This article originally appeared in a somewhat different form in the July 1999 issue of Divorce Litigation. copyright © 1999 National Legal Research Group and Laura Wish Morgan. All rights reserved.
THE CHILD SUPPORT OBLIGATIONS OF GRANDPARENTS
Laura Wish Morgan
A recent California case reiterated what is the law in all states, and is, indeed, the public policy of the federal government as evidence by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105: "A child's right to support is owed by a child's parents, not the state." City and County of San Francisco v. Garnett, 70 Cal. App. 4th 845, 82 Cal. Rptr. 2d 924, 928 (1999). This statement can be taken one step farther: "A child's right to support is owed by anyone the government can somehow make pay, not the state."
This article will focus on the obligation of grandparents to pay child support for their grandchildren. This article will also discuss briefly the right of grandparents to collect child support on behalf of grandchildren in their care and custody.
II. GRANDPARENTS' DUTY TO PAY CHILD SUPPORT
A. The Common Law Generally No Duty of Support
At common law, it is the biological or adopted parents who owe a duty to support their children. This obligation is not dependent on marriage, but on a "moral and social obligation" to support the children one has brought into the world. E..g., Dubroc v. Dubroc, 388 So. 2d 377 (La. 1980 (child support is a duty imposed by the fact of maternity or paternity); Goldberger v. Goldberger, 96 Md. App. 313, 624 A.2d 1328, cert. denied, 332 Md. 453, 632 A.2d 150 (1993) (when a parent brings a child into the world, he obligates him/herself to support the child to the best of his/her ability); Wilsey v. Wilsey, 253 Mont. 85, 831 P.2d 590 (1992) (child support is a social and moral obligation); Monmouth County Division of Social Services on behalf of D.M. v. G.D.M., 308 N.J. Super. 83, 705 A.2d 408 (Ch. Div. 1997) (child support is a duty imposed by natural law); Hur v. Virginia Department of Social Services ex rel. Klopp, 13 Va. App. 54, 409 S.E.2d 454 (1991) (child support is a duty imposed by natural law); State v. Duprey, 149 Wis. 2d 655, 39 N.W.2d 837 (Ct. App. 1989) (child support is a human and social responsibility). A recent Connecticut case stated the obligation to support one's child thus:
The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education, and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.
State of Miranda, 245 Conn. 209, 715 A.2d 680, 687 (1998) (quoting In re Adoption of Webb, 14 Wash. App. 651, 653, 544 P.2d 130 (1975).
On this foundation that a parent is responsible for the support of his or her child was built the general principle that a grandparent is not responsible for the support of his or her grandchild. E.g., In re Gollahon, 303 Ill. App. 3d 254, 707 N.E.2d 735 (1999); Blalock v. Blalock, 559 S.W.2d 442 (Tex. App.-Houston [14th Dist.] 1977, no writ).
This principle is in direct conflict with filial support laws, part of the common law of the states, which trace their beginnings to the Elizabethan Poor Law of 1601. The Elizabethan Act of 1601 for the Relief of the Poor, 43 Eliz. 1, c. 2, § VI (1601) (as amended), provided as follows
[T]he father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame and incompetent person, or other poor person not able to work, being of a sufficient ability, shall, at their own charges, relieve and maintain every such poor person.
(Emphasis added.) The Elizabethan Poor Laws were generally adopted in the American colonies. In the 1950s, 45 states and the District of Columbia still had poor laws on the books. E.g., N.J.S.A. § 44:1-140 (repealed 1975). See generally Richard Mandelker, Family Responsibility Under American Poor Laws, Parts I and II, 54 Mich. L. Rev. 497, 54 Mich. L. Rev.607 (1956). William Tratner, From Poor Law to Welfare State: A History of Social Welfare in America (4th ed. 1989) (history of English poor laws in the United states).
Despite the arguable existence of a common law obligation of grandparents to support grandchildren when they need support, courts refused to find such a duty based on the poor laws. This was made explicit in Levy v. Levy, 536 So. 2d 742 (La. Ct. App. 3 Cir. 1988). In that case, a mother brought suit against the paternal grandparents of her two minor children seeking an award of child support under Louisiana's version of the Elizabethan Poor Law found at L.S.A.-C.C. art. 229. This statutes provides:
Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.
Based on this statute, the trial court ordered the grandparents to pay support, and the grandparents appealed.
The appellate court held that the grandparents could not be held liable for child support. The court stated that the father had the primary obligation to provide child support, and no obligation could be imposed on the grandparents "so long as his whereabouts are reasonably ascertainable and judicial proceedings can be taken against him to obtain child support." 536 So. 2d at 744. Thus, even under the poor laws, under the common law, grandparents do not have an obligation to pay child support as a primary obligation.
B. The Common Law Exception Grandparents Acting In Loco Parentis
It is well accepted that stepparents do not have a duty to support a stepchild, except when the stepparent is standing in loco parentis to the stepchild. See Laura Wish Morgan, The Rights, Duties, and Responsibilities of Stepparents to Their Stepchildren: Support, 8 Divorce Litigation 166, 169 (September 1996). When a stepparent does stand in loco parentis to a stepchild, the stepparent's child support liability is still secondary only. The natural parent retains the primary duty to support the child. E.g., Utah Code Ann. § 78-45-4.2 (1992) (the duty of a stepparent to support a stepchild does not relieve the natural parent of his or her duty of support); Monroe County Department of Social Services on behalf of Palermo v. Palermo, 192 A.D.2d 1114, 596 N.Y.S.2d 252 (4th Dept. 1993); Moyer v. Moyer, 122 N.C. App. 723, 471 S.W.2d 676 (1996); Brandreit v. Larsen, 442 N.W.2d 455 (N.D. 1989); Harmon v. Department of Social & Human Services, 134 Wash. 2d 523, 951 P.2d 770 (1998).
The same principle holds true for grandparents: a grandparent does not have a duty to support a grandchild, except when the grandparent is standing in loco parentis to the grandchild. E.g., Ex Parte Pisxcomb, 660 So. 2d 986 (Ala. 1994); Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337 (Ariz. 1953); Austin v. Austin, 22 N.W.2d 60 (Neb. 1946). See also Bennett v. Bennett, 390 S.E.2d 276 (1990) (grandparents stood in loco parentis to grandchild while child was in their custody, and could therefore take advantage of family immunity doctrine in tort action). When a grandparent does stand in loco parentis to the grandchild, the grandparent's child support liability is still secondary only. The natural parent retains the primary duty to support the grandchild.
A comparison of two cases will illustrate this obligation. In Savoie v. Savoie, 245 N.J. Super. 1, 583 A.2d 762 (App. Div. 1990), the husband (Richard) and wife (Jean) were married for over thirty years. Their oldest child had a child, J.L., out of wedlock. Richard and Jean were granted temporary custody of their granddaughter J.L. After Richard and Jean separated, Jean initiated proceedings to compel Richard to pay child support for their grandchild, and a temporary order of support was entered. The final judgment of divorce granted Jean custody of J.L., and order Richard to pay Jean support for J.L. From that order Richard appealed.
The court conceded that ordinarily, a grandparent has not obligation to support a grandchild. In this case, however, Richard assumed an in loco parentis relationship with his granddaughter since three days following her birth. Because he undertook to support and raise her, and since this conduct effectively precluded J.L. from being placed for adoption, Richard was estopped from denying his obligation to support J.L.
By contrast, in Baker v. Baker, 866 P.2d 540 (Utah Ct. App. 1993), the husband (Dan) and the wife (Lujuana) were divorcing after twenty years of marriage. During the marriage, Dan and Lujuana took in two of their grandchildren to live with them. During the divorce proceedings, Lujuana claimed that the her expenses for the grandchildren should be considered in the alimony award, especially since Dan had encouraged Lujuana to take the children in. The court refused to consider the grandchildren in any way, even in fashioning an alimony award, because Dan's obligation to them could only be imposed by applying the doctrine of in loco parentis. Once he had moved out of the house, he was no longer in loco parentis to the grandchildren and thus could not be responsible for their support:
While it is well settled that the trial court must consider the financial condition and needs of the receiving spouse in determining alimony, to include the expenses related to the grandchildren would be tantamount to giving a child support award for the grandchildren. Although Mr. Baker does have a statutory duty to support his children, he has neither a statutory not a common law duty to provide support for his grandchildren. Accordingly, the trial court did not abuse its discretion in finding that the expenses attendant to the grandchildren were not relevant to, not to be considered in, the award of alimony or child support.
866 P.2d at 546.
The difference between these two cases rests on the nature of the grandparent/grandchild relationship. In Savoie v. Savoie, there was a court order that the grandfather had assented to, granting him and his wife custody of his grandchild. Consequently, he could not break off his duty to support his grandchild merely be ending the in loco parentis relationship. By contrast, in Baker v. Baker, there was no court order for custody. Thus, the in loco parentis relationship was terminable at will; once the in loco parentis relationship was terminated, there was no longer a duty of support.
When a grandparent is ordered to pay child support for a grandchild under the in loco parentis doctrine, then the state's child support guidelines apply. Pruitt v. Pruitt, 669 So. 2d 931 (Ala. Civ. App. 1995).
C. New Statutory Liability
A little noticed provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193, 110 Stat. 2105, also known as the Welfare Reform Act, amended 42 U.S.C. § 666(a) by adding paragraph 18. This statute provides as follows:
(a) Types of procedures required: In order to satisfy section 654(20)(A) of this title [i.e., have in place such procedures as would entitle a state to receive federal funds for child support enforcement], each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:
(18) Enforcement of orders against paternal or maternal grandparents. Procedures under which, at the State's option, any child support order enforced under this part with respect to a child of minor parents, if the custodial parent of such child is receiving assistance under the State program under part A of this subchapter, shall be enforceable, jointly and severally, against the parents of the noncustodial parent of such child.
Under this provision, states are encouraged, but not required, to enact procedures under which any child support order relating to minor parents, whose custodial parent receives public assistance, will be enforceable jointly and severally against the parents of the noncustodial parent of the child.
To date, thirteen states have enacted a statute that provides for such grandparent liability for child support. Some of the statutes were enacted in the wake of 42 U.S.C. § 666(a)(18), and limit liability of grandparents to those cases where the parents of the child are minors and the custodial parent is receiving public assistance. Other states have statutes that predate the Welfare Reform Act, and are modeled more along the lines of the Elizabethan Poor Laws.
(1) Ariz. Rev. Stat. Ann. § 25-810: A. The parent or parents having custody or control of the putative mother or father may be joined as defendants in the action if the putative mother or father is a minor or was a minor at the time the action was commenced. The parents may be held jointly and severally liable with the minor until the minor reaches the age of majority.
(2) Idaho Code § 32-706(4): In a proceeding for the support of a child of a minor parent the court may order the parent(s) of each minor parent to pay an amount reasonable or necessary for the support and education of the child born to the minor parent(s) until the minor parent is eighteen (18) years of age, after considering all relevant factors which may include: (a) The financial resources of the child; (b) The financial resources of the minor parent; (c) The financial resources, needs and obligations of the parent of the minor parent; (d) The physical and emotional condition and needs of the child and his or her educational needs; and (e) The availability of medical coverage for the child at reasonable cost.
(3) 305 I.L.C.S. § 5/10-10: Actions may also be brought under this Section in behalf of any person who is in need of support from responsible relatives, as defined in Section 2-11 of Article II who is not an applicant for or recipient of financial aid under this Code. In such instances, the State's Attorney of the county in which such person resides shall bring action against the responsible relatives hereunder. If the Illinois Department, as authorized by Section 10-1, extends the support services provided by this Article to spouses and dependent children who are not applicants or recipients under this Code, the Child and Spouse Support Unit established by Section 10-3.1 shall bring action against the responsible relatives hereunder and any support orders entered by the court in such cases shall provide that payments thereunder be made directly to the Illinois Department.
(4) Md. Code Ann., Family § 5-203(c): Support obligations of grandparents. If one or both parents of a minor child is an unemancipated minor, the parents of that minor parent are jointly and severally responsible for any child support of a grandchild that is a recipient of temporary cash assistance to the extent that the minor parent has insufficient financial resources to fulfill the child support responsibility of the minor parent.
(5) Mo. Rev. Stat. § 454.400(2)(16) In addition to the powers, duties and functions vested in the division of child support enforcement by other provisions of this chapter or by other laws of this state, the division of child support enforcement shall have the power: To enforce support orders against the parents of the noncustodial parent, jointly and severally, in cases where such parents have a minor child who is the parent and the custodial parent is receiving assistance under the state program funded under Part A of Title IV of the Social Security Act.
(6) N.H. Rev. Stat. Ann. § 167:3-a: Assistance rendered under this chapter or RSA 161 to anyone who is the child born of an unwed minor whose father or mother, grandparent of the child born of an unwed minor, has a weekly income or other resources more than sufficient to provide a reasonable subsistence compatible with decency and health, may be recovered from such grandparent in the same manner and by the same proceedings as provided in RSA 167:2 and 167:3 for recovery from other legally liable relatives.
(7) N.C. Gen. Stat. § 50-13.4: In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild's support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child's conception, the parents of both minor parents share primary liability for their grandchild's support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child's conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated
(8) Ohio Rev. Code Ann. § 3109.19(B)(1): If a child is born to parents who are unmarried and unemancipated minors, a parent of one of the minors is providing support for the minors' child, and the minors have not signed an acknowledgment of paternity or a parent and child relationship has not been established between the child and the male minor, the parent who is providing support for the child may request a determination of the existence or nonexistence of a parent and child relationship between the child and the male minor pursuant to Chapter 3111. of the Revised Code. (2) If a child is born to parents who are unmarried and unemancipated minors, a parent of one of the minors is providing support for the child, and the minors have signed an acknowledgment of paternity that has become final pursuant to section 2151.232, 3111.211, or 5101.314 of the Revised Code or a parent and child relationship has been established between the child and the male minor pursuant to Chapter 3111. of the Revised Code, the parent who is providing support for the child may file a complaint requesting that the court issue an order or may request the child support enforcement agency of the county in which the child resides to issue an administrative order requiring all of the minors' parents to pay support for the child.
(9) R.I. Gen. Laws. § 15-5-16.2(g): In any proceeding to establish support for a minor child whose adjudicated parent is a minor (minor-parent), the court or its magistrate may order a grandparent of the minor child to reimburse the department of human services in an amount not to exceed the total amount of cash assistance benefits paid to or for the minor child pursuant to chapter 5.1 of title 40 until such minor-parent reaches the age of eighteen (18), less any payment made to the department by such minor parent. It is hereby declared that the obligation of reimbursement for such minor child shall be the joint and several responsibility of the minor parent and the grandparent(s) until the minor parent reaches the age of eighteen (18) and provided, however, that each joint obligor shall have a right of contribution against each joint obligor, which right shall be enforceable by an action in the family court.
(10) S.C. Code Ann. § 20-7-936: When a child is born to parents, either or both of whom are unmarried and under eighteen years of age, the Child Support Enforcement Division of the State Department of Social Services may pursue support and maintenance of that child from one or both of the child's maternal and paternal grandparents as long as the parent of the child is under eighteen years of age.
(11) S.D. Codified Laws § 25-5-18.2: The parents of a minor mother or minor father may be required to contribute to the support of their grandchild according to their financial means until they are no longer legally responsible to support the minor mother or minor father in accordance with § 25-5-18.1.
(12) Wis. Stat. § 49.90(1)(a)2. Except as provided under subs. (11) and (13)(a), the parent of a dependent person under the age of 18 shall maintain a child of the dependent person [i.e., grandchild] so far as the parent is able and to the extent that the dependent person is unable to do so. The requirement under this subdivision does not supplant any requirement under subd. 1. and applies regardless of whether a court has ordered maintenance by the parent of the dependent person or established a level of maintenance by the parent of the dependent person.
(13) Wyo. Stat. Ann. § 42-2-103(e): In administering this section and in addition to other requirements imposed under this chapter and the Wyoming Medical Assistance and Services Act and federal rule and regulation, the department shall by rule and regulation: (ii) Require an unmarried parent under the age of eighteen (18) and the dependent child of the minor parent to reside in the household of a parent or in a supervised setting with an adult relative or court appointed guardian or custodian in order to qualify for assistance under W.S. 42-2-104, unless the minor parent is emancipated under law. Assistance under this paragraph shall be payable to the parent, relative or court appointed guardian or custodian on behalf of the minor parent and the dependent child. The income and resources of the parents shall be considered in determining eligibility for assistance under W.S. 42-2-104. If the minor custodial parent is living with a qualified person other than a parent and except for exemptions specified by department rule and regulation, the department shall
through local child support enforcement agencies, enforce child support obligations of the parents of each minor parent, including the parents of the noncustodial minor parent. The department shall waive the requirements of this subsection if the only available households contain an individual who has been convicted of violating W.S. 6-4-402 or who has been charged with violating W.S. 6-4-402 and the charges have not received final disposition. The department shall assist law enforcement officials and the family of a minor mother to pursue the filing of criminal charges against the father of the minor mother's child if the minor mother conceived her child while under sixteen (16) years of age and the father was at least four (4) years older than the minor mother at the time of conception.
Congress hoped that by spurring states to enact such legislation holding grandparents responsible for the child support of their grandchildren when the grandchildren's parents are minors, parents would teach their children about birth control, abstinence, and the dangers of teenage pregnancy. PRWORA § 101.
D. Grandparent Support in the Context of Grandparent Visitation
At common law, a relative of a child other than a mother or father lacks any legal right to visit or communicate with a child when a parent forbids such contact. This common-law rule is grounded in the recognition that parents have a constitutionally protected right to determine their child's companionship, care, custody, and management. See generally Samuel V. Schoonmaker III, William H. Narwold, Roberta Hatch, & Karen Goldthwaite, Constitutional Issues Raised by Third-Party Access to Children, 25 Fam. L.Q. 95 (Spring 1991). This constitutional right is derived from the Fifth and Fourteenth Amendments of the United States Constitution, which proscribe governmental interference with individual "liberty." E.g., Santosky v. Kramer, 455 U.S. 745 (1982); Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981).
By no means, however, is this right absolute. The state, in its role as parens patriae, is vested with the power to consider the well-being of its children/citizens. The state may therefore, in considering the best interests of the child, deem that certain kinds of visitation for a child are in the child's best interests. Under this power to grant visitation where such visitation is in the best interests of the child, beginning in the 1970s and continuing into the 1980s, all states enacted statutes granting grandparents some kind of visitation rights, deeming that this type of visitation was in the child's best interests. See Michael v. Hertzler, 900 P.2d 1144, 1151-53 (Wyo. 1995) (appendix A listing state statutes). See generally Catherine Bostock, A Survey of Grandparent Visitation Laws in the Fifty States, 27 Colum. J.L. Soc. Probs. 319 (1994); Anne Marie Jackson, The Coming of Age of Grandparent Visitation Rights, 43 Am. U. L. Rev. 563 (1994); Laura Wish Morgan, Grandparent Visitation Rights: Challenges and Solutions, 4 Divorce Litigation 248 (December 1992); Richard S. Victor, Michael A. Robbins, Scott Bassett, Statutory Review of Third-Party Rights Regarding Custody, Visitation, and Support, 25 Fam. L.Q. 19, 22-23 (Spring 1991); Edward M. Burns, Grandparent Visitation Rights: Is It Time For the Pendulum to Fall?, 25 Fam. L.Q. 59 (Spring 1991).
In the 1990s, many states have held their grandparent visitation statutes to be unconstitutional when the statute permits intrusion into an "intact" family. See Joan C. Bohl, "Current Trends in Grandparent Visitation Law" § 1.1, 1998 Wiley Family Law Update (1998); Cynthia L. Greene, Grandparents Visitation Rights: Is the Tide Turning?, 12 J. Am. Acad. Matrim. Law 51, 57 (1994); Laurence C. Nolan, Honor Thy Father and Thy Mother: But Court-Ordered Grandparent Visitation in the Intact Family?, 8 B.Y.U. J. Pub. L. 51, 57 (1993).
Typical of the view that a court cannot compel grandparent visitation into an intact family is Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In that case, the fit, married parents of two minor children defended against the paternal grandparents' suit for visitation. Citing both state and federal cases articulating a constitutional right to family autonomy, the court in Hawk invalidated Tennessee's grandparent visitation statute, which allowed grandparent visitation upon a finding that such visitation would be in the best interests of the child.
The federal cases that support the constitutional right to rear one's child and the right to family privacy also indicate that the state's power to interfere in the parent-child relationship is subject to a finding of harm to the child.
. . .
We, too, agree that neither the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions.
855 S.W.2d at 580-81. The court concluded:
We hold that . . . the Tennessee Constitution protects the privacy interest of these parents in their child-rearing decisions, so long as their decisions do not substantially endanger the welfare of their children. Absent some harm to the child, we find that the state lacks a sufficiently compelling justification for interfering with this fundamental right.
855 S.W.2d at 582. Accord Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); Brooks v. Parkerson, 265 Ga. 189, 454 S.E.2d 769, cert. denied 116 S. Ct. 377 (1995); Peterson v. Peterson, 559 N.W.2d 826 (N.D. 1997) (after parents reconciled and lived in intact family, order for grandparent visitation unconstitutionally intruded upon family); In re Herbst, 971 P.2d 395 (Okla. 1998). See also Castagno v. Wholean, 239 Conn. 336, 684 A.2d 1181 (1996) (narrowly interpreting statute to prevent interference with intact families); Steward v. Steward, 890 P.2d 777 (Nev. 1995) (although parents divorced, both had legal custody and were united in opposition to grandparent visitation; visitation statute could not be imposed on such a united front); In re Emanuel S. v. Joseph E., 161 A.D.2d 83, 560 N.Y.S.2d 211 (1990) (burden on parents' child rearing rights can be justified only in "extraordinary" circumstances and not based merely on the best interests of the child); Hoff v. Berg, No. 980208 (N.D. Sup. Ct. June 18, 1999) (1993 amendment to grandparent visitation statute which allows visitation only on a showing of the best interests of the child is facially unconstitutional); Williams v. Williams, 256 Va. 19, 501 S.E.2d 417 (1998) (parents constitutional rights take precedence over determination of best interests of child; grandparents may obtain visitation only where they demonstrate the child will suffer irreparable harm without such visitation); Van Cleve v. Hemminger, 141 Wis. 2d 543, 415 N.W.2d 51 (Ct. App.), review denied 141 Wis. 2d 985, 416 N.W.2d 297 (1987) (raising constitutional concerns).
The post-Hawk cases have also expanded the concept of what constitutes an intact family worthy of such constitutional protection. In Fisher v. Gaydon, 124 N.C. App. 442, 477 S.E.2d 251 (1996), the court held that a grandparent could not seek visitation of a grandchild in a "family" composed of mother and child, although there had been prior paternity proceedings. Although Webster's New Universal Unabridged Dictionary (1994) defines a "family" as consisting of a mother, father, and children, a court cannot be so constrained:
We acknowledge that both parents in McIntyre were living together with their children. We do not, however, read that opinion to hold that an "intact family" exists only when both natural parents are living together with their children. We believe a proper construction of that opinion is that a single parent living with his or her child is an "intact family" within the meaning of McIntyre. See Lambert v. Riddick, 120 N.C. App. 480, 484 n.2, 462 S.E.2d 835, 837 n.2 (1995) (dissenting opinion) ("[i]t would appear that an intact family should include a single parent living with his or her child").
477 S.E.2d at 253.
Other courts have also adopted quite elastic definitions of what constitutes an "intact family" such that a grandparent cannot petition for visitation. For example, in Tennessee, where the court has similarly held that grandparents may not seek visitation with grandchildren who are in an intact family, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), the Supreme Court has held that an intact family consists of adoptive parents and children, Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995). The Tennessee Court of Appeals has also held that an "intact family" consists of a step-parent, parent, and child living together, Floyd v. McNeely, No. 02A01-9408-CH-00187 (Tenn. Ct. App. July 5, 1995), or a single mother living alone with her children, McVay v. Blen, No. 02A01-9508-JV-00183 (Tenn. Ct. App. December 24, 1996), or a parent living with his/her children after the death of the other parent. Ellison v. Ellison, 25 Fam. L. Rep. (BNA) 1056 (Tenn. Ct. App. 11/4/98).
The most recent example of the elastic nature of the "intact family" entitled to constitutional protection comes from Florida. In Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), the biological mother of the children died, leaving the father with custody of the children. The father then remarried. The maternal grandparents then petitioned for visitation rights. The court examined that part of the Florida grandparent visitation rights statute, Fla. Stat. Ann. § 61.13 that provides as follows:
(1) The court shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interests of the minor child if:
(a) One or both parents of the child are deceased;
The court concluded that this section was facially unconstitutional:
The grandparents argue that there is a right of privacy connected with parenting decisions, but argue that the death of the parent triggers the basis for government intervention. They assert that Florida has a compelling interest in preserving the familial bond between grandparents and grandchildren, especially when one or both parents are deceased.
. . .
Under Beagle [declaring the statute unconstitutional as applied to intact, nuclear families], the State could not force grandparent visitation against the "express wishes" of [the father] before the death of the biological mother in the absence of demonstrated harm to the child. We find nothing in the unfortunate circumstance of one biological parent's death that would affect the surviving parent's right to privacy in a parenting decision concerning the child's contact with her grandparents.
720 So. 2d at 515. Accord Brunetti v. Saul, 724 So. 2d 142 (Fla. 4th DCA 1998) (section 752.01(1)(d), Florida Statutes (1997), authorizing grandparent visitation for children born out of wedlock is unconstitutional).
The question that is posed by the intersection of grandparent support law and grandparent visitation law is whether it is sound public policy to require grandparents to pay child support for grandchildren they might have no right to visit or see.
III. THE RIGHT OF GRANDPARENTS TO COLLECT CHILD SUPPORT FOR GRANDCHILDREN IN THEIR CUSTODY
As stated in the previous section, the child support obligation is primary to the biological parent. Thus, the child support obligation remains with the biological parents even though custody may be with non-parents. This principle has been applied to allow grandparents to sue for child support for the grandchildren in their custody. Stiefelmeyer v. Stiefelmeyer, 485 So. 2d 729 (Ala. Civ. App. 1986); Crayton v. Crayton, 944 P.2d 487 (Alaska 1997); Engle v. Engle, 323 So.2d 658 (Fla. 3d DCA 1975); Lizak v. Schultz, 496 N.E.2d 40 (Ind. 1986); Whitlatch v. Shitlatch, 206 Neb. 527, 293 N.W.2d 856 (1980); Bratton v. Jury, 435 Pa. Super. 110, 644 A.2d 1259 (1994). See also Department of Health and Rehabilitative Services v. Thomas, 477 So.2d 1053, 1055 (Fla. 5th DCA 1985), rev. denied, 488 So.2d 829 (Fla. 1986) (grandmother had a right to child support payments from the father, which right HRS became subrogated to by virtue of the grandmother's acceptance of AFDC benefits). In fact, the failure to a biological parent to pay child support to a grandparent while the grandchild is in the custody of the grandparent may constitute abandonment for purposes of termination of parental rights. E.g., Durfee v. Durfee, 796 P.2d 713 (Utah Ct. App. 1990).
As in any child support case, the grandparents' case for support from the biological parents must present evidence of the parents' incomes and ability to pay. Owens v. Eshelman, 712 So. 2d 472 (Fla. 1st DCA 1998); Hall v. Cawvey, 204 Ga. App. 8, 418 S.E2d 77 (1992).
Due to an increase in the number of grandchildren in the custody of their grandparents, and due to a provision of the Welfare Reform Act that reduces benefits for failure to use child support collection efforts, PRWORA § 103, 42 U.S.C. § 608(a)(2), grandparent advocacy organizations and state governments are now pushing grandparents to assert their rights to child support. Hope Viner Samborn, Child Support For Grandma, 85 ABA J. at 28 (June 1999).
The obligation of grandparents to pay child support for grandchildren they may not have a right to see can be seen as just a small part of the larger move away from the public support of children to the private support of children. So, too, can the requirement that grandparents assist in the enforcement of child support obligations against their children for the support of their grandchildren or else suffer a los of their own benefits be seen as part of the United States government's overarching public policy: child support by anyone, anywhere, but not us.
Looking for previous articles? Check the archive.