Change law to modify grandparent visitation

THE ISSUE The state Supreme Court has struck down a law that gives broad visitation rights to grandparents.

Hawaii legislators enacted a feel-good law in 1993 intended to provide grandparents reasonable visitation rights that "are in the best interests of the child." However, the government has no business meddling in such basic parental decisions except to protect a child from harm, and the state Supreme Court properly struck down the law this month as unconstitutional. The law needs to be amended to comply with the state and federal constitutions.

The ruling is consistent with a U.S. Supreme Court decision in 2000 finding that a judge requiring a parent to succumb to grandparents' visitation rights violates the due-process clause of the 14th Amendment protecting a person's "liberty."

The federal high court had ruled as early as 1925 that "liberty" includes parents' right to "direct the upbringing" of their children. The privacy provision in Hawaii's Constitution protects a person's decisions regarding "family relationships ... without unjustified government interference."

A Hawaii couple asserted the right to visit their 6-year-old grandchild in 2003 despite objections by the child's mother; the father had moved to California after the divorce a year earlier. Family Court Judge William S. Chillingworth properly rejected the grandparents' claim to visitation rights.

The legislative committee that tailored the Hawaii law reasoned that grandparents' visitation should be protected unless it "would adversely affect the reasonable visitation of the parents." Courts in other states have determined that only demonstrable "harm to the child" would warrant governmental interference.

Hawaii's law includes no "harm to the child" standard, and Justice Paula A. Nakayama wrote in the Supreme Court's opinion that reading such a standard into the law "goes beyond interpretation and essentially constitutes judicial legislation." Legislators in the upcoming session should consider adopting such a standard to make the law constitutional.