Grandparents are very important to the family unit and often provide a stable and loving figure in a child’s life. Parents, however, are granted the fundamental Constitutional right to make decisions concerning the rearing of their child. Troxel v. Granville, 530 U.S. 57 (2000).
Many would argue that it is in the best interest of the child to spend time with their grandparents. This argument may be popular, but it is the parent that is tasked and granted the right to determine what is in the best interest of the child.
In Louisiana, the parent of a deceased, interdicted (mentally or physically unable to take care of his person or manage his estate), or incarcerated party is entitled to reasonable visitation rights to that person’s child during the child’s minority, if the Court finds that such visitation rights would be in the best interest of the child. La. R.S. 9:344.
This strong deference to the Court in determining the “best interest of the child" was exactly why the state law in Troxel was ruled unconstitutional. The state law in Troxel gave the Court a presumption that it is in the best interest of the child to spend time with their grandparents. The Louisiana law (La. R.S. 9:344) ultimately provides this same presumption in that a parent must essentially bear the burden of proving the grandparent unfit. Practically, if the parent fails to show the grandparent undeserving of the visitation, the grandparent will be awarded “reasonable" visitation.
According to the United States Supreme Court in Troxel, this Louisiana law should be unconstitutional in that it takes away a parents fundamental right to rear their child. Specifically, the Louisiana law places the decision of whether visitation with the grandparent is in the best interest of the child with the court instead of with the parent.
Family Law Attorney