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Grandparents are going to court to gain right to visit grandchildren

Karen M. Thomas
The Dallas Morning News Page 1C, © 2004 Information Access Company. All rights reserved. © 2004 The Dallas Morning News, L.P.

Last Christmas, Beverly Bain of Dallas sent what she thought was the perfect gift to her grandson.

She paid to have a star named after him and mailed him a certificate, map and book. The present came back, like all the others she has sent over the years since she last saw Matthew, now 17. The frame was smashed, the certificate torn and the book shredded.

"I put it away in the attic," the 68-year-old grandmother says. "I will show it to him one day and tell him all these years how I tried to get through to him."

The last time she saw Matthew, her grandson was almost 5. He now lives in El Campo with his mother, Ms. Bain's daughter, Carolyn Wagner, his stepfather and sister. Ms. Bain and her daughter have spent nearly a decade in court battling over Matthew.

"There has been a lot said that is not true," says Ms. Wagner. "I don't want to reopen wounds, but my son was a pawn in this. The case wasn't actually about Matthew. He was something to be used regarding unresolved issues between my mother and myself."

Ms. Bain says she and her husband, who has since died, argued with Ms. Wagner over her lifestyle. Ms. Wagner, who is divorced from Matthew's father and has since remarried, is reluctant to talk about her relationship with her mother but acknowl

Beverly Bain's Christmas gift to her grandson, Matthew, was returned smashed and in pieces. She hasn't seen Matthew in 12 years.

Ms. Bain keeps a lock of her grandson's hair from his first haircut.

Grandparents increasingly petition courts for visitation rights edges those differences.

Their painful battle is part of a growing number of court cases where grandparents seek either to visit their grandchildren or gain custody of them. At issue is whether fit parents can be forced by law to allow grandparents visits with the children.

Over the past two decades, the often-bitter cases have flowed into courtrooms, causing each state to develop laws to decide how and when grandparents and others can seek visitation.

Attorneys and family experts say the cases have grown partly because of soaring divorce rates. Some grandparents have petitioned for visitation when a former daughter- or son-in-law has forbidden them to see the grandchildren.

Other cases are caused partly by grandparents left to raise or care for grandchildren when their parents are unable because of drug and/or alcohol addiction. Some grandparents find themselves cut off from grandchildren when families move far away, while others, like Ms. Bain, find themselves at odds with adult children.

And there is what one attorney calls the "AARP factor." Older Americans have organized nationally and wield a considerable amount of political clout.

"Grandparents are not sitting back twiddling their thumbs in the rocking chair saying, "I'd sure like to see Jimmy if his mom would let me,' " says Mike McCurley, a Dallas family law attorney who has handled several such cases. "They're going to court."

In Texas, grandparents can petition the courts for visitation when the parents are divorced, separated or when one parent has died and if the court decides the visits are in the best interest of the children.

According to court documents filed at Wharton County District Court, visitation rights for Ms. Bain were left up to Matthew. The 17-year-old has chosen not to see his grandmother.

The Texas law and those of other states could soon change. The U.S. Supreme Court agreed last month to take on a Seattle case after the grandparents in the suit were granted visitation rights only to lose them on appeal.

The high court's ruling, expected sometime next year, could either make it tougher for grandparents to gain visitation rights or help states make it easier to grant grandparents visits.

At issue in the Seattle case is whether grandparents have to prove that their grandchildren would suffer harm if they were denied visits. If the Supreme Court affirms that ruling, it would be much harder for grandparents nationwide to seek visitation.

Most state statutes now call only for the courts to weigh the children's best interests.

"Proving harm would be a much higher threshold and standard," says Rochelle Bobroff, an attorney with the American Association of Retired Persons. AARP has filed a brief in support of grandparents' rights.

For some grandparents, no matter how the courts rule, they still feel devastated.

One Tyler grandmother, who asked to remain anonymous for fear of losing the right to see her grandchildren, says she successfully petitioned for visitation rights.

She is now allowed to see her granddaughters, ages 3 and 9 months, for three hours every other Sunday in the children's home. Her oldest granddaughter lived with her for nearly three years until her daughter moved out shortly after the second baby's birth.

"It is like a death," she says. "I was taking care of them and, out of the clear blue, suddenly there was nothing. We don't know what hit. It's just horrible, especially for the 3-year-old. I don't understand it at all, so I know she doesn't."

The grandmother, along with her mother, the children's great-grandmother, decided to petition the court for visitation.

"We were terrified," she says. "I didn't sleep and I cried all the time. I didn't want to take over [with the children]."

The visitations now, she says, aren't long enough.

"You are there and then you are gone. They won't let us take any pictures of the children. I have begged. It's all I have. But [my daughter] has told me in front of the 3-year-old, "If you don't like it, tear your ass out of the door.' "

For now, the grandmother says she is simply trying to keep the peace between herself and her daughter. She has also joined a local group where she is training to become a child advocate so that she can help other families.

Helping others is what Beverly Bain has decided to do, too. For more than a decade, she has headed up grandparent support groups and is holding meetings for Grandparents for Intergenerational Family Ties, or GIFT. The group meets regularly at her home where they study law together and support each other as they seek visitation rights.

"I was so upset I didn't know which way to turn," Ms. Bain says. "I thought I must be the only grandmother who can't see their grandchild. It's such a lonely thing. You can't really talk about it with your friends because they are all seeing their grandchildren and you can see it in their eyes. They are thinking, "You seem like such a nice person.'

"What is it that you're doing that you can't see your grandchildren?"

Besides supporting one another, the group also battles for grandparents' rights.

"We feel like children should have their family unless there is a good reason not to," she says. "Grandparents are not Mom and Dad and they shouldn't take the place of Mom and Dad. But they are family."

Over the years, Ms. Bain estimates that she and the group have helped "hundreds" see their grandchildren again. But her work hasn't helped her see Matthew.

For Ms. Wagner, the issue isn't really about grandparents' rights. It's about what she thinks is best for her child.

"I think that, by and large, in an ideal world, grandparents can be a very vital part of the child's life. But there are always extenuating circumstances, and for some it is not beneficial. It is detrimental," she says.

The court battles, she says, have drained her family's resources.

"It has taken my son's college money, everything. It got to the point where we were working three jobs to support the attorneys," she says.

And it has been painful for her as well. She says she never intended for her mother and her now--deceased father not to see her son. But over the years, "it became a three-ring circus, and Matthew was bearing the brunt of it."

Both mother and daughter describe an incident last year, in which Ms. Bain used the local newspaper to find people who would help her contact Matthew.

"People came up to me in the grocery store and said, "I know who you are. How could you do that to your mother?' It's been really awful," she says.

Now that Matthew is 17, Ms. Bain says she will simply wait until he turns 18.

"I know that he believes all sorts of ridiculous things," she says. "Once he is an adult, at 18, I plan to contact him and try and clear my name."

MORE INFORMATION

For more information about Grandparents for Intergenerational Family Ties (GIFT), call 214-824-2960. The group meets every third Sunday from 2 to 4 p.m.

For more information about AARP's Grandparent Information Center, call 202-434-2296. The e-mail address is GIC@aarp.org.

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