of
the parents.

"Thus, grandparent visitation involves a much lesser risk of threat to the physical
or psychological well-being of the child or to the development of a healthy and natu-
ral relationship between the child and the adopting parents than might continued
contact by the natural parent.

"It is biological fact that grandparents are bound to their grandchildren by the
unbreakable links of heredity. It is common human experience that the concern and
interests grandparents take in the welfare of their grandchildren far exceeds any-
thing explicable in purely biological terms. A very special relationship often arises
and continues between grandparents and grandchildren. The tensions and conflicts
which commonly mar relationships between parents and children are often absent
between these very same parents and their grandchildren. Visits with a grandpar-
ent are often a precious part of a child's experience and there are benefits which
devolve upon the grandchild from the relationship with his grand parents which he
cannot derive from any other relationship. Neither the Legislature nor this Court is
blind to human truths which grandparents and grandchildren have always known.

"In view of this, we can only say that it is proper that in the unfortunate case of
parental separation or death, grandparents should sometimes have privileges of visi-
tation even over the objections of the adoptive parents. It is not only the ordinary
devotion to the grandchild that merits the grandparent's continued right to be with
him, but also the fact that in such cases, the continuous love and attention of a
grandparent may mitigate the feelings of guilt or rejection which a child may feel at
the death of or separation from a parent, and ease the painful transition. 332 A.2d
at 203-05."

I have focused until now primarily on the positive aspects of grandparent visita-
tion. But even the New Jersey Supreme Court cautioned that such visitation should
be authorized over parental objections only when it would be in the best interests of
the child, warning that courts should not permit visitation by a particular grandpar-
ent when it would undermine the authority of the adoptive parents or otherwise
create psychological conflict for the child. ^

There is, of course, a strong possibility of psychological conflict in such situations,
precisely because the child's relatives have by definition been unable to resolve
their differences without resort to the courts.

It was to avoid just such psychological turmoil that several experts in the field
have argued against court ordered visits even by noncustodial parents. Thus Joseph
Goldstein, Anna Freud, and Albert J. Solnit observed in Beyond the Best Interests
of the Child:

"Children have difficult in relating positively to, profiting from, and maintaining
the contact with two psychological parents who are not in positive contact with each
other. Loyalty conflicts are common and normal under such conditions and may
have devastating consequences by destroying the child's positive relationship to both
parents."''

They recommend, therefore, that once it is determined who will be the custodial
parent, it is that parent, not the court, who should decide whether the other parent
should be able to visit the child.*

I acknowledge that forced visitation may have very negative consequences for a
child. But I also believe this proposed cure may be worse than the original problem.
Thus as Judge Dembitz has observed, "the disquiet that may attend court ordered
visitation must be weighed against the child's needs for the psychological assets of
the parents and the child's feeling of confusion and rejection that may follow the
disappearance of the noncustodial parent."^ Moreover, as Professor and Mrs.
Strauss have written:

". . . [T]he social science data to support the proposition that a single official
parent is preferable to two seems remarkably weak. ... To be the child of a mother
and father who dislike one another is, to be sure, an unfortunate life experience;
and parents who would subject their children to conflicting loyalties, whether or not
they remain married, are less than adequate to the task. Nonetheless, given a child
with existing relationships to both, we kriow of no studies which show that the legal
death of one parent, the complete subordination of the child to the other's possibly
distorted now, is invariably the preferable step for its future development."^

2 332 A.2d at 205.

3 Goldstein, Freud and Solnit, Beyond the Best Interests of the Child 38 (1973).
"Id.

5 N. Dembitz, Book Review. 83 Yale L. J. 1304, 1310 (1974).

^. P. Strauss & J. Strauss, Review of Beyond the Best Interests of the Child, 74 Col. L. Rev.
996, 1002 (1974).

To return to grandparent visitation, the same division of opinion about whether it
is proper to force visitation on an unwilling custodial parent appears in Mimkon v.
Ford. Thus Justice Sullivan dissented from the majority position noting:

"Here the trial judge ordered . . . visitation over the objections of the child, as
well as the child's father and adoptive mother who felt that [the grandmother] has
been a disruptive influence in their family unit. ... It may be that the child has
been conditioned against her grandmother. If so, this is to be regretted, but if nur-
turing the relationship between grandparent and grandchild is to be had at the ex-
pense of the child's well being and the family unit in which she now lives, I have no
doubt as to what a court should do.'"'

Justice Clifford in dissent added:

"Given the objection to visitation — be it well-taken or otherwise — I foresee contin-
ued acrimony between the parties and a tug-of-war with Jill in the middle. . . .
Judicial interference in this sensitive area should generally be undertaken only
with the greatest hesitancy and in this case not at all." ^

'This division among thoughtful decision-makers should, if nothing else, caution us
against rigid approaches to intra-family conflicts.

To sum up my personal recommendations, I believe the trend of the last dozen
years to permit grandparent visitation when it is in the best interests of the grand-
child should be praised and extended to those few states that have not yet passed
appropriate statute. Indeed, I would recommend amending those existing statutes
which do not at present establish presumptions in favor of visitation when it ac-
cords with the wishes of the biological parent who is the child of the grandparent in
question, particularly when the grandparent and grandchild have an established re-
lationship. I would also modify existing adoption statutes to permit grandparent
visitation following adoption by a stepparent, the position espoused by the majority
of the New Jersey Supreme Court in Mimkon v. Ford.

At the same time, I want to underscore the importance of always making these
decisions in the context of the lives of a particular child and a particular grandpar-
ent. The law can coerce outward behavior, but if the price is excessive psychological
turmoil for one child, it is too high.

In view of the complex nature of the issue you are addressing today, it becomes
even more important to determine what is the most appropriate role for the federal
government to play. On the one hand, both the variation in, and relatively recent
date of, state legislative protection for grandparent visitation suggest it would be
easier if we had a single, natural standard.

On the other hand, child custody matters have traditionally been left to the
states. The one federal statute that touches this area was explicitly intended to
avoid inconsistent decisions by the courts of two or more states involving the custo-
dy of one child. 3 The lack of federal standards governing custody decisions reflects
an important constitutional constraint: even if Congress wanted to act, it does not,
in my view, have the constitutional authority to mandate standards for child custo-
dy or visitation.

There remains the role of providing guidance to interested states. It has been pro-
posed, for example, that Congress might fund the drafting of a model act on this
problem.

While that step does not pose constitutional hurdles, it also may not accomplish
much other then providing federal funds to an underemployed consultant or two in
view of the rather dismal history of model acts drafted by the government ever
being adopted by states.

There is, by contrast, a quite distinguished record that has been compiled by the
National Conference of Commissioners on Uniform State Laws, not because they are
necessarily wiser than consultants to the Federal Government, but because the very
process of working a problem through that body, composed as it is of judges, law
teachers and distinguished members of the bar from each of the states, the District
of Columbia and Puerto Rico, ensures both national exposure, and a test of whether
a proposal is politically viable.

Founded in 1892, the Conference works "to promote uniformity in state laws on
all subjects where uniformity is deemed desirable and practicable." ^° In 1965, it
began work on a Uniform Marriage and Divorce Act (UMDA). Professor Robert J.
Levy of the University of Minnesota and Professor Herma H. Kay of the University
of California served as co-reporters (drafters) of the UMDA. It was approved in 1974

\ 332 A.2d at 205-06.

* 332 A 2d at 207.

»The Parental Kidnapping Prevention Act of 1980, 28 USCA § 1738A.

>o Uniform Laws Annotated iii (1979).

by the House of Delegates of the American Bar Association for passage in the states
only after much debate about the sections governing the standards for divorce.

Unfortunately, the UMDA, while it establishes standards and procedures for de-
termining custody and visitation, deals only with visitation by parents. Visitation by
grandparents (or any other adults who have developed strong ties with a child) is
not discussed at all.* ^

At this point in time seven states have adopted the UMDA. It has been more in-
fluential than this number suggests, however, for it has been a source of both policy
and language for many state legislatures.

A useful next step might be to encourage the Conference to revise the UMDA or
even to promulgate a separate, new uniform act that deals specifically with the
issue of grandparent visitation.

In the end, our Constitution provides that there is no shortcut to persuading the
legislature and the bench in each and every state to provide adequate protection for
grandparent visitation, not simply for the sake of grandparents, or even because it
will benefit the grandchildren, but because we will all be strengthened in this
nation if we both acknowledge and support family ties across the generations.

Mr. Blancato. The subcommittee has been joined by Congress-
man Craig, who now assumes the role of chairman.

Mr. Craig [presiding]. All right.

Mr. Richard Victor, if you would go ahead with your testimony,
please.

STATEMENT OF RICHARD S. VICTOR

Mr. Victor. Thank you.

I wish to thank, for the record, the chairman of this committee,
Chairman Biaggi, for having these hearings on behalf of the grand-
parents that I have come in contact with in the State of Michigan.

There are literally hundreds of grandparents that have been in-
volved in the organizations which have already been mentioned in
support of legislation, both on a State basis and Federal basis, for,
and dealing with, grandparents' rights to visitation.

I wish also to put on the record and thank Dr. Statuto, whom I
have worked closely with, although we are a few miles apart — I in
Michigan and her in Washington — in putting together material
and getting these proceedings to go forward.

I think it should be known the hard work that the entire staff of
Congressman Biaggi has been doing to put these forward.

For purposes of the record, I wish to ask that my written testi-
mony be incorporated into the record. I will be reading from part
of it. I will be deleting part of it and summarizing other parts.

Mr. Craig. Go ahead. That will be done.

Mr. Victor. Further, for purposes of the record, I think I should
identify myself and who I am and what work I have done.

I am an attorney in private practice in the State of Michigan. In
Michigan, I am recognized as a specialist in grandparents' rights
cases. I have had extensive experience in trying and litigating
these cases through the courts in Michigan.

I have appeared on several talk shows discussing this topic as re-
cently as the day before we flew here, I appeared on two.

' ' The UMDA in Section 402, the section that establishes standards for courts to follow in
awarding custody, does include

"(3) the interaction and interrelationship of the child with his parent or parents, his siblings,
and any other person who may significantly affect the child's best interests.

While the section might in some cases apply to grandparent. Section 407 on visitation speaks
only of parent visitation.

I bring this to the committee's attention because of results of a
poll provided by one of those shows, "Good Afternoon, Detroit," on
WXYZ-TV, an affiliate of ABC. On that show, I appeared and
made a presentation as the show's legal adviser, a capacity in
which I serve for the station.

A question was asked for viewers to call in dealing with, should
grandparents have rights to visitation in divorce cases, and in
times when they are denied the rights to visitation.

I was informed after the 1-hour program that the response to
this question was phenomenal. There were over 1,500 calls in this
local area. They said that the highest rate of calls they ever re-
ceived was 1,700. I failed to ask what the question was. I suspect,
since it was Detroit, it probably was, should Sugar Ray Leonard
fight Tommy Hearns?

But other than that, it was the largest response they had re-
ceived. From the 1,500 calls received, the percentage was 70 per-
cent favored grandparents having rights to visitation when they
had been denied these rights and only a mere 30 percent opposed
this.

For further background on myself, which I don't like to discuss,
but hopefully it may bring some credibility to what I have to pre-
sent to the committee, I am also an instructor in family law and
have authored the family law courses at both Mercy College of De-
troit and Oakland University, where I am currently on the faculty.

I am chairman of the Custody Subcommittee of the Codifications
of Statutes Committee for the State Bar of Michigan and presently
rewriting custody laws that will be submitted to our legislature. I
am a member of the advisory committee for the Oakland School,
for Woodland Hills Medical Center, and the Cambridge Institute
for Mental Retardation.

I would now like to address the testimony.

In my work as an attorney in private practice in the State of
Michigan, I have had numerous dealings with grandparents who
have been denied the right to visit with their grandchildren.

Because of these denials, these grandparents were forced to seek
court intervention to enforce rights which these grandparents felt
were their rights inherently. Unfortunately, the rights which they
have, if any, are statutory in nature. Therefore, my clients have
been limited to what was set forth by State statute in the State of
Michigan and the appellate decisions which interpret those stat-
utes. They have only been able to be successful in receiving court
intervention when legislation was provided by the State recogniz-
ing this issue.

Through our extensive research we have found various State
statutes which deal with this topic and which will be discussed
later in my testimony. Several of these State statutes have conflicts
within the statutes, themselves, which has caused a great deal of
confusion when they are interpreted by the courts. These conflicts
arise in cases where there have been divorces or separations in
families, death of a parent leaving surviving parents and minor
children, children born to parents who were not married, or where
questions of where a child should reside— between a parent and a
grandparent — were submitted to a court.

In all of these cases, grandparents, whether maternal or pater-
nal, were involved and wanted contact with their grandchildren. In
very few cases have we dealt with grandparents fighting for custo-
dy of their grandchildren over a natural parent. The cases that we
have primarily dealt with are of such a nature that grandparents
only wanted to continue a relationship with their grandchildren
that had been established and they wished to continue, but had
been terminated arbitrarily by the legal custodian — usually the
parent or parents — of the child.

Public attention has been drawn to this issue because of the deep
emotions and the equities that are involved. I shall address, by way
of a set of five factual scenarios, cases which I have handled and
which I believe will show a definite need for legislative involve-
ment.

Before I begin these, I wish to point out that V-k years ago, when
I started my — I will use the word crusade — dealing with the rights
of grandparents and grandchildren in the State of Michigan, I was
interviewed by several news reporters from local t^elevision sta-
tions.

Once we met, they came in and I talked to them, and I told them
what we were doing with the legislature — they were doing stories
on legislation we had been supporting in Michigan. When I fin-
ished the presentation, I realized that I had done a terrible job be-
cause the reporter turned to me and said, I didn't know grandpar-
ents could not see their grandchildren if they didn't want to.

I realized we had a long way to go to bring to light the problems
that have arisen and that exist. When I read these five scenarios to
you, I think you will understand how this does happen and how it
could happen to anybody in this room.

Scenario No. 1: Husband and wife, following marital difficulties,
have a divorce action filed and pending. Prior to a divorce judg-
ment being entered, husband commits suicide, leaving a 3-year-old
child of the parties. Husband's parents — grandparents — have main-
tained a close relationship with their 3-year-old grandson and con-
tinue that relationship following the untimely death of their son.

While wife is beginning her new life, grandparents have addi-
tional involvement with their grandchild, and in fact take care of
him while wife begins her employment. Wife meets a man and
they subsequently marry. Man — stepparent — adopts child. Steppar-
ent is now the legal father of said child. Query: Who are the pater-
nal grandparents of that child?

The grandparents are then told, "You can no longer visit or see
grandchild again." What are their rights?

Scenario No. 2: Wife, following marital problems with her hus-
band, leaves husband along with their 6-month-old daughter. While
driving, following her departure, she is involved in a fatal auto-
mobile accident wherein she is killed. The 6-month-old child sur-
vives. Wife's parents — maternal grandparents — take care of infant
grandchild until father of the child remarries. Remarried father
and stepmother then have the child live with them. Grandparents
continue to see the child, but following the wishes of the father and
stepmother, do not tell the child that they are her grandparents.
Stepmother of child adopts the child and raises the child never tell-
ing her that she was not the natural mother of the child. After sev-

eral years, the father and stepmother of the child tell grandparents
they can no longer see their granddaughter again.

The grandparents never tell the grandchild who they really are,
following the wishes of the parent. However, they are unwilling to
forfeit all contact with their grandchild. What rights do they have?

Scenario No. 3: Husband and wife are divorced. Following di-
vorce, husband is given custody of the one minor child. Husband
has psychological problems which hinder his ability to continue
custody of the minor child, and in fact while he legally has custody,
said minor child resides with the paternal grandparents who prop-
erly raise and nurture the child.

Wife files for a change of custody, following her remarriage,
which is granted. Paternal grandparents never contested the
change of custody and in. fact were in agreement with the wife
having legal custody, as they acknowledged the psychological prob-
lems which affected their son. Subsequent to wife regaining custo-
dy, and for no apparent reason, she completely denies the paternal
grandparents any visitation with the minor child.

No allegation is ever made that the paternal grandparents are in
any way unfit or would be harmful to the minor child. What are
their rights?

Scenario No. 4: Unwed mother gives birth. Maternal grandpar-
ents are extensively involved in helping raise the child. Putative
father of the child acknowledges paternity and seeks custody of the
minor child. Mother of the child does not want custody of the child
and does not contest father's petition. Maternal grandparents of
the child want to be able to assure visitation with the child once
custody is granted to the acknowledged natural and now legal
father of the child. What rights do they have?

The last factual scenario: Husband and wife have one minor
daughter. Husband dies and wife maintains custody of minor child.
Because of emotional and psychological problems which the mother
of the child is suffering, she sends the minor child to her mother's
home — maternal grandmother — to live with the maternal grand-
parents for a period of time. The child resides with the maternal
grandparents, is raised by them for a period of time and does well.

Subsequently thereafter, the mother of the child decides she
wants her minor child back and refuses the maternal grandparents
to have any contact with the minor child, including visitation. Ma-
ternal grandparents are worried because of the history of emotion-
al problems which the mother of the child has suffered and not
only refuse to give up their contacts with their minor grandchild,
but worry for his safety as well. What legal rights do they have?

The above five factual scenarios are real. They represent only a
small segment of cases which I have litigated over the past few
years. Some of these cases are still pending and awaiting eviden-
tiary hearings dealing with what is in the best interests of the
minor child. Others have been disposed of through either court rul-
ings or voluntary dismissals following the intervention of psychia-
trists, psychologists, social workers, or other professionals trained
in the behavioral sciences who have helped reconcile families fol-
lowing disputes, as I have set forth above.

Unfortunately, in most of the cases where professionals in the
behavioral sciences have intervened, their intervention was only

agreed to by the legal custodian or parent(s) because of the threat
of court litigation. The incentive for legal custodian of a minor
child to attempt counseling or a voluntary reconciliation of the
emotional traumas involved was their knowledge that the grand-
parents involved had the ability to seek court enforcement pursu-
ant to legislative enactments.

Without those legislative enactments, without just and proper
laws available, there would be no incentive. Thus, the fact that leg-
islation is created will not, of and by itself, create additional bur-
dens on our courts.

I want to make this very clear. I am going to leave from the writ-
ten testimony, because now I am getting emotionally involved with
what I have to say. I think I want to just address it. It has been a
long morning. We are into the afternoon. This committee has
heard emotional stories from grandparents.

I could have told the committee beforehand that if you give a
grandparent an opportunity to tell their story, themselves, without
the aid of the attorneys sitting there, it will be a long presentation.
They rarely have that opportunity to stand before a court and tell
their story. They have come here today in hopes of attempting to
do that, and their stories are long, their stories are involved, their
stories are the depth of their own heart.

I thank the committee for its indulgence and its patience in lis-
tening to these problems. The point I would like to make is the leg-
islation we are asking for, the legislation which I feel is badly
needed, will not overburden courts.

I have found in Michigan that the more extensive the legislation
we receive, the more we are able to resolve disputes and settle
cases. We have the incentive there because without the legislation,
the parties are totally in disagreement. They are in total disarray.
There are problems. There are injustices. No one knows what they
can do. They don't know their rights or responsibilities; but if we
have something clear and definitive which sets those forth, parties
know they have two alternatives. Either they can fight in court
and they can have the expense of legal costs, but, more so, the ex-
pense of the emotional costs that are involved, or they can sit
down, through the help of behavioral scientists, professionals
trained in these areas, and try to resolve their disputes.

True, sometimes the disputes are too far gone and they will not
be able to be resolved by professionals who are trained; and some-
times grandparents should not be granted the rights to visitation.

We are not saying to this committee that all grandparents
should have rights of grandparent visitation in every case. What
we are saying is, that if it is in the best interests of a child, then
let visitation occur.

How do we define this best-interest question? In my written testi-
mony I set forth a statute which Michigan uses to define that. I
will not repeat it. It is in my testimony, and it is in the record. But
I incorporate parts of that statute along with statutes from around
the United States, and what my staff did before I came here is we
pulled all of the legislation dealing with the best interests of a
child as well as all legislation dealing with grandparents' rights
throughout the United States, and we reviewed everything that
there was, and we tried to take the best of all of that, and I have

prepared a package of proposed legislation which is short, only two
pages long, but I have submitted that in my written testimony. It is
not the end, but it is a beginning.

One of the things that I attempted to do other than setting forth
what I thought was necessary for legislative enactment was to put
a safeguard in the legislation, the safeguard being a definition of
what is in the best interests of a child.

If a court or a mediation panel knows what they are looking for
as the standard — and I have attempted to define that — then it
makes it much easier for everybody to know when visitation should
occur and when it should be denied. In the proposed legislation,
which is found at the end of my testimony, pages 18 and 19, I at-
tempt to set forth my definition of what I feel the court should look
to when determining what is in the best interests of a child.

[Mr. Victor's prepared statement follows:]

Prepared Statement of Richard S. Victor, Attorney

TESTIMONY tO THE HUMAN SERVI-CES SUB-COMMITTEE

OF THE SELECT COMMITTEE ON ACfNG ^^

GRANDPARENTS" RICHTS TO VISITATTDTT-

1 . How And Why This Issue Has Gathered National Attention
And The Need For State Statute's^

Whenever portions of our society are members of a
class which are susceptible to arbitrary decisions, animosity,
and/or loss of rights, members of that class usually find a
way to draw attention to their alleged injustices. Hopefully,
our society understands and accepts this principle and
attempts to cure injustices once they are known.

As a result of continued population growth, especially
our "baby boom of the 40' s," the 1980' s and 1990' s will pro-
vide our society with a greater number of grandparents than
we have known in our recent past. Add to this fact that the
divorce rate in our country is staggering with estimates of
almost one divorce for every two marriages, and in addition,
these divorces are occurring between young parents v;ho have
young children, we can see that this trend in our society can
create conflicts which were unimaginable in past decades.
Some of these conflicts need legislative involvement in or-
der to cure injustices which might occur. Whether the legis-
lative involvement which is necessary should be on a state-
to-state basis, strictly Federal, or a combination of both,
is a question which needs to be answered at this time.

Grandparents across our nation have been standing
up and speaking out when they have been denied the opportunity
to visit with their grandchildren for no apparent reasons.
This has taken place in the form of the formation of various
support groups on a state and national level, as well as
numerous court cases which have been pursued to enforce inherent
rights of grandparents to be able to visit with their grand-
children. The title of this subject "grandparents' rights
to visitation" is only one-half of the subject. The converse
deals with the rights of grandchildren to be able to visit
with, communicate, and maintain contact with their grand-
parents. This, I believe, should be the crux of our investi-
gation. This should be of significance to the legislative
bodies which pass laws to protect segments of our population
who are not able to protect themselves as well as to pass laws
which provide remedies where injustices have occurred. To quote
Arthur Kornhaver, M.D. and Kenneth L. Woodward: "The grand-
parent and grandchild relationship is a vital connection."

Through my work as an attorney in private practice
in the State of Michigan, I have had numerous dealings with
grandparents who have been denied the right to visit with their
grandchildren. Because of these denials, these grandparents
were forced to seek court intervention to enforce rights which
these grandparents felt were their rights inherently. Unfor-
tunately, the rights which they have, if any, are statutory
in nature. Therefore, my clients have been limited to what
was set forth by state statute in the State of Michigan and

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the appellate decisions which interpret those statutes, and
have only been able to be successful in receiving court inter-
vension when legislation was provided by the state recognizing
this issue.

Through our extensive research we have found various
state statutes which deal with this topic and which will be
discussed later in this testimony. Several of these state
statutes have conflicts within the statutes themselves
which has caused a great deal of confusion when they are
interpreted by the courts. These conflicts arise in cases where
there have been divorces or separations in families, death of
a parent leaving surviving parents (grandparents) and minor
children (grandchildren), children born to parents who were
not married, or where questions of where a child should reside
(between a parent and a grandparent) were submitted to a court.
In all of these cases, grandparents, whether maternal or paternal,
were involved and wanted contact with their grandchildren. In .
very few cases have we dealt with grandparents fighting for
custody of their grandchildren over a natural parent. The
cases that we have primarily dealt with are of such a nature
that grandparents only wanted to continue a relationship with
their grandchildren that had been established and they wished to
continue, but had been terminated arbitrarily by the legal custodian
(usually the parent or parents) of the child.

Public attention has been drawn to this issue because
of the deep emotions and the equities that are involved. I

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shall address, by way of factual scenarios, cases which I
have handled and which I believe will show a definite need
for legislative involvement.

2. The Nature of My Clients, The Themes That Run Through

TPteir Cases, And The Rationale Used To Render Disposition,

The Client Scenarios:

1. Husband and wife, following marital
difficulties, have a divorce action
filed and pending. Prior to a divorce
judgment being entered, husband
commits suicide, leaving a three-year old
child of the parties. Husband's
parents (grandparents) have main-
tained a close relationship with their
three -year old grandson and continue
that relationship following the untimely
death of their son. While wife is be-
ginning her new life, grandparents have
additional involvement with their
grandchild, and in fact take care of
him while wife begins employment.

Wife meets a man and they subsequently
marry. Man (stepparent) adopts child.
Stepparent is now the legal father of
said child. Query: Who are the paternal
grandparents of that child?

Grandparents are told, "You can no
longer visit or see grandchild again."
I'Jhat are their rights?

2. Wife, following marital problems with
her husband, leaves husband along with
their six-month old daughter. While
driving, following her departure, she is
involved in a fatal automobile accident
wherein she is killed. The six-month
old child survives. Wife's parents
(maternal grandparents) take care of
infant grandchild until father of the
child remarries. Remarried father and
stepmother then have the child live
with them. Grandparents continue to
see the child, but following the wishes
of the father and stepmother, do not
tell the child that they are her grand-
parents. Stepmother of child adopts

the child and raises the child never tell-
ing her that she was not the natural

mother of the child. After several years, the
father and stepmother of the child tell grand-
parents they can no longer see their grand-
daughter again.

Grandparents never tell the grandchild who
they really are, following the wishes of the
parent. However, they are unwilling to forfeit
all contact with their grandchild. What
rights do they have?

3. Husband and wife are divorced, followingdivorce
husband is given custody of the one minor
child. Husband has psychological problems
which bender his ability to continue custody

of the minor child, and in fact while he
legally has custody said minor child resides
with the paternal grandparents who properly
raise and nurture the child. Wife files
for a change of custody, following her
remarriage, which is granted. Paternal
grandparents never contested the change of
custody and were in agreement with the
wife having legal custody, as they acknowledged
the psychological problems which affected
their son. Subsequent to wife regaining
custody, and for no apparent reason, she
completely denies the paternal grandparents
any visitation with the minor child.
No allegation is ever made that the paternal
grandparents are in any way unfit, or would
be harmful to the minor child. What are
their rights?

4. Unwed mother gives birth. Maternal grand-
parents are extensively involved in helping
raise the child. Putative father of the
child acknowledges paternity and seeks custody
of the minor child. Mother of the child

does not want custody of the child and does
not contest father's petition. Maternal
grandparents of the child want to be able
to assure visitation with the child once
custody is granted to the acknowledged
natural and now legal father of the child.
What rights do they have?

5. Husband and wife have one minor daughter.
Husband dies and wife maintains custody
of minor child. Because of emotional and
psychological problems which the mother
of the child is suffering, she sends the
minor child to her mother's home (maternal

grandmother) to live with the maternal
grandparents for a period of time.
The child resides with the maternal grand-
parents, is raised by them for a period
of time and does well. Subsequently there-
after, the mother of the child decides she
wants her minor child back and refuses the
maternal grandparents to have any contact
with the minor child, including visitation.
Maternal grandparents are worried because
of the history of emotional problems which
the mother of the child has suffered and
not only refuse to give up their contacts
with their minor grandchild, but worry for
his safety as well. What legal rights do
they have?

The above five factual scenarios are real. They repre-
sent only a small segment of cases which I have litigated over
the past few years. Some of these cases are still pending and
awaiting evidentiary hearings dealing with what is in the best
interests of the minor child. Others have been disposed of
through either court rulings or voluntary dismissals following
the intervention of psychiatrists, psychologists, social workers,
or other professionals trained in the behavioral sciences who
have helped reconcile families following disputes as I have
set forth above. Unfortunately, in most of the cases where
professionals in the behavioral sciences have intervened, their
intervention was only agreed to by the legal custodian or parent
(s) because of the threat of court litigation. The incentive for
legal custodian of the minor children to attempt counseling or
a voluntary reconciliation of the emotional traumas involved was
their knowledge that the grandparents involved had the ability
to seek court enforcement pursuant to legislative enactments.
Without those legislative enactments, without just and proper
laws available, there would be no incentive. Thus the fact that

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legislation is created will not of and by itself create additional
burdens on our courts. In fact, they conversely create incentives
for parties to reconcile and to correct wrongs or injustices which
may have been committed. The court enforcement and application
of legislation (both state and Federal) would be utilized as a
last resort to correct injustices.

In reviewing the five factual scenarios I have presented,
the following themes can be found:

1 . Where there is a death of a parent who
leaves a minor child and grandparents
of the minor child surviving;

2. Following a divorce and custody dispute
wherein custody of the minor child

or children are placed with the former
daughter or son-in-law of the grandparents
of the child;

3. Grandparents of a minor child born out of
wedlock;

4. A parent of an adult child who has a child
have conflicts between themselves causing
disputes which ultimately affect a grand-
child and the grandparents' contact with
that grandchild.

In all of the above, and in the actual cases which these

themes reflect, my legal duty was Co represent the grandparents

and fight for their rights to be able to visit with their

grandchildren. In no case do I believe that grandparental

visitation is an absolute. Not all grandparents should be able

to visit with their grandchildren. There may be many instances

where in fact it would be detrimental to a child to be subjected

to visitation with his or her grandparents given the proper

factual setting. However, these decisions must be made on a

case by case basis with one underlying theme or factor; and

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that is, THAT THE BEST INTERESTS OF THE CHILD SHALL CONTROL.

3. "Best Interests" — What Does It Mean?

Michigan, at MCLA 722.23 defines best interests of
the child as follows:

722.23 Best interests of the child, definition

Sec. 3. 'Best interests of the child' means the
sum total of the following factors to be considered,
evaluated, and determined by the court:

(a) The love, affection, and other emotional ties
existing between the parties involved and the child.

(b) The capacity and disposition of the parties
involved to give the child love, affection, and
guidance and continuation of the educating and rais-
ing of the child in its religion or creed, if any.

(c) The capacity and disposition of the parties
involved to provide the child with food, clothing,
medical care or other remedial care recognized and
permitted under the laws of this state in place of
medical care, and other material needs.

(d) The length of time the child has lived in a
stable, satisfactory environment, and the desirability
of maintaining continuity.

(e) The permanence, as a family unit, of the
existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the
parties involved.

(h) The home, school and community record of
the child.

(i) The reasonable preference of the child, if
the court deems the child to be of sufficient age
to express preference.

(j) The willingness and ability of each of the
parents to facilitate and encourage a close and
continuing parent-child relationshio between the child
and the other parent.

(k) Any other factor considered by the court to
be relevant to a particular child custody
dispute .

This state statute, which was effective April 1, 1971,
and amended January 14, 1981, sets forth what the trial court
should look to in defining the concept of "best interests" of a
child. These eleven factors as set forth above, are to be
utilized in both disputes regarding custody of minor children
(in pending divorce actions or subsequent requests for modifica-
tion) as well as when there are disputes regarding visitation.
Unfortunately, a careful analysis of the Michigan statute may
very well be applicable and quite definitive when dealing with
a custody dispute, but somehow falls short when considering the
question of visitation. An example would be sub-sections (c),
(d), (e), (h), and (j) of the statute . These sub-sections would
have very little, if anything, to do with requests for visita-
tion. But, it is all we have in Michigan, when dealing with
this issue. In review of other states, factors in considering
the definition of "best interests" adds the following factors
for a court to utilize:

1 . The interaction and inter-relationship of
the child with his parent or parents,

his siblings, and any other person who may
significantly affect the child's best
interest* (Arizona 125.332);

2. Notice of a custody proceeding shall be
given to the child's parents, guardian
or other custodian. The court, upon

a showing of good cause, may permit inter-
vention by any interested party. (District
of Columbia Statute);

3. The court shall not consider conduct of a
proposed custodian that does not affect
his relationship with the child. (Colorado

§14-10-124);

4. In considering a proposed custodian, the
court shall not presume that any person is
better able to serve the best interests of
the child because of that person's sex.
(Colorado ) ;

5. The physical violence of threat of physical
violence by the child's potential custodian,
whether directed against the child or against
another person, but witnessed by the child.
(Illinois 1602);

6. Where the child has reached the age of four-
teen, such child shall have the right to
select the parent with whom such child desires

to live unless that parent selected is determined
not to be a fit and proper person to have
custody of the child. (Georgia §30-127).

As one can see from above, the states' attempts to
define best interests somehow seem more logical when put in
the setting of legal proceedings involving disputes as to cus-
tody of minor children. Questions of visitation have usually
been left to the discretion of trial court judges to determine
what visitation should be granted and to whom. Most cases have
dealt with questions of visitation concerning non-custodial
parents of minor children. We do not have concrete legislation
that specifically sets forth criteria to be utilized in making
determinations regarding visitation of minor children with
their grandparents.

4. The Problem With State Laws As They Currently Stand (Michigan
As A Prime hxample)^

The history of grandparents' rights to visitation in

Michigan, can be traced as recently as a little over one decade

ago. In 1971 a state law was passed which provided that:

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If either the father or mother of an unmarried
child is deceased, a parent of the deceased
person may commence an action, by complaint or
complaint and motion for an order to show cause,
in the Circuit Court of the county in which
the child resides for visitation of the child
during its minority. If the court finds that
such visitation would be in the best interests
of the child, it may provide for visitation
of the child by general or specific terms and
conditions. (MCLA 722.27(a))

This state statute limited the rights of grandparents

to seek visitation to situations where there had been a death

of their own child leaving a minor grandchild. It would have

created a remedy to our client scenario numbers 1 and 2

(as set forth above), except for the fact that a stepparent

adoption occurred in those factual situations. This was the

problem that Michigan faced when a 1979 Court of Appeals decision

(Bikos V Nobliski , 88 Mich App 157 (1979) was asked to interpret

conflicting statutes dealing with this grandparent visitation

statute and the Michigan Adoption Statute which provided in

part as follows :

After entry of the order of adoption, there
shall not be any distinction between the
rights and duties of natural progeny and
adopted persons , and the adopted person
shall become an heir at law of the adopting
parent or parents, and an heir-at-law
of the lineal and collateral kindred of
the adopting parent or parents. After entry
of the order of adoption, the adopted person
shall no longer be an heir-at-law of his
or her natural parents, except that a right,
title, or interest vesting before entry of
the final order of adoption shall not be
divested by that order. (MCLA 710.60)

The Michigan Court of Appeals in the Bikos , supra , case held

that the Order of Adoption Statute took precedence over the

Grandparent Visitation Statute which effectively made the

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100

natural grandparents of a minor child who was adopted by a

stepparent following the death of the natural parent, no

longer the legal grandparent of that child. Obviously, this

conflict created harsh results and in my opinion a tremendously

unjust dilemma for grandparents throughout the State of Michigan.

In 1980, following the efforts of many groups and individuals,

the Michigan Adoption Statute was amended to read:

...after entry of the order of adoption, the
adopted person shall no longer be an heir-at-
law of a parent whose rights have been terminated
or the lineal or collateral kindred ot that
parent . . . . (MCLA /lU.bU as amended)

The effect of that amendment, was that the adopted

child would no longer be an heir to its natural family line

once the child's parents' parental rights had been terminated. But,

if there had been no termination of parental rights, the child's

natural blood line would not be destroyed. This would then not

take away from natural grandparents their standing as legal

grandparents of a minor child who was adopted unless said

adoption followed termination of parental rights.

In addition, in 1980, the Michigan Child Custody

Statute (MCLA 722.27) was amended to provide:

Upon petition consider the reasonable visitation
of maternal or paternal grandparents and, if
denied, shall make a record of such denial.

On its face, one would think this amendment to the

Michigan Child Custody Statute would solve the problems that

grandparents would have when being denied visitation with their

grandchildren. However, albeit the intent of the legislature

was good, they placed this amended statute under a section of

the Michigan laws which had a preamble. The preamble, or

101

prerequisite to utilization of this amended statute, provided

as follows:

If a child custody dispute has been submitted
to a circuit court as an original action under
this act or has arisen incidently from another
action in a circuit court or a judgment of a
circuit court, for the best interests of the
child the court may: ...

Therefore, in order for a grandparent to attempt to
utilize the statute which allows them to petition for consi-
deration regarding visitation, there must either have been, or
presently have, a child custody dispute involved. In the cases
I have litigated, very rarely does a grandparent seek custody
of their grandchild. They merely want visitation and, therefore,
cannot avail themselves to the remedy which Michigan has pro-
vided. In addition, when the legislature enacted the amendment
to the Child Custody Statute which provided for this ability
to petition for reasonable visitation (following a child custody
dispute), the Michigan legislature repealed the prior law known
as the Grandparent Visitation Statute, which was originally
enacted in 1971, as cited above (MCLA 722.27(a)). Obviously,
we have a great deal of confusion in our courts as to what
is the present status of our laws and how should those laws
be interpreted. There are presently pending several new statutes
which hopefully will either cure the problem, or add to the
conflict, but to date none have passed both Houses of our
legislature .

A brief research into how other states handle this
dilemma finds that over twenty states have passed legislation
dealing with this problem. Within these twenty states there are

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102

tremendous conflicts, especially once a stepparent adoption
occurs. Other conflicts arise in the interpretation of these
statutes and whether or not they are to be construed to intend
that grandparents have standing to intervene in divorce proceedings
to assert their rights to visitation while their own children's
divorce matter is pending. Oklahoma (Oklahoma Statute Annotated
Title 10, s60.16) has a unique enactment which appears to set
forth that grandparents have visitation rights with their grand-
children unless they are terminated by court order, and such is
true even though the child may be adopted by his stepparent.
Because of the frequency of stepparent adoptions and what affect
the stepparent adoptions have on the grandparents of the child,
specifically with respect to visitation rights, we need some
cohesive legislation on a Federal level to help our states draw
together into a unified position with respect to this problem.

5. The Need For Uniform Grandparental Visitation Rights Act

Other than the need for a clear and concise understanding
of this problem from a national perspective, and Federal legisla-
tion appropriate thereto, there is another reason why there is a
need for Federal legislation dealing with this problem. In
several cases wherein I represented grandparents who were forced
to seek court enforcement of their visitation rights, we have
been threatened by the parent or legal custodian of the minor
grandchild involved, that if we were to pursue our court action
they, the parent or legal custodian, would remove the child from
the State of Michigan. Considering the fact that the City of
Toledo, Ohio is approximately the same distance from Detroit,

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as the capiCol of our state, Lansing, Michigan, this threat
of removing children from the state is very real. What remedy
would a grandparent have when faced with this threat? If we
had Federal legislation, along with state legislation, dealing
with this problem, such as we have with our civil rights legisla-
tion, the threat of moving from one state to another to avoid
enforcement of court orders would be a mere "puff of wind."

Our society today is a "transient society." We are
little more than three hours away by air from one coast to
another. People move from one state to another as easily now
as we use to move from one city to another. This is progress,
but how does it affect our families and our family structure?
Fortunately, we do not have to concern ourselves with the family
which is whole, or which is not in dispute. But what of the
families who have emotional traumas placed upon them for one
reason or another? Should they be afforded protection in
situations where unjust actions motivated by animosity,
vendictiveness , and hostility, tear apart blood relationships.
The problem of grandparents' rights to visitation is no longer
a local issue. We need state statutes to protect people within
the boundaries of our states. However, when the people involved
live in different states or move from one state to another,
then we need Federal legislation available for the same reason
that we need state legislation when the parties are confined
to one single state. Again, court enforcement of this legisla-
tion is a last resort 1 It is the motivating incentive for
parties to reconcile their differences. It is the motivating
incentive for parties to voluntarily seek counseling in hopes

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of reconciling their family traumas. But it does provide a last
resort for injustices which may occur.

I have had an opportunity to review the Uniform Grand-
parental Visitation Rights Act drafted by Roger E. Stevens.
I believe it is a good skeleton, but it needs some work. Sub-
section 1 sets forth that:

Notwithstanding the award of any child by adoption
... all children shall be entitled to have reasonable
grandparental visitation ....

I believe the word adoption needs further clarification as to
uhethsr or not this statute should affect the family unit where
an adoption at birth following termination of parental rights
on a voluntary basis is made. I am not certain that disrupting
that new family unit (distinquishing this from a stepparent
adoption once a family unit has been in existence) would be in
the best interests of the newly adopted child. This is something
for further discovery and I would defer to professionals in the
behavioral sciences for their imput. I would also think that
further clarification by way of definition should be set forth,
so that a trial court would have a better understanding of
exactly what definition "endanger the child's physical health
or significantly impair his emotional development" means.
This is quite significant as it would be the crux of the court
proceeding and the burden for the litigant to prove and/or over-
come. This must not be ambiguous. It must be clear, concise,
and highly definitive, so that all parties involved know what
standards are to be met if grandparent visitation is to be denied,

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105

In Sub-section 2 of the Uniform Grandparental Visitation
Rights Act which was submitted to me, I would suggest that a
definition of "best interests of the child" be attempted, so that
the trier of fact in these cases would know what standard is to
be followed when implementing sub-section 2 of the Act. Further,
the Act should set forth the procedural factors which are to be
followed when asking a court to implement this legislation and
enforce same (i.e. done by way of petition or petition and order
to show cause or complaint, etc.).

6. Soecific Recommendations
i ,

The most obvious recommendation that I can make, but
one which is not part of these hearing is that each state adopt
some form of legislation recognizing the problem of grandparents'
rights to visitation and providing some remedy which would be
available to enforce these rights. 1 would also suggest that
state legislation set forth a scheme of mandatory counseling
through the use of professionals in the behavioral sciences
to help provide direction for families who are in dispute and
are suffering from the emotional traumas which are usually pre-
sent when an issue of denial of grandparental visitation is
involved. The court should be able to consider the willingness
to cooperate in attempting to reconcile these problems and not
allow one party to control the proceedings by blatant avoidance
of attempts to reconcile the dispute.

Further, the court should be able to inquire into rea-
sons for any alleged animosity (or why denial of visitation was
made in the first place) and then consider only reasons where

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106

proper justification is presented. Obviously, if proper justifica-
tion is presented, then this is to be considered when determining
what is in the best interests of the child with respect to this
visitation question. With respect to Federal remedies, I would
recommend that legislation along the following lines be submitted
for further discussion and inquiry with respect to this problem.
Proposed Legislation:

GRANDPARENTS' RIGHTS TO VISITATION

(a) If either the father or mother of an unmarried
minor child is deceased, the parents or
grandparents of such deceased person may be
granted reasonable visitation rights to the
minor child during its minority by a court of
competent jurisdiction upon a finding that
such visitation rights would be in the best
interests of the minor child.

(b) When determining whether such visitation
would be in the best interests of the
minor child, the court should look to the
following factors:

1. The love, affection, and other
emotional ties existing between
the parties involved and the
child.

2. The capacity and disposition of the
parties involved in give the child
love, affection, and guidance

and continuation of the educating
and raising of the child in its
religion or creed, if any.

3. The moral fitness of the parties
involved.

4. The mental and physical health of
the parties involved.

5. The reasonable preference of the
child, if the court deems the
child to be of sufficient age

to express preference.

6. The amount of personal contact be-

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107

tween such persons and the minor

child prior to the application for

the order granting visitation
rights .

7. Any other factor considered by the
court to be relevant equitable,
and to be in good conscience in
deciding the amount and extent
of such requested visitation.

of any minor child for the purpose of obtaining
visitation rights to said minor child.

(d) Whenever any court shall have had before it
any questions concerning the custody of any
minor child, or whenever the parents of the
minor child have been divorced, or are engaged
in legal proceedings to obtain a divorce, or
legal separation, the maternal or paternal
grandparents of said minor child shall have the
right to file a complaint or complaint and
order to show cause requesting visitation

with said minor child if said visitation would
be in the best interests of said minor child.

(e) The court may make or modify an order granting
or denying grandparental visitation rights when-
ever such order or modification would serve the
best interests of the minor child; but the court
shall not restrict a grandparent's visitation
right unless it finds that the grandparental
visitation would not be in the best interests

of said child by clear and convincing evidence.

(f) This section shall apply where a minor child
has been adopted by a stepparent, grandparent,
or other relative of said minor child; said
adoption shall not terminate the rights of
the child's maternal or paternal grandparents
as herein set forth.

(g) If a dispute with respect to grandparental
visitation arises, then, the parties thereto shall
be entitled to an evidentiary hearing wherein

the court shall determine by clear and convincing
evidence why said requested grandparental visita-
tion shall not be granted. If a denial of said
grandparental visitation is made, then the court
shall make a record of such denial. The court
shall at all times consider the best interests
of the minor child when making this determination.

108

The above reflects a mere guideline which can be utilized
in the drafting of grandparental rights to visitation laws. There
is no question in my mind that the problems relating to the rights
of grandparents to visit with their grandchildren is a real concern
to a great number of people in our country. This concern is one
which shall surely grow because of the amount of divorce in our
country. We must concern ourselves with the concept of the "extended
family" which includes grandparents, stepparents, and other third
parties from the traditional family unit. Further, grandparents
"as seniors" of our society shall have a greater impact as their
numbers increase. The concept of "grandma" and 'grandpa sitting in
a corner unable to stand up for themselves and speak, no longer
exists. "Grandma' and 'grandpa," just as grandson and granddaughter,
have inherent rights in our family unit. They are necessary to pass
on the heritage of the past. They are a link in the long chain
of continued growth and expansion of our society. They should no
longer be ignored 1

Psychiatrists, psychologists, and social workers can tell
us of the importance that grandparents can have on grandchildren.
As a former history major, it is interesting to note how different
civilizations treat their older generations. It would seem logical
that "seniors" can help us learn from our mistakes and teach us
traditions and cultures which can be utilized and passed on in the
future. Lastly, and it is something that I remind the litigants
who are involved in cases where I fight in court for grandparent
visitation, and that the parents who are standing in the

109

way of allowing their children to contact, communicate, and
share with their grandparents , will one day be grandparents
themselves. How do they want their child to remember their oum
actions. We teach our children not by what we say, but by what
we do. It is now time to do what must be done and to recognize
the rights and responsibilities that we all face in the most
basic structure that God ever created — the family. This is not
a concern isolated to the local community, or even to a state as
a whole. This is a concern, and a responsibility, of all citizens
in our nation. I urge you to strongly consider adopting legislation,
on a Federal level, in support of the rights of grandparents, and
the rights of grandchildren in this regard. Thank you for your
consideration ,

RESPECTFULLy SUBMITTED ,

<D S. VICTOR, Att/rney
Greenfield Road
Suite 212

Oak Park, Michigan 48237
968-3500 (313)

110

Mr. BiAGGi. Let me ask a question. Is it your contention that if
we have good legislation on the books that it will serve as a deter-
rent as far as going to courts are concerned?

Mr. Victor. Most definitely. I think that the fact that you have
clear and concise legislation in any area of law where reasonable
people will not deter as to the definition, they will understand it,
especially when you are dealing with this area of the law, my expe-
rience, and it is extensive in this area in the State of Michigan, is
that 90 percent of my cases will be resolved.

To give this committee an indication of the five scenarios that I
presented, all five of them went and a court action was started by
way of a complaint. Four of the five never made one court hearing.
They were resolved without even a court hearing. Once two reason-
able attorneys are involved who sit and counsel their parties and
tell them this is what the law says, four out of five said "OK, well,
I do not like her or I never got along with my mother-in-law, but if
this is what the law says and this is what it costs to fight it and the
law is pretty clear, what are we going to do?"

The attorneys may refer the parties to psychological specialists
or social workers, somebody who is objective, and they resolve the
disputes. The most difficult one we had was the one where the
grandparents never told the grandchild that they were the actual
grandparents. In that case we utilized a psychiatrist who first
spoke with the parents. The problem was that the stepmother had
convinced herself that she was the mother of the child. This was a
very difficult case. It took a lot of time. It did not need court
action. What it did need is reasonable people who understand that
there are legal rights and then follow them through.

The psychiatrist spoke with the parents and then he spoke with
the grandparents to understand what the other parties were going
through. Then he spoke with the child, and in the psychiatrist's
office the child was told the truth, and then— and on the other
hand when my children were born, that was the proudest moment
of my personal life. There was a reuniting of that family and every
Christmas I get packages of fruits and flowers from the grandpar-
ents thanking me for bringing them back together with their
grandchild, and they are together today.

I received a telephone call from them a month ago saying that
the parents of the child have moved out of the State of Michigan,
but we will not need to go into court, because once the family was
reunited— my clients live in Dearborn, Mich., also have a home in
Florida— the parents of the child have allowed the grandchild pos-
sibly to go to Florida to visit the grandparents. We never had a
trial, we never had a court hearing. What we had was law. On the
other hand, the need

Mr. BiAGGi. Excuse me. Michigan has a law, but in the end there
was a form of mediation was there not?

Mr. Victor. The mediation was not in the formal presentation as
attorneys used mediation. What we had is we had two attorneys
and a psychiatrist who was agreed on by the two attorneys.

Mr. BiAGGi. The law compelled them to take an alternate course?

Mr. Victor. They were given two alternatives, an alternative of
going to court or an alternative of going to the psychiatrist's office.
I gave the alternatives.

Ill

Mr. BiAGGi. We have legislation in 42 States. You are testifying
about Michigan?

Mr. Victor. I am familiar with legislation in most of the States. I
am very familiar in the application of the Michigan laws, which by
the way, for purposes of this committee, may be changed as of this
morning. There are two new bills on Governor Milliken's desk.
They will be signed. There is no opposition to them. These new
laws will broaden grandparents' rights to visitation further.

Mr. BiAGGi. Which if any of these States have model legislation?

Mr. Victor. I guess Hawaii, which we indicated today provided
legislation for any interested person that could be brought in would
now give us model legislation for the concept of the extended
family, which I think is going to be a concept of the future because
of the facts that there are many divorces, there are young people
getting divorced and then remarriages, and because of the remar-
riages we will have a concept in the 1980's, 1990's and the year
2000 of stepparents and stepbrothers and sisters which will be a
psychological family to a child. This extended family concept is
something that I think we have to accept and it will be the reality
of the future.

Mr. BiAGGi. What seems to be evolving here is on a statewide
level we have to have some process take place with the Commission
on Uniform Laws. My experience with State legislatures is that
you have some legislation that is enacted that is very comprehen-
sive, and other legislation that is token legislation. So it would
seem to me that what the testimony compels us to think is that
you need good law, one that will deal with the floodgate situation
that Mr. Kudler spoke about in the U.S. attorney's office. You will
not have the floodgate situation because people now understand
that they must sit down and find and pursue a reasonable course.

How about the enforcement part of it from a State to State?

Mr. Victor. What we have now?

Mr. BiAGGi. When people flee.

Mr. Victor. This is one of the problems I have addressed in the
testimony. The testimony is in the record. I prefer to go one on one
with you. Now you have the enforcement through the contempt
process, and when people flee as we have heard testimony today,
there is definitely a problem. There is also a problem in threats of
when you have a family situation where they refuse to reconcile or
refuse to try to resolve the disputes. I have had threats made that
if you file your petition, Mr. Victor, my client has advised me that
he is leaving the State with his family. That is a real threat and a
deterrent to the grandparents carrying it further.

If we had Federal legislation which is enacted throughout the
United States and accepted as such, enforceable as such, that
would be a mere puff of wind. It would be a recognized right na-
tionally and federally. Our society today is a transient society. We
are a little more than 3 hours away from one coast to another.
People move from one State to another as easily now as we used to
move from city to city. This is progress, but how does it affect our
families and our family structure?

Fortunately, we do not have to concern ourselves with the family
which is whole or which is not in dispute. But what of the families
who have emotional traumas placed upon them for one reason or

112

another? Should they be afforded protection in situations where
unjust actions motivated by animosity, vindictiveness, and hostility
tear apart blood relationships?

The problem of grandparents' rights to visitation is no longer a
local issue. We need State statutes to protect people within the
boundaries of our States. However, when the people involved live
in different States or move from one State to another, then we
need Federal legislation available for the same reason that we need
State legislation, when the parties are confined to one single State.

Again, the court enforcement of this legislation is the last resort.
It is the motivating incentive for parties to reconcile their differ-
ences. It is the motivating incentive for parties to volunteer to seek
counseling in hopes of reconciling their family traumas. But it does
provide a last resort for injustices which may occur.

I have had an opportunity to review the Uniform Grandparental
Visitation Rights Act drafted by Roger Stephens which was submit-
ted to me when I was invited to these hearings. My written testi-
mony discusses it in depth, and I tried to analyze parts of it. It is a
mere skeleton. It is not definitive enough. I do not think it is clear.
It is a good theory, it is a statement of theory, it is not a good state-
ment of legislation.

I have some specific recommendations. The most obvious one
that I can make is that each State adopt some form of legislation
recognizing the problem of grandparents' rights to visitation and
providing some remedy which would be available to enforce these
rights. I would also suggest that State legislatures set forth a
scheme of mandatory counseling through use of professionals in
the behavioral sciences to help provide direction for families that
are in dispute and are suffering from the emotional traumas that
are usually present when an issue of grandparental visitation is in-
volved. This can be in the form of mandatory mediation, and I be-
lieve this is what the chairman was talking about and other people
here.

In Michigan, starting in July of 1983, we have new laws coming
into effect dealing with divorce, and these laws provide for manda-
tory mediation. The State bar questions whether or not it will be
successful and useful, and I would present one argument against
mediation that has been presented there for this committee to con-
sider, and that is if mediation is utilized other than binding media-
tion, and I do not believe that anyone has discussed binding media-
tion or arbitration, the problem with mediation is that if one party
feels they have lost, there is no actual enforcement, because a
court, a judge, someone with the legal authority that the laws dic-
tate and provide for is not making the decision.

So what happens is whoever loses in a mediation situation has a
right to an immediate appeal before the court. So unless the par-
ties are able to resolve their differences, and if so they would not
have been in court, they would have been able to resolve it be-
tween the two attorneys before they filed the petition, as soon as
one party loses the mediation level, they will file for a court hear-
ing. I want a judge to hear my case. So the attorneys are going to
have to try each case at least two times or we would have resolved
the problem before we got into the mediation. So this is the prob-
lem with a mediation concept other than a binding mediation. I do

113

not know what the solution is. I can tell you that that problem has
happened in counties where I have practiced where they have the
mediation such as Wayne County.

Mr. BiAGGi. How frequently?

Mr. Victor. Any time that the resolution that the mediators give
is perceived by one of the parties as a loss. That means if one client
says I really hate the other party and I am going to fight this to
the death, their contention is I either win everything or I appeal. If
there are reasonable people with reasonable attorneys who have
had some kind of help and guidance, you realize that no one wins
everything. There has got to be compromise, otherwise nothing
would be done.

Mr. BiAGGi. I am aware of that. On the other side of that, it
would seem people are resigned to compromising in some fashion —
I am trying to figure how effective that process is, even though you
may have some cases where you have losses and people are furious
and then

Mr. Victor. You are asking about the mediation^ concept, how
successful that would be?

Mr. BiAGGi. Yes.

Mr. Victor. I can be very honest with you. It is very limited, be-
cause the law is going to be enacted in July. It was done on a limit-
ed basis in one county, Wayne County, dealing with friend-of-the-
court matters, child custody, and things of this nature. I have had
extensive experience there. I would say a third of them were not
resolved and had to be appealed to a higher court or to the judge,
and I would say a majority of the ones that were not appealed were
not appealed because of the legal costs that would be involved.

Mr. BiAGGi. So you are really saying two-thirds of them were re-
solved? That is substantial.

Mr. Victor. That is substantial. The problem is, those were not
cases where you had heavy disputes. Those were cases of how much
child support should you pay or what day of visitation should you
have or how much. Starting in July 1983 the new law will involve
mediation for everjrthing dealing with child custody cases — in other
words, we are trying to take divorce out of the trial court's docket.
Then, after July I will be able to give you a better indication of
how it works.

The State had to find an alternative to take divorce out of the
courts. Think of it, 50 percent of marriages end in divorce. If that
were a disease, it would be an epidemic. These are all going to
court. Who is paying for the judges to hear the cases? You are
going to have to wait 3 years for a divorce trial? That is ridiculous.
So they had to find an alternative. The mediation is the alternative
they are attempting. As of next year we will know whether or not
it works.

I think it is something that the committee will look toward and
find if there are other States who already have mediation for these
kinds of disputes and to see what the percentages are of appeals. In
Michigan we have very few appeals from our trial court where we
have traditionally had these disputes resolved to the court of ap-
peals, and that is because the State law says the court of appeals
will not reverse a trial court's ruling unless they find an abuse of
discretion. For those lawyers on the panel, that means that the

114

court of appeals is going to have to slap some judge's hands if they
are going to overturn him. Otherwise they say that the trial court
is going to be your court of last resort, but legally we give you a
right to take it up.

Mr. BiAGGi. Does that not bring us back to where we are? We
heard some witnesses testify this morning that they are not satis-
fied or they would be wary, put it that way— they would be wary
about having the problem resolved by a judge.

Mr. Victor. The problem is that it is unfortunate, the five stories
that I heard, and I have heard many of them, and they are all un-
fortunate for real and true facts. However, I could have brought, if
they had wanted to come, an equal amount of people who have had
an opportunity to be in court, and I do not like the term victorious
or won, because nobody wins, nobody loses, but have been reunited
and they would say the system works.

Mr. BiAGGi. I do not know about the amount of traffic in various
courts across our land. I imagine some of them are less belabored
than others, but I know in the New York State courts it is just one
huge traffic jam. The Kudlers testified that they were— their
matter was bruited about from one judge to another, and in the
midst of all that, the judge is dealing with other matters as well, so
my thinking is that this kind of situation is delicate and difficult to
begin with, and there should be some kind of atmosphere, a stable,
tranquil atmosphere which assures the parties that there would be
a genuine, deliberate consideration given to the whole matter.

Mr. Victor. I go back and agree with ever5i:hing you have said,
Mr. Chairman. I think about the years in the 1960 s when I was
involved in high school and college activities and the civil rights
acts were talked about and pending. I remember reading and being
involved in debates on both sides of the question of whether or not
there should be civil rights legislation, should you force people in
their businesses or homes to do things that maybe they choose not
to for whatever reason. Should you put laws and make it manda-
tory or on a voluntary basis?

We have the same problem. I remember being 17 years old and
talking as a high school senior to one of the newspapers saying
that once laws are passed and put on the books, people's hearts
will sometimes be changed and biases will sometimes be overcome.
Sometimes we need somebody above us saying this is what is right,
and then sooner or later people follow through with that.

I suggest that Federal legislation, a statement nationally, recog-
nizing the rights of grandparents and grandchildren, is necessary.
May I also say something else that is not known, and I did not
want to be known in the State of Michigan, because I felt that it
would hurt my objectivity and my being the advocate for my cli-
ents in court.

^ My involvement in this area is not only as a litigant, as an ad-
versary for the litigants that are involved in these disputes, but I
have something similar to the people coming before you. I am not a
grandparent, not yet. I have a ways to go. My wife is here in her 9
month. But I was a grandchild and I am a grandchild. For 20 years
I was denied the opportunity to visit with my grandparents. It is
too late for me to have memories of being a grandchild and having
the opportunity that other grandchildren had.

115

I attempted to resolve disputes within my own family. My father
died very suddenly a year and a half ago. I was never able to re-
solve the disputes within my own family, and unfortunately they
continue in my mind. I never as a child grew up knowing that I
missed anything, because if you do not know what you are missing,
you do not miss anything. When I married my wife Denise iVz
years ago, 4 years ago, I came into her family and I saw for the
very first time a table for dinner with four generations sitting
around it, and I had never, ever perceived that before. I sat in a
living room and discussed things with a grandparent, with a grand-
mother, and I realized then as an adult that I had missed some-
thing.

What you do not have before you here, gentlemen and ladies, are
grandchildren. It is obviously a bit exploitive to bring children in
and have them speak, because as a child I did not know what to
say and I really did not know my feelings. As an adult, though, you
are better able to articulate feelings that you may have expressed
that you lost. I did lose those feelings, and I am here now not as an
attorney advocating a client's position but as a grandchild asking
for help and asking for guidance. If there is legislation, and I feel
that this is a land of laws, and I believe in that. Maybe I am naive,
but I will always believe in that. This is a land of laws. We govern
ourselves by our laws. We will be remembered by the laws that we
put on our books. I believe it is necessary and I believe it is time to
recognize this problem and attempt to resolve it. We, you, all of us,
will not be able to resolve the difficulties for everyone, but if we
make a record that there are legal rights of grandparents and
grandchildren, rights which should not be taken away because of a
death, a divorce, a separation or family trauma, and that these
rights exist, I think we make a statement, and I think it will be
followed in the years to come.

A simple look at the population scale will show that within the
next 10 to 15 years, in 20 years and beyond that, grandparents will
no longer be a small minority in the corner.

The baby boom of the 1940's will bring us grandparents of the
1980's and 1990's. I took a look at the 1980 census before I came
here today and if you look at the amount of people and numbers
that are of grandparental age now, we are talking about 36 percent
of our population, over 87,000 people.

This is going to increase because in another 10 to 20 years, you
are going to have the influx of a greater number of people who
were from my generation who will be grandparents.

These are the voters, these are the supporters of our country.
And these are people in need.

I think it is time we make a statement.

Mr. BiAGGi. The question is and has puzzled us and apparently
Professor Areen has questions about it as well, can the Federal
Governm_ent be involved in this issue and justify its involvement on
constitutional grounds? Either or both of you.

Professor Areen. I am glad you raised the issue, Mr. Chairman.
It is one of the issues I wanted to discuss today because I am con-
cerned that we not overpromise.

116

More legislation is needed. Better legislation is needed. I could
not agree with you more that better legislation will keep people
out of court and I consider that always a good thing to do.

I do not see anything in the Constitution that gives this body, as
powerful as it is, the authority to set standards for custody.

I can think of four very important things this committee can do,
however. The first you are doing now. There is an important role
in terms of publicizing this problem and providing some national
leadership in terms of recognition of the need for better State laws.

Second, you are in a position to work with both the States and
some of the important private groups, such as the National Confer-
ence of Commissioners on Uniform State Laws.

Third, it seems to me it is an appropriate role to Congress to set
up a national clearinghouse that might share information between
the States as to legal advances at the individual level. There is, as
you probably know, located in the Department of Health and
Human Services, a National Parent Locator Service that works to
locate missing children, or to track down missing parents for child
support.

It seems to me it would not be difficult to extend the authority of
that existing entity to reach a situation in which children are
taken out of State.

Fourth, as my colleague Mr. Victor, has mentioned, and I agree
with him, when you do have an interstate dispute, then there is
clearly a Federal role. I would suggest it may be in order to consid-
er a specific amendment to the Parental Kidnapping Prevention
Act which was alluded to earlier, 28 USCA 1738A.

It is an act intended to assure that we do not have conflicting
court decisions and to encourage and indeed enforce recognition by
one State of a decree in another— again, a change that would take
care of at least one of the problems we heard this morning.

Mr. BiAGGi. Mr. Craig.

Mr. Craig. Thank you, Mr. Chairman.

Professor Areen, you have touched on something that I was sit-
ting here rolling through my mind as Mr. Victor spoke, the real
question of can the Federal Government, can this Congress become
involved in promulgation and writing of laws that will solve this
problem or at least lend some strength toward solutions that you
have discussed?

I think a lot of people think if we can only get a Federal law, all
of this problem is going to go away, when I think you made the
point very clearly that although law in itself can establish pararn-
eters and directives, it is really at that court level and at the medi-
ation or the level of counseling where the real solutions come
about.

I guess my concern, and it is all dealing with the plight of the
child, we are awfully concerned about the grandparents at the
moment now and that is justifiable and I have witnessed those
kinds of traumas with grandparents.

I have to also say that we have to consider the child here and
well we should. The kind of excessive psychological turmoil that a
child can go through, sometimes it is too high a level.

Professor, how would you measure that turmoil; and how should
a judge evaluate it, recognizing the laws that are on the books —

117

and frankly, I come down on the side that this is a State priority
and prerogative and not a Federal prerogative.

Professor Areen. I think Dr. Derdeyne, who preceded us, under-
scored at the level of psychoanalytic concerns the damage that
kind of conflict can do to a child. I wish I had a simple measuring
rod for determining when there is too much conflict for a particu-
lar child.

There certainly is not one that we can establish at a national
level nor really even at a State level.

It is a determination that has to be made for a particular child.

So while we can set better national standards and better State
standards to encourage solution of the straightforward problems, in
the end, we have got to have solutions that are humane enough to
deal with a particular child.

There is no alternative in my view.

Mr. Craig. Mr. Victor, you mentioned, in giving the examples
you gave in your testimony — and I thought they were excellent —
that you were able to bring about some solutions to these difficult
programs.

At this time, based on the laws of the State of Michigan and a
couple more that you say may become law today or tomorrow or
very soon, are you saying that the laws that are currently on the
books of the State of Michigan are inadequate to handle the prob-
lems you are asked to deal with?

Mr. Victor. That is an excellent question. Congressman Craig.
My testimony, the written testimony, has a section dealing with in-
consistencies within Michigan itself.

I brought this to the attention of the legislature in the last 2
years in drafting of that legislation, which we feel was strengthen-
ing and hopefully brought about the change that Michigan has now
submitted to its Governor to pass.

The new legislation that Michigan has is not perfect as far as the
grandparents that I have represented feel, however, it does cure
the defect in all situations except when a parent does not want his
or her own parents to see the grandchild.

Those situations the legislature felt it should not deal with. All
other situations, when there was a death, a divorce, a situation
where there was an unwed parent or parents are not married and
there are children born, dealing with the scenarios I have submit-
ted to you, all of those scenarios will now be covered under Michi-
gan's laws.

Michigan's laws are still inadequate when dealing with the defi-
nition of best interests, dealing with visitation questions, they are
very good dealing with child custody questions, but there are no
laws dealing with what the court is to look to toward visitation.

Mr. Craig. Are you saying, then, in this case, that the laws
ought to override the right of the parent?

Mr. Victor. I believe

Mr. Craig. In custody of that child?

Mr. Victor. You are asking a question of parental rights versus
parental responsibility. You are dealing with a parent's right to be
sovereign within his or her own home and to make the final deci-
sions; is this correct?

Mr. Craig. Yes.

118

Mr. Victor. I am indicating that that is an extremely important
right and I am not a purporter of infringing on that right.

However, with that right, as with all other rights, there come re-
sponsibilities and if the rights and the responsibilities are playing
off of one another and the responsibility does not stand up to the
right that is given, there should be some intervention when there
is a deprivation and an injustice.

In these situations, parents have parental rights, but when they
fail to properly maintain those rights and live up to their responsi-
bilities, and when there is an injustice, then I think there should
be some type of program to come to court for help.

Mr. Craig. You are saying that it is then the responsibility of
the Federal Government to decide that right, or in the case of the
way you phrased it, that particular responsibility coinciding with
the right of the parent?

Mr. Victor. I feel that the Federal Government has a responsi-
bility to the citizens of our Nation to allow citizens of our Nation to
come to it for help when there is an injustice and they cannot re-
ceive relief within their own State.

I am suggesting that we have State laws to govern people within
their own States and they utilize those State laws, but when those
State laws are not in existence or when the State laws are confus-
ing at best or inconsistent within the States themselves, in Michi-
gan for the last 12 years, we have a prime example of that.

I do not know what will happen when and if this new legislation
is passed and how it will be interpreted.

I can tell you there has been tremendous confusion within our
State since we have had any laws at all.

Then I think there is a need for the citizens to turn somewhere
for help.

Mr. Craig. In other words, you are saying in the case of Michi-
gan, assuming that the Federal Government or this Congress or
this committee might move on choosing to legislate responsibility,
that this body holds more wisdom than the legislature of the State
of Michigan in this case?

Because it is apparently an area that the elected officials of the
State of Michigan, who also are determiners of rights and responsi-
bilities under State law, have said no, that is an area we will leave
alone because that is an area of individual right.

Mr. Victor. No; I think the legislature in Michigan has recog-
nized the responsibility and attempted to draft legislation to meet
that responsibility.

What I am indicating is that if there is a moving from one State
to another and let's say the grandparents in Michigan are seeking
visitation rights under the Michigan law and the parents say we
are moving to Toledo, Ohio, which is closer to Detroit than our own
capital is — and it is a real possibility — what do the grandparents of
the State of Michigan do?

Mr. Craig. Then you are saying the constitutional right of the
citizen to choose what framework of law he or she may wish to live
under in the case of two States differing should be abrogated?

Mr. Victor. I believe that the Constitution provides equal protec-
tion under the laws for all people.

Mr. Craig. In certain areas. That is correct.

119

Mr. Victor. That is correct. I believe under the interstate com-
merce laws of the Constitution — I hate those buzzers — is a clause
oftentimes used in situations where we have this type of diversifi-
cation, and could be utilized if the Congress felt a need to utilize it.

Mr. BiAGGi. Any more questions?

Mr. Hughes. Will the gentleman yield?

Mr. Craig. Yes.

Mr. Hughes. We are running out of time and I am going to have
to go.

Mr. Craig. I just wanted the Professor to respond in counter-
point to that.

Mr. Hughes. Go ahead then.

Professor Areen. I am not sure I can respond to all of the collo-
quy except to pick up at the end. I think my colleague and I are
not in disagreement on one point. I think he was conceding there is
no constitutional authority for Federal legislation governing child
custody and visitation within a particular State.

Now, if you pull in another State, then there is arguably authori-
ty to act. You have raised the more difficult question of whether it
is wise to act in that case and the answer is, it seems to me, that it
depends.

There is reason — and that is what the Congress demonstrated
last year in passing the Parental Kidnapping Prevention Act — to
make sure that States honor a thought-through decision, particu-
larly in the face of a kidnapping where someone flees simply to
avoid a court order.

Then it seems appropriate to say we will stick to the decision of
the State that had real jurisdiction over the child.

On the other hand, people have a constitutional right to move, so
you have to look at it case by case.

Mr. Craig. Thank you.

Mr. Hughes. That is just the point I wanted to make.

Mr. BiAGGi. That is a good point.

Mr. Hughes. One of the reasons the Parental Kidnapping Act
was passed was because we see the proceedings in courts frustrated
by forum shopping. One of the things we can provide is national
leadership. I quite agree with Mr. Victor that it is important for us
to try to develop uniform standards through the Commissioners
who have done a fairly decent job in developing uniform criteria.

Unfortunately, when they developed the Uniform Act for Di-
vorce, they neglected to even mention grandparents' rights.

It seems to me though, that this is important in the context of
what is best for a youngster, that it is a consideration that has to
be taken into account. If it is not considered by the court, I do not
think justice is being done.

We can do a number of things. We can do a better job of making
sure the Justice Department pursues those that take youngsters
from the court's jurisdiction, and try to identify where they are
and assist where States want to return them to the State that has
jurisdiction.

It seems to me we can do a better job of developing uniform laws.
We can provide national leadership in that regard, providing, as we
often have in the past, the incentives for States to determine they
need that uniformity throughout the land.

120

I think it works against the Federal structure when a State can,
by using its process, deprive another State of its sovereign right to
exercise jurisdiction, thereby frustrating visitation rights or any
other kind of rights.

So, I think there is a lot we can do and still recognize that,
historically, traditionally, and properly, visitation rights, like all
domestic matters, belong to the States. We can do a better job of
providing leadership.

As I view it, that is what both of you have said in essence and I
quite agree with it.

Mr. BiAGGi. Mr. Victor, Professor Areen, thank you very much
for your valued testimony.

Dr. Derdeyne and Dr. Kornhaber, thank you for your testimony
and all the grandparents that testified.

I think this hearing represents a very significant step forward.
We will get some clarification and see just exactly where we can go
and what is required by this.

I assure you this is not the last of it; it will be reflected in sever-
al substantional actions by the Congress.

We will simply have to adjourn at this point for a couple of rea-
sons, one, the bells are ringing again; and two, we should be out of
this room by 2 o'clock and we are 10 minutes overdue. The land-
lord is relentless here.

But I would really appreciate it if staff could stay in touch with
you for some further information, advice, and guidance.

I am very thankful for your presence and your contribution.
Hopefully together we can make the situation a littler better.

As I said at the outset and in the intermediate stages, I am opti-
mistic.

Thank you very much.

[Whereupon, at 2:10 p.m., the hearing was adjourned.]

APPENDIX

Prepared Statement of Doris Jonas Freed, Chairperson, Committee on Child

Custody, Section of Family Law

Mr. Chairman and members of the subcommittee, as chairperson of the American
Bar Association's Family Law Section's Child Custody Committee, I appreciate your
invitation to me to present to this Subcommittee my views in the form of an over-
view of the "Status of Grandparental Rights to Visitation Nation Wide," both as to
statutes and judicially.

You have also requested my views as to any federal remedies appropriate in pur-
suing this problem.

My name is Dr. Doris Jonas Freed. I confine my practice to family law, with par-
ticular emphasis on doing whatever can be done on behalf of the welfare of chil-
dren. I have written a number of books and articles, and lectured extensively on

this subject. r /-. j

The first part of my presentation will cover the Overview of the Status of Grand-
parental rights; My next comments will be addressed to possible remedies to amelio-
rate this problem.

part 1.— the status of visitation rights of grandparents: an overview as of

december 1, 1982 *

/. The common law

At common law, the general rule was that visitation would not be awarded over a
parent's or custodian's opposition. However, the general rule was subject to some
exceptions, and, in Pennsylvania at least, appears to have been subordinated to con-
cern over the child's best interests. The three major exceptions to the usual common
law rule are: (1) where there was an agreement or stipulation as to visitation, as for
example, incident to a divorce proceeding; (2) where the child has resided with the
person seeking visitation, as for example, where the child's custody was originally
awarded to a parent who lived with grandparents and the custodial parent died and
the surviving parent seeks a change of custody to him or her; and, finally, (3) where
it is demonstrated that the parent seeking custody is "unfit" under the prevailmg
notions of fitness at the time.

Despite early American decisions that the child's best interests are paramount,
the parental rights doctrine dominated common law decisions as to grandparental
visitation, where a fit parent who had not contracted otherwise sought to bar such
visitation. Most courts denied visitation to grandparents even in instances where
there had been a long and meaningful visitation with the child, although there are
a few decisions (from California and Pennsylvania) deciding otherwise.

The reasons given in common law decisions for denying visitation include the fol-
lowing: (1) Ordinarily the parent's obligation to allow the grandparents visitation is
a moral and not a legal one; (2) judicial enforcement of a grandparent's visitation
rights would divide parental authority thereby hindering it; (3) the best interests of
the child are not furthered by forcing the child into the center of the conflict; (4)
where there is a conflict between grandparent and parent, the parent alone should
be the judge, without having to account to anyone for his motives in denying visita-
tion; and (5) the ties of nature are the only efficacious means of restoring normal
family relations and not the coercive measures which follow judicial intervention.

Obvioulsy, the first reason given for withholding visitation begs the question by
giving the result as a reason. The issue is whether or not legal recognition should be

' This Overview is based in part on an updated article co-authored by Dr. Freed and Professor
Henry Foster entitled "Grandparent Visitation: Vagaries and Vicissitudes", Journal of Divorce,
Vol. V. Fall/Winter 1981 (The Haworth Press, 28 East 22nd Street, New York, New York 10010).

(121)

122

given to the grandparent's claim to visitation. The second reason given is not a
sound reason for an automatic bar to visitation and at most represents a factor to be
considered where it is shown that divided authority would place the child in a
double bind. The third reason given above is not convincing becasue the best inter-
ests of the child depend upon the overall circumstances and a gratuitous presump-
tion is not warranted. In this connection, it may be important to note that experts
on child developmet are generally agreed about the importance for the child to
maintain on-going meaningful relationships that are beneficial.

//. Statutes permitting grandparents ' visitation

Laws have been enacted in all but a minority of states in order to mitigate the
severity and uncertainty of the legal status and standing of grandparents at
common law to claim visitation privileges. We have found such statutes in Alabama,
Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minne-
sota, Missouri, Montana, Nevada; New Hampshire, New Jersey, New Mexico, New
York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas,
Utah, Virginia, Washington, West Virginia, Wisconsin, although these statutes vary
in details and coverage.

Unfortunately, despite recent revisions, some of the states having such statutes
still require that one or both parents be deceased for grandparents to be awarded
visitation rights. For example, such was formerly true in California (under the origi-
nal statute). New York (until the statutes were amended in 1974 and 1976), Michi-
gan (before statute was amended). New Jersey (until 1973 law which now permits
visitation also in cases where parents are divorced or living in different habitats)
and in Missouri, Montana and Rhode Island (where such still remains the law). Ala-
bama, Arkansas and Hawaii have no limitations, their statutes providing that in
any divorce or custody cases the court may grant visitation rights to grandparents;
Alaska's statute provides that such rights may be granted in actions for divorce,
legal separation or when one or both of the parents have died; the statutes in Con-
necticut, Illinois, Kansas and Michigan appear to avoid limitations, Florida provides
for such rights "as part of proceedings for dissolution of marriage". Florida, Iowa
and Louisiana permit grandparents to petition the court after divorce or separation,
or when a parent dies, and Iowa extends this to "where a child has been placed in a
foster home". Minnesota's statute covers the situation where the grandchild has re-
sided with the grandparents or they have had considerable contact with the child
and a parent is deceased or the parents seek a divorce. Oklahoma's unique statute
appears to provide that grandparents have visitation with their grandchild, and that
these rights persist even though the child in question has been adopted by a step-
parent.

///. Effects of adoption

Only a small minority of the states make reference to the effects of adoption on
the visitation rights of grandparents. In addition to Oklahoma, reference is made to
adoption in California, Colorado, Minnesota, Montana, New Jersey and Ohio, these
statutes permitting visitation rights to be awarded to a grandparent where the
adoption is by a stepparent or other grandparents. Since the problem of the effects
of an adoption upon the visitation rights of grandparents arises frequently and the
cases are in conflict, it would be wise for all states to cover this matter by an ex-
press statutory provision, and the distinction made between adoption by a steppar-
ent or grandparent and that by a stranger has considerable merit.

IV. Extension of visitation rights of grandparents to others

Recently, there has been an extension of visitation rights to other than grandpar-
ents. The statutes in Illinois, Kansas, Pennsylvania and Wisconsin provide that
great-grandparents may petition for visitation under the same circumstances as can
parents.

Kansas and Virginia extend the right to stepparents, whereas California, Hawaii,
Ohio and Utah permit visitation to be accorded to "anyone interested in the welfare
of the child" and in California, consideration is to be given to the "amount of per-
sonal contact between such person and the child" prior to the application for visita-
tion. Connecticut permits visitation to be awarded to "any third party including, but
not limited to grandparents", and the new Alaska statute permits visitation by an
"other person". Ohio provides that relatives may be granted visitation; Virginia in-
cludes "stepparents or other family members"; and Michigan specifies that there

123

may be visitation by "the maternal or paternal grandparents, or by others, by gen-
eral or specific terms or conditions".

V. Criteria

A. Best interests of the child. — As in New York, many, if not most, of these stat-
utes are qualified so that it must be found that visitation is in accordance with the
best interests of the child. Minnesota directs the court to consider the amount of
personal contact between the grandparent and the child, and Idaho requires a sub-
stantial relationship with the child. Although it may be superfluous to write such a
requirement into the statute, such provisions have the advantage of emphasizing
the important factor of the psychological relationship between the child and the
party seeking visitation.

A sound argument may be made that any person or relative, in addition to a
grandparent, should have standing to seek visitation rights where he or she has
maintained a substantial relationship with the child. It may be in the best interests
of the child to grant an aunt, or uncle, or even a non-relative visitation. Further,
the grant of visitation should not be restricted necessarily to cases where there has
been a parental divorce or one or both parents have died. As expressed in the Idaho
and Minnesota statutes, the crucial question should be the child's welfare. Assum-
ing the existence of a meaningful and beneficial relationship with a relative or a
third person, it may be more important to the child to preserve that relationship
than it would be for the custodian to have an absolute veto power over visitation.

In those states which do not have statutory provisions granting discretion to
award visitation rights to non^parents, legislative consideration should be given not
only to the policy basis for mitigating the common law, but also to an extension of
visitation rights to relatives and non-relatives who have stood in loco parentis or
have a substantial interest in the welfare of the particular child.

Several interesting issues have emerged as a result of the statutory construction
and judicial interpretation of visitation provisions. California in particular has de-
cided a series of cases which highlight two emergent issues, namely the effect of an
adoption of the child on the statutory visitation privilege, and the impact of animos-
ity or hostility between the custodian and the party seeking visitation on discretion-
ary awards of visitation.

New Jersey and Ohio agree with California that a stepparent adoption does not
terminate the visitation rights of grandparents. New Jersey's highest court has read
the adoption and visitation statutes as being in pari materia and awarded visitation
rights to the maternal grandparents despite an adoption of the child by its step-
mother who had married the father after the mother's death. As the California
court had done previously, the New Jersey court made a distinction between an
adoption by a relative, such as a stepparent, and an adoption by a stranger. An
Ohio decision discussed the conflict in authorities and held that a stepparent adop>-
tion was merely a factor to be considered by the court in the exercise of its discre-
tion to grant or to withhold visitation rights when there had been an adoption. The
court rejected cases from Kansas, Louisiana, Texas, and New York which had held
to the contrary.

B. Effects of animosity between child's custodian and grandparents. — Other than
the problem of reconciling visitation rights or statutes with the law and policy re-
garding adoptions, the most controversial issue in visitation cases has been what
weight, if any, should a court give to the existence of animosity between the parties.
As we have seen, the common law regarded the opposition of the custodian as suffi-
cient reason for denying visitation. Where there is statutory recognition of visitation
rights the mere existence of animosity alone usually has been regarded as an insuf-
ficient reason for withholding them. Perhaps Pennsylvania reached a sensible
result, even though there was no visitation statute, when a case was remanded in
order for the trial court to determine the basis for any alleged animosity. The trial
court in effect also was directed to retain continuing jurisdiction in order to deter-
mine what effect, if any, visitation had upon the child's welfare.

The courts in California, Georgia, Maryland, Pennsylvania, New Jersey, New
York and many other states now agree that animosity existing between parents,
stepparents and grandparents, in and of itself, is no bar to an award of visitation
rights, and in a number of court decisions, animosity has been offset by the fact that
grandparents have raised the child or had close contact with the child over a period
of time.

It is difficult to see why statutory visitation privileges should rest on a basis dif-
ferent from visitation rights generally, such as that by a divorced parent. The exist-
ence of animosity or hostility between the divorced parties, in and of itself, is not a

124

ground for withholding visitation. Although there is an esoteric but well-known ar-
gument that custodial parents should have a veto power over any and all visitation,
there is scant, if any legal, authority to back up the argument, and in fact, it has
been rejected almost universally.

At most, animosity may be a matter which invites exploration by the court to de-
termine its factual basis, or a factor to be considered in awarding and setting the
terms of visitation. Otherwise, as has been pointed out, the custodian may lift him-
self by his bootstraps by creating friction which he then points to as a reason for
denying visitation. Moreover, the approach should not be in terms of rewarding or
punishing feuding parties, rather the concern should be with the child's best inter-
ests. Especially where there has been a meaningful association between the child
and the party seeking visitation, the blame for existing hostilities ordinarily is irrel-
evant unless it has some direct bearing on the child's welfare. Obviously, grandpar-
ents may be good grandparents and yet for one reason or another, have had bad
relations with a son or daughter-in-law.

C. The child's wishes.— The matter of the child's preference regarding visitation
has been accorded the same weight as in custody cases generally. In other words, a
stated preference of an older child is a matter to be considered in an exercise of
discretion by the court, but the child's wishes are not determinative. In one case,
the Pennsylvania court gave the child's opposition to visitation as a reason for deny-
ing it. 'The child had said that she did not want to visit the grandparents because
"they fight my mother." An Ohio decision likewise denied visitation because the
child disliked the grandparents. The difficulty with these cases is that the child may
have been "brainwashed" or may be parroting what the custodial parent told him.

Where there are visitation statutes, a positive desire on the part of the child for
visitation should carry great weight, but a negative attitude on the part of the child
may require further exploration. An Illinois decision approached visitation in terms
of the right of the children to know and associate with grandparents and honored
the stated preference of the children. A New York decision held that the trial court
had placed undue emphasis upon the grandchildren's opposition to court-ordered
visitation.

D. The health of the child. The effect of visitation upon the health of the child is
another important factor in visitation cases, as well as in custody cases generally.
Where it is shown that visitation would have an adverse effect on the child's health,
generally it will be denied. The other side of the coin is shown by a California deci-
sion, where the court concluded that a termination of contact with grandparents,
who had stood in loco parentis with the child, probably would have an adverse effect
upon the child's health and welfare.

CONCLUSION

Since only a minority of states do not have statutory provisions permitting an
award of visitation to grandparents, or other concerned relatives or friends of the
child, there currently is greater judicial consciousness of the psychological theory of
the importance of existing associations and intergenerational contacts. If the best
interests of the childs is a meaningful concept, and the focal point in visitation, as
well as custody cases, it is clear that it is sound policy to nurture, rather than to cut
off close relationships. Properly, the recognition of visitation rights of grandparents
should be entrusted to the sound discretion of the court. It is not the grandparents'
proprietary interest in the grandchild which justifies as award of visitation or custo-
dy; it is the need of the grandchild to know and to have an association with con-
cerned grandparents. The pleasures grandparents may derive from that association
are merely a bonus, albeit a very precious one.

With reference to the two major issues in the visitation cases, that is, the effect of
the child's adoption upon visitation rights, and the weight to be given the existence
of animosity between the parties, we conclude that both issues should be approached
from the perspective of the child's best interests. Surely stepparent adoption or
adoption of the child by other relatives does not require insulation of the child from
contact with grandparents or other meaningful associations and it is only in the
case of non-relative adoption where an argument may be made that adoption poli-
cies demand that visitation be denied. On the issue of animosity and its role in visi-
tation cases, the cases are correct which conclude that there is no convincing reason
why the existence of a state of animosity should have any more effect when grand-
parents seek visitation than it does where visitation is awarded to the other parent.
In either event, it is a circumstance to be considered, but the child's welfare, includ-
ing his right to maintain meaningful associations, should be the controlling consid-
eration.

125

PART 2. — REMEDIES TO FACILITATE GRANDPARENT VISITATION

Any remedy to facilitate grandparental visitation should not be in the form of fed-
eral legislation, since this would be an unconstitutional intrusion into state law.

Perhaps the subject might be addressed by the National Conference of Commis-
sioners on Uniform State Laws. This Conference promulgates proposal model acts
which, when finalized, are offered to the states for their adoption in whole or in
part.

It would be up to the Conference, of course, to decide in the first instance, wheth-
er such a subject would be of sufficient importance to be the subject of its study and
work.

I thank you, Mr. Chairman and Members of the Subcommittee, for your invitation
to me to address you on this subject and to present my views.

Prepared Statement of Bettie J. LaMotte

GRANDPARENTS — THE OTHER VICTIMS OF DIVORCE AND CUSTODY DISPUTES

Mr. Chairman and members of the subcommittee; I am extremely pleased to have
this opportunity to present testimony on a subject extremely importance to me. I
would like to commend the subcommittee for undertaking these hearings. From per-
sonal experience I am aware of the emotional character of the issue. If nothing
more is accomplished, I hope the general public and the courts will come to under-
stand that there are indeed other victims of divorce and custody disputes.

As background, I would like to tell you a little about my family and the two most
important reasons I am presenting this testimony — Tiffany Allison LaMotte, aged 6,
and Tara Danielle LaMotte, aged 5.

My husband's son was married in 1973. It was certainly not a marriage made in
heaven. They were young, both in college, and, we believed, not ready to assume the
responsibilites that marriage and a family inevitably bring. After Tiffany's birth in
1976, problems began to surface. There were arguments, brief separations, and sub-
sequent reconciliations. Tara, a beautiful child who, I am told, borders on genius,
was the result of one of those reconciliations. The marriage, however, continued to
falter and the final separation came in 1980.

It is difficult to describe the depth of hatred and bitterness in this divorce. My
husband and I attempted whenever we could to bring reason to the situation for
Keith and his estranged wife, the children, and ourselves. In order that you might
better understand the bitterness, I would like to relate a portion of the last conver-
sation I had with the children's mother. I had called to talk with her and the girls.
She was cold, indifferent and uncompromising. Her final words: "You have another
grandchild. You can shower her with your affection. My girls don't need you and
you don't need them". I was devastated and heart-broken.

All effects to talk to or see the girls since that day in September 1980 have failed.
Their father was granted limited visitation pending the divorce and my husband
saw them in March 1981. I saw them last in July 1981. The mother now has success-
fully transferred the bitterness and hatred she feels toward us to the children. And
although their father's visitation has been increased, he is still unable to see them
because they now refuse to have anything at all to do with him. So successful has
been the alienation.

As you probably know, the State of Maryland recently enacted legislation which
allows grandparents the right to petition the court for visitation. I have carefully
researched the subject and read every article and case I could find with the aim of
pursuing the matter in court. However, attorneys I have talked with recommended
against pursuing legal action, arguing that in the end the true victims are the chil-
dren. Had we pursued the issue in court and won, would we have been able to with-
stand the emotional strain of the children running crying to their room in absolute
fear of us?

In Mimkon v. Ford (Supreme Court of New Jersey, 1975. 66 N.J. 426, 332 A.2d
199), the Court very eloquently stated what I believe to be an accurate description of
the grandparent-grandchild relationship. I would like to quote a portion of that case
for you:

"It is biological fact that grandparents are bound to their grandchildren by the
umbreakable links of heredity. It is common human experience that the concern
and interest grandparents take in the welfare of their grandchildren far exceeds
anything explicable in purely biological terms. A very special relationship often
arises and continues between grandparents and grandchildren. The tensions and
conflicts which commonly mar relationships between parents and children are often

126

absent between those very same parents and their grandchildren. Visits with grand-
parents are often a precious part of a child's experience and there are benefits
which devolve upon the grandchild from the relationship with his grandparents
which he cannot derive from any other relationship. Neither the Legislature nor
this Court is blind to human truths which grandparents and grandchildren have
always known."

I shared a very special relationship with my grandparents and want only to share
with my grandchildren some of my experiences and love.

The various state legislatures and the United States Congress can enact laws that
will permit grandparents the right to visit their grandchildren, but can they write
any law a provision that prevents a custodial parent from fostering bitterness and
hatred in the children.

I think not. It does not matter how many laws there might be on the books de-
signed for my benefit and the benefit of all other grandparents in the nation who
are forbidden to love and comfort their grandchildren. They are worthless unless
you are able to legislate compassion into divorce and custody.

I do not envy the task you have chosen. There are no easy answers. I would, how-
ever, like to see visitation laws amended in a way that would allow a non-custodial
parent to petition the court for visitation in degrees. For example, the non-custodial
parent could ask for visitation for himself only, for himself and the paternal grand-
parents, or for everyone in the family— aunts, uncles, and cousins. These natural
associations are so vital to the growing up process.

This is a difficult and emotional issue. I am deeply pleased that the subcommittee
has chosen to explore this important aspect of human relationships. If nothing is
accomplished legislatively, my hope is that you are able to publicize the issue and
that the courts will recognize the extent of the problem and take it into account
when deciding visitation.

I understand that Tiffany and Tara are accomplished young ballet dancers. I
would give just about anything if I could attend one of their recitals. It's Christmas
and I would like to share the joy and excitement of Santa's visit, the school play
and everything that makes Christmas a special time for children.

Thank you for affording me this opportunity to share with you my very personal
views on this emotional issue.

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Full text of "Grandparents : the other victims of divorce and custody disputes : hearing before the Subcommittee on Human Services of the Select Committee on Aging, House of Representatives, Ninety-seventh Congress, second session-[Ninety-eight Congress, first session]"

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